By Andrew Keshner (NY Law Journal)
March 10, 2014
Brooklyn prosecutors have dropped a high-profile case against an ultra-Orthodox Jewish man who was charged with extortion and paying for false testimony against a cantor accused of sexual abuse.
Prosecutors sought and received dismissal of the indictment in Brooklyn Supreme Court on Friday, despite objections from the cantor's attorneys who said the turn of events was a rushed determination.
Newly-elected District Attorney Kenneth Thompson, who had slammed the case last year on the campaign trail, said his office concluded that witnesses lacked the credibility needed to push the three-year-old case forward.
"After a careful review of the evidence, we have concluded that the charges against Samuel Kellner must be dismissed," Thompson said in a statement. "We've reached this conclusion because we do not believe that we can prove these charges at trial."
But noting that Acting Brooklyn Supreme Court Justice Guy Mangano Jr. (See Profile) granted the motion without prejudice, the cantor's attorneys, who include Alan Dershowitz, said "the case is not over."
Friday's proceedings stem from the prosecution of cantor Baruch Lebovits, who was charged in 2010 with 10 counts of criminal sexual act in the third degree for allegedly engaging in "oral sexual conduct" with a 16-year-old male complainant between May 2004 and February 2005.
Kellner, who claimed Lebovits also molested his son, assisted in bringing forward the 16-year-old complainant. He said prosecutors, then led by District Attorney Charles Hynes, told him he needed to find other victims if he wanted to have his son's case prosecuted.
Lebovits was convicted on eight counts and sentenced to 10 2/3 to 32 years in prison, but the Appellate Division, Second Department, ordered a retrial, faulting the prosecution's late disclosure of detective notes. Lebovits is still awaiting retrial and maintains his innocence.
Defense lawyers for Lebovits told prosecutors that Kellner had resorted to bribing a witness and attempting to extort Lebovits' family. In 2011, Kellner was indicted on charges including conspiracy, perjury, criminal solicitation and attempted grand larceny.
The merits of the case came under sharp media scrutiny, and Thompson, when running for district attorney, called the case "botched."
After Thompson won the election, but while Hynes was still in office, prosecutors on the Kellner case had planned to drop it. They were taken off the case and reassigned because neither Hynes nor then-Rackets Division Chief Michael Vecchione authorized dismissal (NYLJ, Nov. 13, 2013).
Before Thompson formally took office, he requested "no procedural or substantive steps" be taken in the Lebovits case until he took office (NYLJ, Nov. 18, 2013).
Learning of the office's intentions to dismiss the Kellner case, one of Lebovits' attorneys, Nathan Dershowitz of Dershowitz, Eiger & Adelson, submitted a letter to the judge on Thursday, complaining that Kellner's representatives had met with Thompson.
"However, as counsel for the victim, we were denied that courtesy," the letter said, adding that Kellner "has bragged to a number of people that a deal to dismiss his case was made as part of Mr. Thompson's campaign."
The letter went on to say if the prosecution asked to dismiss the case, Lebovits would seek adjournment to file a motion for Thompson's recusal and the appointment of a special prosecutor.
On Friday, prior to proceedings, the prosecution, defense and Lebovits's attorney met in chambers with Mangano for about an hour.
In an interview, Alan Dershowitz said that while in chambers, he pressed for the judge to hold off on the motion for a few days while the Lebovits team translated a recording from Yiddish to English that the prosecution just recently turned over. Dershowitz said his understanding of the recording is that it exposes Kellner's alleged extortion.
But he said the judge opted to dismiss the case without prejudice.
Back in the courtroom, Assistant District Attorney Kevin O'Donnell said over the past few weeks, he had led a review of the case and determined one complaining witness gave "wildly inconsistent statements" while another also "was not a credible witness."
O'Donnell said suggestions of a "campaign deal" were "absolutely baseless" and any possible recusal motion was "an act of desperation." He also said Thompson did not meet with Kellner's representatives and that he "personally led the review."
Michael Dowd, who represented Kellner, said Lebovits "robbed years of his [client's] life and his reputation," adding that Kellner bore the "burden of being seen as not following the code" of resolving abuse claims in the orthodox community.
During a raucous scene in the court hallway involving lawyers for both Kellner and Lebovits, attorney Michael G. Dowd said, "We're glad justice finally got done for Samuel Kellner."
But Dershowitz, often contending with or trying to speak over Kellner supporters, said that Kellner "should not be celebrating."
One of Kellner's attorneys, Niall Mac Giollabhuí of the Law Office of Michael G. Dowd, said the dismissal was done in the interest of justice, even if not explicitly stated by Mangano. Such dismissals, he said, were, by law, without prejudice.
Dershowitz said the dismissal was not done in the interest of justice and said Mangano "told us he would not say that categorically."
Dershowitz said he planned to have the tape-which he called a "smoking gun"-distributed to the media because the "public has a right to judge" Thompson's actions.
With the translated tape, Dershowitz said his client could either go back to the district attorney's office to seek a re-opening of the case, build public support for a new case or attempt to have a special prosecutor appointed.
Dowd said that he had not heard the recording but was confident it would not show any criminality on his client's part. "I'm not holding my breath waiting," he said.
Attorneys for both sides later said they interpreted the proceedings as a victory, underscoring the dismissal was done without prejudice.
Mac Giollabhuí, said in an interview that Kellner and his lawyers are asking the district attorney's office to launch an internal investigation as to why the office initiated the case in the first place.
Lebovits is also represented by Arthur Aidala of Aidala & Bertuna in Brooklyn.