Judge Dismisses Charges against Whistle-blower in Sexual Abuse Case

By Sharon Otterman
New York Times
March 7, 2014

http://www.nytimes.com/2014/03/08/nyregion/prosecutors-expected-to-dismiss-charges-against-whistle-blower-in-sex-abuse-case.html?hpw&rref=nyregion&_r=1

Samuel Kellner, right, embracing Assemblyman Dov Hikind on Friday. Brooklyn prosecutors said they had no “credible case” against Mr. Kellner.

In a case that riveted the ultra-Orthodox Jewish community in Brooklyn, a judge on Friday dismissed all charges against Samuel Kellner, a whistle-blower who had been charged with trying to extort money from the family of an accused molester and bribing a grand jury witness to testify falsely.

The dismissal came at the request of prosecutors, who told Justice Guy J. Mangano in State Supreme Court in Brooklyn that the case against Mr. Kellner had fallen apart. The two key witnesses against him “lack credibility to such a degree that their testimony cannot be trusted,” an assistant district attorney, Kevin O’Donnell, told the court, adding, “The people do not have a credible case.”

Accompanied by his wife and four of his five sons, Mr. Kellner rushed out of the courtroom a free man, expressing relief as well as anger. For three years, he had insisted the charges were fictional, invented by supporters of Baruch Lebovits, a prominent Hasidic cantor who was convicted of sexually abusing a child in 2010.

“It has been proven now that no matter how much power or how much money you have, justice is going to prevail,” Mr. Kellner said. “A molester does not belong on the streets no matter how much power or money he has.”

But there was still a cloud of uncertainty over Mr. Kellner’s freedom. Two lawyers for Mr. Lebovits, Arthur L. Aidala and Alan M. Dershowitz, the prominent lawyer and author, conferred with prosecutors and the judge for about an hour before the case’s dismissal. Mr. Dershowitz later told reporters that he believed an audiotape turned over by the district attorney on Thursday contained evidence against Mr. Kellner that would cause his case to be reopened. “This case is not over,” Mr. Dershowitz said, prompting a shouting match with Kellner supporters.

In 2008, Mr. Kellner’s 16-year-old son told him that Mr. Lebovits had molested him in a car, according to Mr. Kellner. He went to prosecutors but was told that a trial was unlikely because of the nature of the touching and the age of his son. So he began working with a sex crimes detective to find other victims who had been more seriously violated.

The effort was successful: A young man testified that Mr. Lebovits had serially molested him, and Mr. Lebovits was sentenced to 10 to 32 years in prison, a landmark prosecution of an Orthodox Jewish sexual abuser in a community in which many such allegations are never brought to law enforcement.

A year later, Mr. Kellner was arrested based on evidence collected by supporters of Mr. Lebovits. He was indicted on a charge of paying $10,000 to a young man to falsely tell a grand jury that he had been abused by Mr. Lebovits. Mr. Kellner was also charged with attempting to extort $400,000 from Mr. Lebovits’s family, by telling them he could convince the witnesses not to testify. He faced possible prison time.

The case against Mr. Kellner was announced by Michael F. Vecchione, who then led the Brooklyn district attorney’s rackets bureau. The indictment also threatened to undermine the conviction that had been won against Mr. Lebovits by sex crimes prosecutors.

Indeed, Mr. Lebovits was released from prison one day after Mr. Kellner’s indictment. In 2012, Mr. Lebovits’s lawyers got his conviction overturned on appeal, based on the fact that a detective’s notes had not been promptly turned over to defense lawyers preparing for trial. Prosecutors have vowed to retry him.

The evidence against Mr. Kellner was questionable from the start, particularly an ambiguous audiotape provided by the Lebovits family that purportedly captured Mr. Kellner’s extorting money from Meyer Lebovits, the cantor’s son. “It does not prove an extortion plot,” Mr. O’Donnell said in court on Friday.

Last summer, another key piece of evidence against Mr. Kellner fell away. Prosecutors learned that the young man who said Mr. Kellner had paid him to lie had been getting financial assistance from Mr. Lebovits’s supporters.

The young man, who was not the person Mr. Lebovits had been convicted of molesting, also changed his story. He now said that Mr. Kellner had merely promised to pay him, and told prosecutors that he might actually have been abused by Mr. Lebovits. In court, Mr. O’Donnell called the young man’s statements “wildly inconsistent.”

The case riveted the ultra-Orthodox community in Brooklyn, and divided prosecutors within the district attorney’s office. Shortly after Charles J. Hynes was voted out as district attorney in November, two of his prosecutors called Mr. Kellner’s lawyers to tell them that they lacked evidence to proceed. They were demoted.

Mr. Vecchione continued to support the case until his retirement in December, as did Mr. Hynes. Kenneth P. Thompson, the new district attorney, called the Kellner prosecution “botched” during his campaign.

While he was gratified about the dismissal, a lawyer for Mr. Kellner, Niall MacGiollabhui, said the deeper question was why a troubled case had been allowed to go on for so long, and called for an investigation.

“We are grateful that he has been vindicated but what really matters is what happens next,” he said.