by Hella Winston and Larry Cohler-Esses (The Jewish Week)
April 30, 2008
Brooklyn District Attorney Charles J. Hynes' shifting explanations of a widely criticized plea deal earlier this month for alleged child sex molester Rabbi Yehuda Kolko took several dizzying turns this week.
Contrary to earlier statements from Hynes' office, Sex Bureau Chief Rhonnie Jaus disclosed Tuesday that parents from two families whose children Rabbi Kolko allegedly molested had been willing to let their children testify. Hynes' spokespersons had earlier said otherwise.
But Jaus stressed that in the end, both families had signed affidavits agreeing to the deal after Rabbi Kolko had offered to plead guilty to a non-sex-related misdemeanor and receive a sentence of three years' probation.
"These were very small children," said Jaus. "Both parents were trying to be good parents. [But] nobody was rushing in to have their child in a courtroom. We felt the plea was in the best interest of the case."
Jaus said that both families had consented to the agreement "verbally and in writing," and that at one family's insistence, she had spoken with their attorneys in a related civil case as well. Hynes said that without their consent, he would not have allowed Rabbi Kolko to plead his charges radically downward.
But in a letter to Jaus obtained by The Jewish Week, one father indicated he had been pressured into signing his consent statement.
The letter, dated one day after the father signed the affidavit, said, "I understand what the district attorney wants from me and I will sign the letter," referring to the consent affidavit.
But the father added, "I feel justice was not served because I see the damage Kolko caused to our son." The Jewish Week is withholding the name of the family because of the alleged victim's age.
This father emphasized, "My son was ready to go to trial and we feel he would have done an excellent job and I am sorry to hear that [the case against] Joel Kolko will not proceed further."
"That's a letter just telling the judge about how one kid suffered," said Jaus. She voiced distress that The Jewish Week had obtained the letter from court case files, saying, "I'm not sure how you got those files. They're not supposed to be publicly available."
In an interview, the father, asked if he had felt pressured to "sign or else" made a motion of his fingers across his neck.
"I believe they were looking for angles out," he said.
The father added that the prosecutors had led him to believe they had plans to pursue Rabbi Kolko by some other routes, with heavier penalties for him down the road. Alternatively, he said, he thought they hoped to use Rabbi Kolko to prosecute the administrators of the school he taught at, Yeshiva Torah Temimah in Flatbush, on charges of knowingly allowing him to molest children.
"If there's no deal involved, and this is what they gave him, shame on them!" he said.
The new disclosures are the latest in a series of often contradictory explanations Hynes' office has offered over the last two weeks for the Kolko plea deal, which has attracted censure both in Brooklyn's Orthodox community and from legal experts. A series of previous actions perceived by some as lenient towards prominent Orthodox institutions or individuals accused of wrongdoing have led to criticism — dismissed by Hynes — of his close relationship with the community's leadership.
Rabbi Kolko, 62, a teacher at Torah Temimah for about four decades, faced felony charges of touching two first-graders in their sexual areas and of forcing an adult former student to touch him during a visit to the school. Under the plea agreement, Rabbi Kolko, made no admission of sexual wrongdoing. He will not have to register as a sex offender and pleaded guilty only to a misdemeanor.
Outside the case, others — many of them now beyond the legal statute of limitations — have given accounts of being molested by Rabbi Kolko as long as nearly four decades ago. Five former students have filed a civil suit against Torah Temimah, alleging school administrators knew about Rabbi Kolko's molestation of themselves and other students over many years but sought to conceal it and intimidate students who spoke out.
A Hynes spokesperson said right after the plea deal was reached that Hynes had agreed to it because the families of the two children alleging the rabbi had molested them would not let their sons testify. Hynes has since offered a series of revised accounts. In the first revision, soon after, Hynes said through a spokesman that one of the families had, in fact, agreed to let their son testify, but only via closed-circuit TV, and the other not at all.
Since then, Hynes or his aides have put out further, often inconsistent, accounts:
- Last week, via a spokesman, Hynes acknowledged he had applied for judicial permission for one of the alleged child victims to testify via closed circuit TV — but had withdrawn this motion before the judge could rule on it. Spokesman Jerry Schmetterer said his boss did so because "the bureau chief of the sex crimes unit did not have confidence the approval would be obtained and therefore made the decision to settle on the reduced charges."
- In an interview Tuesday, Hynes said that "the victim's family wanted the case resolved the way it was" — and denied that he had ever applied to the court for permission to use a camera for one of the children.
- He called back shortly afterward and said he had misspoken — that, in fact, he had applied to the court for CCTV testimony but withdrew the motion because such judicial permission "has never been granted in the history of the world." Hynes emphasized that families for both of the alleged child victims had signed affidavits consenting to the plea deal.
- Jaus, the Sex Crimes bureau chief, told The Jewish Week Tuesday that the same father willing to allow his son to testify in open court for the original sexual molestation charges was "adamant" that he did not want Rabbi Kolko to be sentenced to prison. Yet the trial at which he was willing to testify, if it had taken place and led to a conviction, would almost certainly have meant a jail sentence for Rabbi Kolko.
Nevertheless, Jaus appeared to offer the most coherent account of what happened. One family, she said, was prepared to let their 10-year-old son testify against Rabbi Kolko only via CCTV, under a law that allows minors in sexual abuse trials who are judged "vulnerable" by the court to do so in a quiet, separate room, out of the presence of prosecutors, defense attorneys, the accused molester and courtroom onlookers. The provision is intended to minimize "mental or emotional harm" to such children from the testifying experience.
The court scheduled a hearing on Jaus' motion for March 31. But she withdrew her motion before this could take place because Rabbi Kolko's attorney offered to plead guilty to the reduced charges.
In deciding to accept the offer, Jaus said, the wish of one family not to see Rabbi Kolko do prison time was a factor, along with the rabbi's advanced age, poor health and lack of a prior record.
Another factor, she said, was deep uncertainty over whether the judge would grant her motion to allow testimony via CCTV for the other child, as his family required.
"It's an extraordinary step to have it granted," she said. "In my experience, we have not had it granted in my bureau. I think it was used once before I came."
This was a revelation to the boy's father, who stated vehemently that prosecutor Marc Fliedner told him in a late March phone call that the court had, in fact, approved the CCTV motion. "He said, 'We got it,'" the father insisted. "He said, 'Great news; the judge granted it.'"
Jaus stressed that only a hearing had been granted for late March. A message left for Fliedner was not returned.
The State Division of Criminal Justice Services, which provides media equipment for such cases, reports that courts statewide have employed their cameras 17 times since 1998 for children judged vulnerable. Legal scholars say judges are often reluctant to grant this motion out of concern that it undermines the constitutional right of a defendant to confront his accuser.
Still, case law has found this alternative acceptable when judged necessary. And if any case might be seen to meet the bar, it could well be this one.
As Dr. Simcha Y. Cohen, a psychologist and rabbi counseling the alleged victim, noted in an affidavit in support of the motion, "Within the Orthodox community ... confrontation or challenge of rabbinic leaders is strongly discouraged. This dynamic comes more intensely into play when the rabbinical leader is a teacher in a yeshiva setting, and the member who is being required to communicate such confrontations is a child."
Jaus nevertheless defended her decision to abandon this effort once Rabbi Kolko's lawyer put the plea bargain opportunity before her.
"I thought it was an opportunity for the children to be spared having to testify in court," she said. "Getting approval for CCTV was iffy." And even if it came, she said, "The case rested solely on the two kids. There was no other corroborating evidence. It's their words standing alone."
Professor Marci Hamilton of Yeshiva University, an expert in child abuse cases, voiced dismay at this assessment. "If you have just one child, you have a tough case," she said. "But if you have two, you have corroboration.
"This has all the earmarks of the usual prosecutors' deference to religious groups," she said. "I think it's hard to explain."
But Jaus said that thanks to TV shows like "CSI," "Many people expect to see corroborating evidence such as medical evidence, fingerprints. DNA. We just had the word of these children."
Asked about the possibility her deal could now allow Rabbi Kolko, in the absence of a sex charge conviction, to go back to working with children, she replied, "He's now pleaded guilty to two counts of endangering the welfare of a child; two counts with two separate children. I'd imagine most schools would not want someone who's been convicted of something like that."