Picturing Justice, the On-Line Journal of Law and Popular Culture

Shubha Ghosh
Professor of Law at the University at Buffalo Law School


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The documentary itself had turned into pornography, not because of the lurid details or the occasional shots of child rape, but because this poor family lay emotionally naked in front of me and I had no idea how to react.

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by Shubha Ghosh

The appeal of the movie Capturing the Friedmans rests on two obsessions in popular culture. The first is the fascination with family drama, especially ones involving dysfunction and sexual trauma. The second is the interest in legal cases, especially ones involving miscarriages of justice or, at least, ambiguity in the result of a legal process. Director Andrew Jarecki delivers on both counts and hence the almost unanimous rave that he has created a masterpiece with his first film. I respectfully dissent.

We are told early on that the arraignment of Arnold and Jesse Friedman in 1987 was the first time that a television camera was allowed into a courtroom in Nassau County. And so we witness the beginning of voyeurism in the courtroom, the birth of law as spectacle. The need to watch and be watched explains why the Friedmans themselves recorded many of the family meltdowns and agreed to allow Mr. Jarecki to include their home movies as part of his documentary. They may have been motivated by the need to exonerate themselves or reopen the case, as Jesse Friedman contends. But the need to be seen seems the primary motivation of this family. The Friedmans were, on the surface, a typical middle class household in Long Island that was put under extensive scrutiny as a result of the hundreds of charges of child molestation brought against the father, Arnold, and the youngest son, Jesse. In many ways, they can never escape public scrutiny, and it is understandable that once the public begins to stare, it is hard to ignore or avoid the gaze. Only Seth Friedman, the middle son who did not participate in the documentary, seems to have been able to flee the limelight. The rest of the family seems captured in a need to constantly perform and replay the traumatic episodes from 1987-1988.

But what do we get from watching? Half an hour into the film, when Emily Friedman, Arnold's wife, describes her revulsion at learning that her husband collected child pornography and was possibly a pedophile, I felt dirty. The documentary itself had turned into pornography, not because of the lurid details or the occasional shots of child rape, but because this poor family lay emotionally naked in front of me and I had no idea how to react. At a cerebral level, I knew that Arnold was guilty of something, perhaps only of possessing child pornography and possibly having sexual relations with young boys (maybe even his brother) at some point in his life. I also knew that perhaps all of the charges against Arnold and Jesse were the result of either hysteria or hypnotically induced memory. But at an emotional level, I kept asking myself why do we need to know all this, why should we be so fascinated.

On one level, Capturing the Friedmans fits into a line of films that expose the sickness of middle class suburban life in the U.S. The Academy bestowed its highest honor on one film in this genre when American Beauty was given the award for Best Picture in 1999. However, the films of Todd Solondz, particularly Happiness, are the true masterpieces. There is much in common between Happiness and Capturing the Friedmans. Both occur in the weird backwaters near New York City, Happiness in suburban New Jersey, Friedmans in suburban Long Island. Both involve a seemingly stable and respectable paterfamilias exposed as a pedophile. Both see the social and familial dysfunction as rooted in repressed homosexuality and a repressive heterosexuality. But Happiness has so much more edge, largely because it is fictional. In contrast, Capturing the Friedmans is so real that it simply becomes creepy to watch or even write about. The real sickness being exposed is that we are willing to pay and watch this mirror reflection of what we all may really be.

The mirror reflects not only the sickness of suburban life, but also the disturbing workings of the legal system. Arnold and Jesse Friedman were convicted almost exclusively on the basis of testimonial evidence. Arnold pled guilty to make Jesse's trial easier, and Jesse pled guilty because of the fear that he would fare badly in a trial, especially in light of his father's guilty plea. Post-McMartin, it is easy to say that they would have been better off going to trial and pointing out the lack of physical evidence and the implausibility of the testimony. Pre-McMartin, however, the hysteria that child sex abuse generated and perhaps the state of lawyering in Nassau County at the time seemed to preclude that stratagem. As a law professor, I was disturbed by the ease with which the state was able to imprison these two men, one of whom was probably totally innocent, the other guilty of perhaps only displaced and repressed sexual tendencies. Many commentators have compared the movie to Rashomon, with its play of multiple perspectives on a set of facts known to the audience. In fact, Capturing the Friedmans is not about multiple perspectives; it is about the elusiveness of facts in the legal system, the slippery line between what we know as fact and what we think we know as fact.

The best example of this theme is a five minute or so segment roughly two-thirds of the way into the film, in which the director cuts between Jesse Friedman and his lawyer Mr. Panaro. We are shown earlier that Mr. Panaro's office is a few doors down from what appears to be a strip club and an adult bookstore in Massapequa, Long Island. He slickly dismisses Arnold Friedman as a pedophile, child molestor, and abuser of his son Jesse. Mr. Panaro is clearly replaying his defense in the case. Cut to Jesse who categorically denies every one of Mr. Panaro's allegations about child molestation and abuse by his father. This discrepancy is not simply a matter of perspective. It is about the plaything of lawyers: facts, perceptions, and beliefs. Director Andrew Jarecki, wittingly or accidentally, reveals a great deal of what the legal system is built upon.

There are, however, great movies that expose the inadequacies of our legal system. Errol Morris' The Thin Blue Line, about a wrongful death penalty conviction in Texas, is a classic because not only does the director capture the confession of the true killer on tape, he also demonstrates how the mistake could have occurred. Andrew Jarecki, on the other hand, exposes, at best, sloppiness in the legal system. Instead of a solid critique of the legal system, we see, presented before us, a truly dysfunctional family, which , like every family, is dysfunctional in its own way. What we should see is how hysteria and facts are fungible commodities in the legal system. In an age of terror alerts, profiling, and detention of aliens for possible terrorist activities, it is sad that Mr. Jarecki did not provide us with a film more reflective of what we should be noticing in our times.

Posted August 8, 2003

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