By Hella Winston (The Jewish Week)
December 11, 2013
The Brooklyn District Attorney’s Office possessed compelling evidence that the allegations lodged by a key witness against chasidic abuse whistleblower Sam Kellner were false, but used that testimony to indict Kellner anyway, The Jewish Week has learned.
This evidence, known to the district attorney over a year before Kellner’s arrest, was given to his lawyers only last week. These new revelations bolster existing evidence that in the Kellner case, the district attorney may have allowed one division of the office (Rackets) to use highly questionable evidence to undermine the work of another (Sex Crimes), apparently in the service of a convicted child molester whose lawyers have close ties to Hynes.
Prosecutors were set to dismiss Kellner’s case last month, but were overruled by DA Charles Hynes’ controversial Rackets chief, Michael Vecchione. The case is now scheduled for trial on Jan. 21. Vecchione is resigning this week.
In 2008, Kellner’s son was allegedly molested by Baruch Lebovits. Kellner reported the incident to law enforcement and, with the encouragement of a sex crimes detective, found and brought two additional alleged Lebovits victims forward. One of them, “MT” (previously referred to by The Jewish Week as “Yoel”), abruptly stopped cooperating with the prosecution. Another alleged Lebovits victim, “YR” (previously referred to as “Zev”), did testify against Lebovits.
As a result of that testimony, Lebovits was convicted in March of 2010 of sexual abuse and sentenced to 10 to 32 years in prison. (The conviction was reversed on appeal because of a prosecution violation; a new trial was ordered, but has yet to occur).
In 2011, a year after Lebovits’ conviction, Kellner was arrested on charges that he had paid MT to falsely testify years earlier to a grand jury that he had been repeatedly orally and anally sodomized by Lebovits. Kellner was also charged with having attempted to extort money from the Lebovits family in exchange for a promise that he would persuade the witnesses to drop their cases against Lebovits.
The arrest came as a shock to Kellner, who learned when he was taken into custody that he had already been indicted; this meant that Kellner was not able to present critical exculpatory evidence (much of it in the DA’s possession) to the the grand jury.
Law enforcement records show that members of the Lebovits family, their lawyers and supporters brought the evidence against Kellner directly to the Rackets Division in the months after Lebovits’ conviction.
A July story in The New York Times noted that Lebovits trial attorney Arthur Aidala — a former Brooklyn prosecutor who has been a campaign manager and contributor to Hynes, as well as the vice president of Hynes’ nonprofit foundation — is considered by some in the DA’s office to have “undue” influence with Hynes. Last May, Lebovits’ appellate attorney, Alan Dershowitz, co-authored a letter with attorney Ben Brafman to the investigative news site Pro Publica praising Vecchione, who is facing serious allegations of prosecutorial misconduct.
Lebovits’ lawyers apparently used Kellner’s arrest to persuade an appeals court to release Lebovits to house arrest pending his appeal. They also used the criminal charges against Kellner — for which they had furnished most of the evidence — to move to vacate Lebovits’ guilty verdict, based on the “newly discovered” Kellner evidence. (This motion became moot when the verdict was reversed on appeal.)
The district attorney submitted a response defending the Lebovits conviction. The Jewish Week requested a copy of it, which is part of the public record, from the DA in September, but received no answer. However, two sworn statements submitted to the court as part of the district attorney’s response were provided to Kellner’s lawyers last week by a prosecutor unconnected to Kellner’s case. They were subsequently shared with The Jewish Week.
These sworn statements indicate that both the Sex Crimes prosecutor and the detective on the Lebovits case not only believed that MT was a genuine victim of Lebovits (and, by implication, not paid by Kellner to fabricate his allegations), but also had persuasive information that MT had been pressured and intimidated into backing out of Lebovits’ trial.
For example, in her statement, the Lebovits prosecutor, Miss Gregory, details how she was contacted in November 2009, a few weeks before MT was set to testify against Lebovits at trial, by a lawyer named John Lonuzzi, claiming to represent MT. According to Gregory, Lonuzzi told her that MT was withdrawing from the case because “the pressure” was causing him “severe stress.” Lonuzzi also informed Gregory that, if called to testify, MT would plead the fifth because parts of his grand jury testimony “ ‘might’ have been embellished.”
Gregory notes that she “arranged multiple appointments” to speak with Lonuzzi and MT in person, but all were cancelled. She also served MT with four subpoenas, but he did not comply with any of them. Indeed, Gregory said she “was never able to speak with MT to confirm what Mr. Lonuzzi had told me about MT’s reasons for becoming uncooperative after twenty-one months of full cooperation” with the DA’s office.
Gregory also states that Aidala furnished an entirely different explanation to the court for Lonuzzi’s representation of MT, claiming he was told by Lonuzzi that MT’s parents had “found out” that Lebovits might take a plea in the case and, if so, did not want MT to be “subjected to a trial.”
These reportedly discrepant stories are troubling to Pace University law professor and prosecutorial ethics expert Bennett Gershman.
“Somebody’s lying,” Gershman told The Jewish Week. “There is an appearance that [these lawyers] were using their powers to put pressure on MT not to go forward with his truthful allegations against Lebovits, which would be highly unethical.”
A call to Lonuzzi was not returned. An e-mail to Aidala did not receive a reply.
Indeed, in his affidavit, the case detective, Steve Litwin, states that he found MT’s claims of abuse by Lebovits “extremely credible” and that MT and his father were “cooperative with the investigation.” He, too, received a call from Lonuzzi around the same time as Gregory, and claims he was told Lonuzzi represented MT and that he should have “no further contact with” MT.
However, sometime before Lebovits’ trial, Litwin states, MT contacted him and “asked me why I had not called him.” When Litwin replied that he had been instructed by Lonuzzi not to speak with MT, MT told him “that he had not retained this lawyer but that someone else had.” Litwin goes on to note that MT arranged to meet with him the following day and told him his “family could not know that he had contacted me.” According to Litwin, “MT said he had been pressured and that he was afraid to say what had happened. MT said that he had been told not to talk to me or to go to the District Attorney’s office.”
(DA records indicate that a Lebovits supporter named Zalmen Ashkenazi was paying for MT’s travel expenses to and from Israel, where he moved after accusing Kellner, and that MT’s father received payments from Ashkenazi.)
In addition to providing new details about MT’s highly suspicious withdrawal from the Lebovits case, these statements also show that Lebovits’ attorneys not only possessed what they alleged was evidence of Kellner’s extortion plot — including a secretly recorded tape of a conversation between Kellner and Lebovits’ son, Meyer — a year before Lebovits went to trial, but alerted Gregory and the judge to it at that time and received “a lengthy adjournment” to further investigate the matter. While the defense apparently considered bringing the Kellner allegations to law enforcement, according to Gregory, they ultimately declined to do so — a seemingly inexplicable decision, unless they believed the allegations would not hold up to scrutiny.
(This is the same material that was accepted as evidence against Kellner by the Rackets Division months after Lebovits was convicted.)
Finally, these statements also reveal that while Gregory believed Kellner’s son’s allegations against Lebovits, the office moved to dismiss his case in October 2010, six months before Kellner was arrested, “in an exercise of discretion” because of the allegations against Kellner. It is unclear whether Gregory herself dismissed the case, or even knew Kellner was under investigation. (An e-mail to a DA spokesman seeking clarification was not answered.) Kellner’s son’s case is now beyond the statute of limitations and can no longer be prosecuted.
These latest disclosures have drawn strong reactions from lawyers, including Gershman, the prosecutorial ethics expert.
“By going straight to Vecchione, the Lebovits lawyers did an end-run around the Lebovits prosecutors,” who, having interviewed MT for months, Gershman believes, were in the best position to vet his claims.
“This is a highly improper intervention of a bureau [Rackets] that has nothing to do with this case,” Gershman continued. “One bureau overriding another in this way reeks of misconduct. Why would they go to Vecchione and not the trial prosecutors [with the MT allegation]? It smacks of influence pedaling and using their prestige to undermine the system of justice.”
These revelations are also raising questions from Kellner’s attorneys. Despite receiving assurances from prosecutors in July that they had been given all of the exculpatory evidence related to MT’s withdrawal from the Lebovits prosecution, they continued to suspect material was being withheld from them.
In an e-mail last week, Kellner attorney Niall MacGiollabhui chastised the ADA now on the case, Monique Ferrell, for the Rackets’ failure to give him this information. He also excoriated the office for failing to interview MT alone after he withdrew from the Lebovits prosecution and to determine on whose behalf Mr. Lonuzzi was really acting.
“The scale and shamelessness … of the collusion by Rackets with a convicted pedophile is beyond shocking,” MacGiollabhui added. “It is a vile, disgusting abomination.”