Shortly after Capturing the Friedmans came out, I was on a bus and overheard two people behind me discussing the film. “They were creeps!” they said, referring to Jesse and his father. “They were so guilty!”
I was stunned because I thought the film, though deliberately ambiguous, portrayed a clear miscarriage of justice. But I realized that the miscarriage of justice was probably clearer to someone who had studied other such cases and recognized the patterns. My fear is that, by the same token, my recent posting might be unpersuasive to people who don’t know the history and theory of the day care cases. And it occurs to me that I might be able to explain the problems with the Jesse Friedman case in a way that doesn’t require special knowledge. So:
When I began to research the Bernard Baran case, I quickly realized that there were only two possible theories of the case: either Bernard Baran had committed crimes of horrific depravity against vulnerable children or he had spent half his life in prison for something that never happened. (You might argue that a third theory is possible, one that splits the difference. Sure. You just have to make sure it’s a real theory and not a cop-out. If you find yourself saying, “Well, something must have happened,” you don’t have a theory. You have an evasion.)
All theories, of course, are provisional. A theory is good only as long as it continues to adequately explain the known facts. In this light, though, a heavy burden is on the prosecutors in the Jesse Friedman case. They have to explain:
…how it was possible for so many students to be repeatedly abused in a classroom without anyone noticing anything amiss
…why other students in the classroom claim never to have witnessed the abuse, which was supposed to have happened in “plain view”
…why some of the accusers now say that nothing happened, but describe instead intense pressure from investigators to say it did
…how it is possible to know whether any of the accusations were true if some of them were clearly fantastic (anal sex leapfrog?)
…how this case is different from other cases which, operating on the same assumptions and pursuing the same methods, have since been discredited
The theory that most adequately explains all of the above is the theory advanced by Jesse’s supporters: that Jesse and his father were victims of the same kind of hysteria-driven witch hunt that played out in the McMartin case, the Amirault case, the Kelly Michaels case, the Wenatchee case, the Little Rascals case, the…. well, you get the idea. Regarding the largest explanatory burden placed on Jesse’s defenders—why would the kids make these accusations if none of it was true?—they can simply state, “It happened all the time,” and adduce as evidence McMartin, Amirault, Michaels, Wenatchee, etc. (Another part of the explanatory burden is the guilty pleas. For those, I refer you to Jesse’s account.)
As I suggested in my post, the news accounts of the report, instead of providing solid refutation of the defense’s theory, offer random bits of information of the kind that all criminal cases throw up. So we get an uncle who now claims that Arnold Friedman confessed to him years ago; Jesse’s own trial psychiatrist calling him a “psychopathic deviant”; two sexually related infractions on Jesse’s prison record. The problem with these random bits of information is that they don’t do anything to address the difficulties I’ve outlined above. They don’t make the prosecution’s theory of the case any likelier. Indeed, they seem like diversionary flares sent up to distract people from the weaknesses of that theory.
It’s characteristic of such random bits of information that they can be hard to pin down. Who is this uncle? When did he make this revelation? Why did he wait so long to make it? Is he lying? Crazy? Misremembering? If he’s remembering accurately, what did Arnold actually say? Why? What was his state of mind? (Free answer: not good.)
The day care cases were built on just such random bits of information, information that sounded shocking, but was difficult to place in any concrete way. The Bernard Baran case began when a mother claimed that, while giving her four-year-old son a bath, she saw blood coming from his penis. The boy, she claimed, said Bernie had touched it. Quite disturbing, but on the other hand, huh? The child had not been in the day care center for several days. What could Bernie have done on Monday to make a child’s penis bleed on Thursday? For that matter, what would you actually do to a child’s penis to make it bleed? (It doesn’t help that this mother was not, um, the most trustworthy person in the world.)
Of course it’s shocking to think that Great Neck children might have been sexually abused in their after-school computer class, but how did it happen in real world terms? You’ve got to be able to at least imagine a where, when, and how. The problem with the day care cases was that the efforts made to pin any of this down produced only wilder and woolier accusations, until you ended up with anal sex leapfrog. (See page 10 of my Baran piece if you want to know how crazy things got in that case.)
I was asked the other night what draws me to these cases. I think it’s the toxic interplay of irrationality and injustice. I’ve always been fascinated by human irrationality. When I was in high school, I wrote a report on theories that Shakespeare didn’t write his plays. It changed how I viewed the world. It had never occurred to me before that people believe in spite of evidence and logic, that they marshal evidence and logic at the service of belief, the belief itself being overpowering, world-shaping, self-justifying, whether it’s the belief that the Earl of Oxford wrote Hamlet or that a monster has been loose in the local day care center. Perhaps for this reason, the district attorney’s “impartial analysis” was no more likely to find Jesse innocent than a council of Mormons would be likely, after impartial analysis, to acknowledge the golden plates as one of Joseph Smith’s more charming flights of fancy.
Such beliefs can be harmless but they can also be immensely destructive, and this is why I’ve never been happy with the epistemological shrug (can we ever really know what’s true?). It might not matter whether Shakespeare wrote his plays, but it matters that Bernard Baran spent 21 years in prison, that Jesse Friedman is still a registered sex offender, and that three of four women in Texas are still imprisoned nearly twenty years after becoming targets of the same kind of self-justifying delusions.
The district attorney’s report revealed once again how depressingly difficult it is to break through the walls of those delusions. What makes it difficult is that these delusions are ultimately about power; they reinforce and protect power, and to give them up is to yield power. The power of delusion is that it can shape not just facts but people to its will, which is how a gay day care worker can become a sex fiend and a suburban teenager a “psychopathic deviant.” Another reason that the DA’s office was unlikely to clear Jesse Friedman is that it would have deprived them of their power to tell him who he is.