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Picture of injustice
Capturing the Friedmans is a riveting movie about a family destroyed by allegations of child sexual abuse. Too bad it fails as a search for truth.

CAN A DOCUMENTARY film shatter official lies and piece together something like the truth of a criminal case? Of course it can. Fifteen years ago, Cambridge-based documentary filmmaker Errol Morris did just that in The Thin Blue Line, which examined the case of a death-row inmate wrongfully convicted of murdering a Texas police officer. Morris’s searching examination of the real culprit — who had been the main witness against the man wrongly convicted of the murder — unmasked an outrageous prosecution and led to freedom for the innocent man.

But what are we to make of a documentary that holds back from examining the full truth? More important, what are we to make of a documentary filmmaker who fails — perhaps deliberately — to include all the relevant information? In works of fiction, such as Akira Kurosawa’s classic Rashomon, pure art can govern filmmaking decisions. There is no moral problem with setting aside the concept of objective reality and allowing many subjective experiences to co-exist in multiple unresolved narratives. In nonfiction, however, dealing with real people and real events creates a moral obligation not just to create good art, but also to expose, in as responsible a manner as possible, the underlying truth.

Much has been written already about Capturing the Friedmans, Andrew Jarecki’s documentary about a family ripped apart by sex-abuse allegations, which won the Sundance Film Festival documentary Grand Jury Prize and has since opened up in theaters. While most reviews were positive (the New York Times’ Elvis Mitchell lauded the film’s "engagingly evenhanded" direction and praised Jarecki for not "push[ing] things any further through heavy-handed assessment"), a few were negative (Slate’s David Edelstein scolded: "Capturing the Friedmans delivers its information in teasing drips and drabs and never allows ... an objective summary of the catastrophe"). But none, at least as far as I’ve been able to tell, has taken Jarecki to task for making what is, at heart, an irresponsible film — even though it is also an artistic masterpiece. The Phoenix’s Peter Keough came closest when he observed: "Given the magnitude of the apparent injustice and the grotesque abuses of power plainly evident [in the case], it seems clear he should have been more focused on uncovering the truth along the lines of Morris’s The Thin Blue Line or Joe Berlinger & Bruce Sinofsky’s Paradise Lost" (see "Caught on Tape," Arts, June 13).

I admit that as a criminal-defense and civil-liberties trial lawyer, I may not be the best person to render such a judgment. There can be little doubt that I fail to fully appreciate an artist’s right to take "poetic license" here and there. But my occupation and experience let me see patterns that might not be obvious to those unfamiliar with the sometimes arcane ways of the legal system.

Jarecki’s film recounts the story of the Friedmans, a middle-class Jewish family from Great Neck, New York, whose lives were torn apart when, in 1987, the father, Arnold, and the youngest of the family’s three sons, Jesse, were accused of committing sexual abuse against dozens of children. As I watched the documentary, it didn’t take me long to recognize not only the telltale signs of a concocted prosecution — including young witnesses who had been induced and even coerced into giving false testimony — but also the signs of what criminal lawyers refer to as a "bullshit pact," in which a defendant pleads guilty to a crime that he did not commit to gain a lighter sentence or to get prosecutors to drop criminal charges against a loved one.

QUICK: WHAT DID the 1980s give us besides voodoo economics, big hair, and Michael Douglas in Wall Street? A nationwide panic about child sexual abuse. In those years, we saw a number of absurd but highly effective prosecutions of innocent people involved in the care or teaching of children. Here in Massachusetts, we had the infamous Fells Acres Day School prosecutions, where matriarch Violet Amirault, her son Gerald, and her daughter Cheryl were convicted by juries and received long sentences for sexually abusing their young charges in ways that obviously never happened nor could have happened. The fantastic tales — involving, for example, magic clowns, space ships, and naked children bound to trees on a busy urban street in broad daylight — embedded in the heads of the young "victims" were recounted to gullible judges and juries caught up in the national child-sex-abuse hysteria. Gerald Amirault remains in a Massachusetts prison, since neither our Supreme Judicial Court nor former acting governor Jane Swift had the courage to say what has become increasingly obvious to serious students of the case: the Amiraults are innocent.

We also had the less-well-known, but equally troubling, prosecution of Bernard Baran, who, as a 19-year-old child-care worker in Pittsfield, was the first Bay State victim of the child-sex-abuse frenzy. He was convicted and sentenced to life in 1985. Both the interrogation techniques used to get the children’s stories and the phony "scientific" evidence — such as the assertion that certain structural aspects of the young girl’s vagina indicated forced penetration, when in fact such aspects are common and indicative of no such thing — presented to the jury in his case have long since been discredited, but Baran still rots in prison. And Baran’s homosexuality, of which prosecutor (now state court judge) Daniel Ford made sure to inform the jury, didn’t help the cause of truth and justice, since homophobia ran even more rampant in the ’80s than it does now. (Disclosure: I am a member of both the Baran and Amirault post-conviction legal-defense teams.)

California, meanwhile, saw the equally infamous McMartin Preschool case, in which children claimed to have endured sadistic, ritual sexual abuse. Although no one was ever convicted, the case took more than six years to wend its way through the courts and cost the state of California more than $10 million. In New Jersey, Kelly Michaels, a 23-year-old day-care teacher at the Wee Care Nursery School, stood trial for, among other things, making children lick peanut butter off her genitals. She was found guilty of 115 counts of child abuse and sentenced in 1988 to 47 years in prison. In 1993, however, she successfully appealed her prosecution and was released from prison. And Washington State saw the notorious Wenatchee cases, in which prosecutors went after alleged child "sex rings" run, in part, from a local Pentecostal church.

All these prosecutions and others have been discredited with the benefit of time, calmer reflection, and scientific research into the methods by which false memories, and hence false testimony, can be suggested to and implanted into the minds of young "victim" witnesses. Investigative writers like Debbie Nathan, a paid consultant to Jarecki who appears in Friedmans, journalists and editorialists like the Wall Street Journal’s crusader Dorothy Rabinowitz, and serious scientists like Maggie Bruck, Elizabeth Loftus, and Nicholas Spanos have cast the cold eye of rationality upon these modern-day witch-hunts and exposed the ugly methods used to convict innocent citizens of horrible crimes that obviously never took place.

Jarecki had the opportunity to do the same in his film about the Friedmans. Instead, he adopted a peculiar approach that failed to follow obvious lines of questioning and left out relevant details. He then marketed the film with an opportunistic, if not outright cynical, strategy that avoided expressing a conclusion about the Friedmans’ guilt or innocence. Nathan, co-author of Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch Hunt (Basic Books, 1995), who believes unequivocally that the Friedmans are innocent, noted in the Village Voice that Jarecki pitched "the film as a Long Island Rashomon." This marketing strategy, "based on ambiguity," Nathan suggests, was inspired by the fact that viewers at January’s Sundance Film Festival were more or less evenly split over the Friedmans’ guilt or innocence. The subsequent promotional campaign, featuring ads with the teaser "Who do you believe?", suggests that the film’s ambiguous approach to a very clear case of injustice may have had as much to do with marketing as with art.

But then, maybe I, the lawyer, expect too much of the filmmaker, whose only previous professional cinematic experience was as co-founder of the telephone and online movie-listings service Moviefone. It’s actually remarkable to think of how the inexperienced Jarecki came upon his subject matter. Initially, he was working on a film about ... clowns. As it happens, Jesse Friedman’s older brother David is one of the most celebrated and successful party clowns in New York City, if not the country (Susan Orlean once profiled him in the New Yorker). As Jarecki delved further into the life of David Friedman the party clown, he stumbled upon the Friedman family tragedy. After he hired Debbie Nathan to consult on the film, she told Jarecki about the 25 hours of home video that David had filmed of the family as the crisis unfolded. Ironically, much of the visual power of Jarecki’s film depends on clips from David’s remarkable home videos — which Jarecki edited with considerable skill. Still, perhaps I should allow that as a novice filmmaker, Jarecki may simply have lacked the confidence to attack the prosecution head-on and make an unequivocal statement about what had been done to the family for whom he clearly had much sympathy.

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Issue Date: July 11 - July 17, 2003
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