Raising Questions of Professional Conduct as Brooklyn’s Prosecutor Pursues Votes

By Michael Powell (The New York Times)
July 29, 2013

In search of love and votes, Charles J. Hynes, the Brooklyn district attorney, cannot seem to stop tripping over himself.

Last week, he went on a television and radio show for the Orthodox Jewish community and denounced Sam Kellner. Bearded and intense, a bubbling fountain of words, Mr. Kellner is one of the rare few in the Hasidic community who spoke publicly about the plague of child sexual abuse. He helped the district attorney build cases against prominent Hasidic leaders, including a man accused of molesting Mr. Kellner’s own 16-year-old son.

Or at least Mr. Kellner spoke until Brooklyn prosecutors turned around two years ago and charged him with trying to extort his son’s accused abuser, the Satmar cantor Baruch Lebovits.

The weakness of the case against Mr. Kellner is difficult to overstate. On Monday in State Supreme Court, Mr. Hynes’s prosecutors pleaded for more time to reinvestigate their rapidly disintegrating case.

None of which appeared to have given pause to Mr. Hynes. “I believe there was a substantial effort by Mr. Kellner to gain money by making up stories,” he told the host of the program, Zev Brenner, last week. “I think we have a substantial case.”

It appears Mr. Hynes, who often emphasizes the management experience he has accumulated over many decades, has violated the state’s rules of professional conduct, which prohibit prosecutors from offering “any opinion as to the guilt or innocence of a suspect” in a criminal matter.

“That’s an expression of his opinion of Kellner’s guilt, and he can’t say that,” said Prof. Stephen Gillers of New York University, one of the nation’s leading legal ethicists. “Hynes may have tried to stop short, but he didn’t stop short enough.”

The case against Mr. Kellner comes with curious aspect piled upon curious aspect.

Mr. Lebovits’s lawyers pounced upon the indictment of Mr. Kellner. They pointed to it, and to legal technicalities, and persuaded a state appeals court to overturn their client’s conviction.

The two lawyers for Mr. Lebovits — Arthur L. Aidala and Alan M. Dershowitz — make a formidable and intriguing pair. A respected trial lawyer, Mr. Aidala is a former Brooklyn prosecutor and a former campaign manager for Mr. Hynes. He is the registered agent for the Charles Hynes Association. Mr. Aidala, his family, and his legal firm contributed $5,100 to the district attorney last year.

Mr. Dershowitz, meanwhile, rendered his own service to Mr. Hynes. Earlier this year, Pro Publica, a respected investigative news Web site, published a critical account of Michael F. Vecchione, a close friend of Mr. Hynes and chief of the district attorney’s rackets bureau. The news site’s account detailed “a staggering array of misconduct” by Mr. Vecchione as he led the prosecution of a young black man, Jabbar Collins, in the killing of an Orthodox Jew. After 15 years in prison, a court overturned Mr. Collins’s conviction; he is now suing the Brooklyn district attorney’s office and Mr. Vecchione.

Mr. Dershowitz and the defense lawyer Benjamin Brafman wrote a public letter to Pro Publica, arguing that its account relied on “unproved claims made in an adversarial complaint” and that this was “wrong and defamatory.”

As it happens, Mr. Vecchione is the man who made the decision to try Mr. Kellner. As it also happens, Mr. Vecchione’s credibility took a seismic hit last month when he gave a deposition in the lawsuit brought by Mr. Collins.

Mr. Vecchione is a proud and confident fellow. As recently as 2006, he declared in a court affidavit that “I and I alone determined the course of our investigation.” He insisted, “I still have a clear recollection of it.”

Under questioning by Mr. Collins’s lawyer last month, Mr. Vecchione suffered rapid memory loss. Asked why his signature appeared to be forged on key documents, and asked about all manner of irregularities, Mr. Vecchione took rhetorical refuge in a forest of iterations of “I don’t recall.”

He says these words over 300 times.

This is an election year, and you can’t begrudge politicians searching where they must for votes. The Orthodox community votes in great blocs, and they have been good to Mr. Hynes.

But as I sat on a bench in State Supreme Court on Monday and spoke to Mr. Kellner, and he spoke of his life since the indictment, you wonder about the choices made by Brooklyn prosecutors. “To be screamed at in the street, people say, ‘You’re an informer.’ ” He shakes his head. “Trust me, it ain’t easy.”