By Hella Winston (The Jewish Week)
March 12, 2014
‘At the lowest point in my life, the justice system reached over [and did the right thing’,” chasidic abuse whistleblower Sam Kellner told The Jewish Week last Friday morning after his three-year-long and dizzyingly complex case was thrown out.
But before the justice system “did the right thing” for Kellner, it threw one more seemingly bizarre curve his way, as befitting a case that took many such twists and turns.
Before the dismissal of all extortion and perjury charges against Kellner, a lawyer for Baruch Lebovits — the well-connected cantor Kellner helped convict of sexually abusing minors — asked the judge to hold off on dismissing the case. In what legal observers characterized as a highly irregular move, the judge held an hour-long conference in chambers with Lebovits’ attorneys (Nathan Dershowitz and his brother Alan and their co-counsel, Arthur Aidala), Kellner’s lawyers and the prosecutors seeking the dismissal of his case.
Nathan Dershowitz wanted time so that the Lebovits defense team could file a motion seeking to recuse the Brooklyn District Attorney, Kenneth Thompson, from the case and have a special prosecutor appointed. In a letter to Judge Guy J. Mangano, Dershowitz implied that the dismissal was the product of a political deal, erroneously claiming that Kellner’s representatives had met with Thompson, a “courtesy” they say they were denied. (Assistant District Attorney Kevin O’Donnell stated in court that no such meeting had ever taken place and noted that, during his review of the Kellner case, he had met with Lebovits’ counsel.)
The judge declined to grant Lebovits’ lawyers’ request and dismissed the case. In an interview with The Jewish Week, Nathan Dershowitz said they still may seek the appointment of a special prosecutor, a request experts believe will not be granted.
In dismissing the case, O’Donnell said in court Friday that his review of the facts found that the two main witnesses against Kellner “lack credibility to such a degree that their testimony cannot be trusted.”
As for Kellner, who throughout his long legal ordeal said he was fighting for justice for his son, who was allegedly abused by Lebovits, “I just want to say that everything that I did was according to halacha [Jewish law] and rabbinically OK,” he told The Jewish Week. “And what I learned is that following the rules will get you out of trouble, not into trouble.”
That lesson came at a price.
The saga of Kellner’s case, and all that preceded his arrest, encompasses both a narrative of positive change within the chasidic community and a cautionary tale.
Unlike so many chasidic parents who discover their children have been sexually abused but remain too fearful to act, Kellner wasted no time in seeking protection and redress for his son. And he did so according to the rules of his community by first consulting with rabbis. When they deemed the situation beyond their ability to address, he received a rare dispensation to go to the police.
But in 2011, a year after helping then-District Attorney Charles Hynes convict Lebovits, Kellner found himself under arrest. He was charged with having several years earlier paid one young man to falsely testify in a grand jury that he was abused by Lebovits, and with sending emissaries to attempt to extort the Lebovits family for hundreds of thousands of dollars in exchange for a promise that he could persuade the witnesses against him to drop their charges.
The state’s convoluted case against Kellner was shaky from the start; it was based solely on “evidence” brought directly to the DA’s Rackets Division by members of the well-connected Lebovits family, their supporters and paid agents, all seemingly in the service of getting Lebovits’ conviction overturned.
The case took a blow last summer, when the man who accused Kellner of paying him to fabricate his charges contradicted his initial story in interviews with prosecutors; he admitted, among other things, that Lebovits “could have molested” him and that he never received money from Kellner. The flip-flop destroyed his credibility and led prosecutors to make their first recommendation to dismiss.
Kellner’s prosecutors could have been spared this embarrassment had they consulted with their colleagues in the Sex Crimes Unit before seeking his indictment. Those prosecutors had strong evidence to suggest this young man was most probably a genuine Lebovits victim intimidated out of testifying against him at trial, and later manipulated into accusing Kellner; for reasons that remain mysterious, they failed to do so.
But by the time this witness imploded, Kellner’s case had become tangled up in a hotly contested DA’s race between longtime incumbent Hynes, Abe George and Thompson, and its adjudication took a back seat to politics. And so his prosecution continued, surviving a second attempt at dismissal after Hynes lost the election to Thompson; at that time, Hynes’ controversial deputy, Michael Vecchione, himself awash in misconduct allegations, demoted the trial prosecutors rather than accept their recommendation that the case be dropped. (It is worth noting that Lebovits’ trial attorney, Arthur Aidala, has close ties to both Vecchione and Hynes.
Kellner maintains that he had no desire to see Lebovits go to jail, and that a guilty plea with probation and mandatory sex offender registration would have provided acceptable justice for his son. But he came up against a DA’s office unwilling to prosecute a misdemeanor by someone with a clean record. (While Lebovits had a decades-long reputation for molesting children in his community, nobody had ever reported him to the police).
This was a determination many anti-abuse advocates and observers believe would not have been reached had the alleged offender not been a well-connected member of a community whose leaders consistently delivered a large voting bloc to Hynes. And it led a detective to set Kellner on a path to seek out additional victims so the police could build a case. But that unwittingly made him vulnerable to extortion allegations by the Lebovits family, who were able to exploit their lawyers’ cozy relationships with Hynes’ top brass, as well as the trial prosecutors’ ignorance about their community — including its social and power structure, Jewish legal underpinnings and religious court system, as well as its members’ spoken language and style of communication — to have Kellner arrested.
Kellner’s story would also have turned out differently had he not become the target of a relentless campaign of harassment and threats by powerful supporters of Lebovits. The long ordeal left him without a shul to pray in and his sons expelled from yeshiva — a pariah state he shares with the few chasidic victims who have dared to come forward and report abuse. Here again, he was failed both by communal leaders and the district attorney, neither of whom was apparently willing to take meaningful action in their respective realms to put a halt to what seemed to be clear cases of witness tampering and attempted obstruction of justice (directed not only at him, but the other witnesses he helped bring forward).
All of which forced Kellner to maneuver and bluff his way through all manner of attempts by hotheaded activists and rabbis to force him to drop his criminal charges and adjudicate his case for damages in religious court.
So, even though the charges against him have been dismissed, it is hard for Kellner to feel any great sense of relief, let alone vindication or justice. (Amid his own ordeal, his son’s case against Lebovits was unaccountably dropped). If that is to change, he believes that Thompson needs to undertake a full investigation into how he came to be indicted in the first place and why the documented intimidation of, and tampering with, the Lebovits complainants was allowed to go unaddressed by his predecessor.
“The public is owed a report on witness tampering and corruption of justice,” says the blogger and anti-sex abuse activist known as Yerachmiel Lopin, who has blogged about the Lebovits and Kellner cases, among many others, at frumfollies.wordpress.com.
“Anything less will dash the hopes of anti-abuse advocates, victims wary of testifying and the larger ultra-Orthodox community.”
Thompson’s press office declined to comment for this article.
According to Bennett Gershman, a leading prosecutorial ethics expert and Pace University law professor, “The criminal charges against Kellner bear all the hallmarks of a demagogic prosecution brought not to serve legitimate law enforcement reasons, but in bad faith for illegitimate reasons.”
Indeed, Kellner’s attorneys see the Lebovits defense team’s 11th-hour attempt to forestall the dismissal of the Kellner case — a move ADA O’Donnell called “an act of desperation” — as merely an extension of their efforts to influence the justice system on behalf of their client that led to Kellner’s arrest.
“The case was dismissed in the interests of justice because it was a product of what the prosecutor told the judge in chambers was fabricated grand jury testimony from Meyer Lebovits [Baruch’s son], on the one hand, and intimidation of and tampering with a victim of Baruch Lebovits, by his associates, on the other,” one of Kellner’s lawyers, Niall MacGiollabhui, told The Jewish Week.
“The hubris of these criminals in portraying themselves as victims and calling for a special prosecutor is simply comical,” he continued. “The only real question is when they will be made to face the consequences of their wholesale corruption of the criminal justice system.”
Gershman, the ethics expert, seems to agree.
“I don’t believe Dershowitz has standing to seek a special prosecutor,” Gershman said. “There is absolutely no chance, in my opinion, that a special prosecutor will be appointed, or should be appointed. DA Thompson conducted a careful review of the evidence in the Kellner case before he made his decision to dismiss it.”
Kellner himself is confident that “if, in the end, they will investigate what happened [in his case] and go after the intimidators, it would mean that all of this tampering and intimidation would end, that these people no longer run the streets. And that is probably worth the whole pain and suffering of my indictment because I don’t see any other way we could have accomplished this.”
But, Kellner continues, if Thompson does nothing, “Where is the government that is supposed to protect me? It would be very hard to justify that another father should go to the secular court, even with a [dispensation] from the rabbis. It will mean these people have won and it’s over,” he declares.
“And all of this pain and suffering from the last six years has been for no cause. I can’t imagine how I will overcome it.”