Kellner Seeking Probe Of Witness Intimidation

The Jewish Week
March 5, 2014

http://www.thejewishweek.com/news/new-york/kellner-seeking-probe-witness-intimidation

As his drawn-out case appears to be nearing a close, he wants more than dismissal of charges against him.

While it would seem a good bet that Sam Kellner’s dizzying, three-year legal odyssey may finally come to an end this week with a dismissal of his criminal case, the chasidic abuse whistleblower is not holding his breath. It’s easy to understand why. The way things have been going, there probably isn’t a bookie in Vegas who would take any action on that wager.

“The former trial prosecutors twice wanted to dismiss my case and were overruled. And now we have a new [Brooklyn] district attorney in office [Kenneth Thompson], and he is taking almost six weeks to review it. And so I am still an indicted person. How do you like it?” Kellner, 52, asks matter of factly, before tallying up how many judges, prosecutors and district attorneys have presided over his case — four, five and two respectively, with a new judge expected this week. (At a hearing scheduled for Friday, prosecutors are expected to let the judge know whether they are moving to dismiss the case or will take it to trial.)

“I must be a very dangerous guy,” he adds, his sense of the absurd fully intact.

Dangerous, indeed. In 2011, a year after helping the district attorney convict a serial chasidic child molester named Baruch Lebovits, whose alleged victims include Kellner’s own son, 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 he could persuade the witnesses against him to drop their charges.

The state’s convoluted case against Kellner, originally brought by then District Attorney Charles Hynes, 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 — admitting, 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 the trial prosecutors to make their first recommendation that the case be dismissed.

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 who was 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 among longtime incumbent Hynes and two challengers, 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).

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.

This could have been almost the end of the story for Kellner, who is clear 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 what was “only” 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 an religious court system, as well as its members’ spoken language and style of communication — to have Kellner arrested.

And 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 his prosecution may, finally, soon come to an end, it is hard for Kellner to feel any great sense of relief, let alone vindication. He has already lost so much that cannot be returned to him, and also whatever faith he had in the criminal justice system. (Amid his own ordeal, his son’s case against Lebovits was unaccountably dropped). If that faith is to be restored, he believes that the new district attorney, Kenneth 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.

Others agree.

“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.”

According to Bennett Gershman, a leading prosecutorial ethics expert and Pace University law professor, “Mr. Thompson’s first priority should be to review the many tainted convictions obtained by Hynes’ office, especially wrongful convictions where an arguably innocent defendant is still incarcerated. [One such case, that of David Ranta, who was wrongly accused of murdering an Orthodox man in 1990, has been overturned.]

“However, even though he may soon be vindicated, Kellner’s case stands out dramatically as one of the most egregious instances of prosecutorial abuse by Hynes’ office. ... Indeed, 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.”

Kellner himself is confident that “if, in the end, they will investigate what happened here 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.”