By Hella Winston (The Jewish Week)
July 30, 2013
On Monday, a Brooklyn judge for the second time postponed the start of chasidic abuse whistleblower Sam Kellner’s trial. The move, which effectively delays the trial until after the Democratic primaries in which Brooklyn District Attorney Charles Hynes is seeking re-election, came in response to a request from prosecutors to continue an investigation that court documents show they began 10 months ago but did not disclose to Kellner’s attorneys until the eve of his first trial date, July 8. Kellner’s attorneys filed a new motion on July 26 to dismiss the case.
Kellner, who after his own son was abused was instrumental in helping prosecutors build a sex abuse case against Baruch Lebovits, a cantor and prominent member of the Munkacs chasidic community, is charged with paying a witness The Jewish Week refers to as “Yoel” to falsely testify against Lebovits, and with trying to extort the Lebovits family. Kellner’s trial is now set to begin on Sept. 30, almost three weeks after the Democratic primary in which Hynes is running for re-election to a seventh term. His opponent is former federal prosecutor Kenneth Thompson.
Yoel had reported his abuse by Lebovits to police in 2008 and was set to testify against him at trial. However, in late 2009, communicating through a prominent lawyer named John Lonuzzi, he stopped cooperating with sex crimes prosecutors but did not deny his abuse. Lebovits was convicted on the testimony of another witness in 2010 and sentenced to 10 to 32 years in jail, but the verdict was overturned on a technicality and a new trial, which has not yet occurred, was ordered. After the conviction, Lebovits’ attorneys supplied the Rackets Division of the Brooklyn District Attorney’s office with an affidavit in which Yoel claimed he had been paid by Kellner to fabricate his allegations against Lebovits. Yoel then appeared at the district attorney’s office, accompanied by Lonuzzi, to make those allegations to prosecutors in person, and subsequently testified to them in the Kellner grand jury.
In May, a source came forward to The Jewish Week with a recording of a secretly taped conversation in which Yoel says that a man named Zalmen Ashkenazi told him to “go against” Kellner and got him a lawyer. Around the same time The Jewish Week learned of the recording, Kellner’s attorneys alerted prosecutors to its existence and contents, and urged them to question Yoel, who has been living in Israel, about his statements on it. The prosecutors eventually did so and, in two separate interviews in late June and early July, Yoel not only contradicted his past sworn statements about Kellner — effectively destroying his credibility as a witness against him — but acknowledged that Ashkenazi had been paying for his travel, apartment, school and legal expenses; Yoel also told prosecutors he was not allowed to travel to the United States without Ashkenazi’s permission.
Ashkenazi’s brother, Berel, was a character witness at Lebovits’ trial. At the trial, prosecutors presented documentary evidence (a rabbinical court ruling) indicating that Berel had attempted to suppress the witness’s testimony, promising that he would “help” the witness with whatever was “in his ability” after the witness removed “himself altogether from the [secular courts]” (prosecutors also had police notes indicating that Berel offered the witness money to drop his charges).
On July 8, the district attorney obtained an adjournment of Kellner’s trial to investigate these “new” revelations and, in particular, Ashkenazi’s relationship to the Lebovits family. However, records turned over to the defense in early July indicate that prosecutors had obtained evidence back in September of 2012 that Ashkenazi had been paying for Yoel’s flights to and from Israel (where he is currently living). According to one of Kellner’s attorneys, Niall MacGiollabhui, prosecutors claim to have sought these records after a friend of Yoel’s told a DA investigator in May 2012 that before Yoel was scheduled to testify against Lebovits at trial, Lebovits’ eldest daughter had threatened him and he had fled to Israel “out of fear.” It appears that the friend’s statements prompted prosecutors to obtain Yoel’s travel records and, through them, discover that Zalmen Ashkenazi was paying for his flights.
The prosecutors’ reasons for requesting a second adjournment — the need to further investigate the connections between the Lebovits and Ashkenazi families — seem in direct contradiction to statements made Hynes last week to radio host Zev Brenner. In an interview in which Hynes spoke at some length about his re-election campaign, he claimed that the investigation is “unrelated to the core charges of Kellner” and a “peripheral issue.” He also added that the Kellner case has “nothing to do with Lebovits.”
There is reason to believe that Hynes may have been referring to an Internal Affairs Bureau investigation into Det. Steve Litwin, the sex crimes detective who worked on the Lebovits case. Sources familiar with the Kellner case have confirmed to The Jewish Week that in Yoel’s interviews with prosecutors in June and July, Yoel accused Litwin of colluding with Kellner to force Yoel to fabricate his allegations against Lebovits.
While The Jewish Week has learned that prosecutors did not believe these allegations to be credible, the district attorney nonetheless deemed it necessary to refer them to Internal Affairs. Prosecutors on Monday did indicate that in addition to their investigation into the Lebovits and Ashkenazi families, an external agency was conducting an investigation, the subject of which was under a protective order.
A spokesman for the district attorney did not respond to an e-mail seeking comment about the Litwin investigation.
On that same radio show, Hynes also said that he believed that “there was a substantial effort by Mr. Kellner to gain money by making up stories,” adding that “I think we have a substantial case.”
In a column in The New York Times on Tuesday, Michael Powell quoted legal ethics expert Stephen Gillers, who offered the opinion that in publicly opining on Kellner’s guilt, Hynes 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.”
Meanwhile, Kellner’s attorneys’ motion to dismiss the charges alleges “pervasive evidence of serious investigative and prosecutorial misconduct” in the case. Kellner’s lawyers argue that it is “sickeningly clear” that Yoel was the victim of “horrific sexual abuse and that, after he reported the abuse, he was terrorized and intimidated by his abuser and his abuser’s supporters to the point of dropping the case.
“Worse again,” the motion continues, “he was them manipulated into denying the abuse ever happened, and into falsely implicating Sam [Kellner], a manipulation the District Attorney accepted without question for over three years, until the prospect of the utter shamefulness of it all being exposed at trial was unavoidable. Every day that [Yoel] remains in this case is another day that his abuse and this shamefulness continues.”
The motion closed with an assertion that “Justice demands that [Yoel] be set free from his continued abuse and that the counts in the Indictment that rely on his continued debasement be dismissed. The confidence of the public in the criminal justice system demands no less.”