New Evidence Hurts DA’s Case

New evidence has emerged that could deal a serious blow to Brooklyn District Attorney Charles Hynes’ case against Sam Kellner, a chasidic Borough Park resident who was charged with extortion and perjury after he helped to convict a fellow chasid, Baruch Lebovits, on sex abuse charges.

The evidence, obtained by The Jewish Week, is an audiotape on which a young man makes statements that undermine his previous claims that Kellner paid him to fabricate allegations of sex abuse. The young man also makes statements indicating that powerful members of his own community pressured him to accuse Kellner of perjury.

“This tape should make clear what should be clear to any reasonable person — that Sam Kellner is not guilty of these charges,” Kellner’s attorney, Michael Dowd, told The Jewish Week.

Kellner, whose ordeal was the subject of a Jewish Week story in January, played an indirect but key role in the 2010 sex abuse conviction of Lebovits, a cantor and prominent member of the Munkacs chasidic community.

After learning in 2008 that his son had been inappropriately touched by Lebovits, Kellner obtained rabbinic permission to report the incident to the police. When a detective told him that his son’s case was a misdemeanor and thus unlikely to be prosecuted unless additional victims came forward, Kellner obtained the names of two men — “Yoel” and “Zev” (not their real names) —who had previously disclosed their abuse at the hands of Lebovits to the Vaad HaTznius, or modesty committee. (The Vaad is an unofficial community watchdog group that deals with abuse allegations and alleged molesters, typically without involving law enforcement.)

After meeting each of these men, Kellner secured rabbinic permission for both to make police reports. Along with Kellner’s son, both also testified before grand juries, resulting in indictments against Lebovits.

While Yoel, the young man on the newly uncovered audio tape, ultimately backed out of testifying against Lebovits at trial, Zev went forward, and in March of 2010, Lebovits was convicted and sentenced to 10 to 32 years in jail. (The verdict was overturned on a technicality and a new trial ordered; that trial has yet to occur).

Then, in a stunning turn of events, a year after Lebovits’ conviction, Kellner was arrested. He was charged with trying to extort money from Lebovits’ son Meyer prior to Lebovits’ trial, in exchange for persuading the witnesses against Lebovits to drop their charges. Kellner was also charged with perjury for paying Yoel to falsely testify before a grand jury that Lebovits had molested him. At the time, Lebovits’ lawyers expressed confidence to reporters that Kellner’s alleged acts would fatally undermine the integrity of their client’s conviction.

Kellner’s case, which is set to go to trial on July 8, is being handled by the Rackets Bureau, headed by Senior Assistant District Attorney Michael Vecchione.

In its January story, The Jewish Week challenged the validity of the charges against Kellner on a number of grounds, including the timing, sources and quality of the DA’s evidence — all of which, experts were quoted as saying, should have raised serious red flags in the Rackets Bureau.

The new audiotape, made by an acquaintance of Yoel after Kellner’s arrest, not only further supports Kellner’s claims of innocence, but raises additional questions about the DA’s handling of the allegations against him. The acquaintance, who requested anonymity for fear of retribution, had been told repeatedly by Yoel about his abuse at the hands of Lebovits, and made the tape after trying unsuccessfully to alert the DA that Yoel was falsely accusing Kellner.

“I called the DA’s office — I didn’t give my name but said I had information that Kellner was innocent of these charges,” the friend told The Jewish Week.

“I was transferred from one place to another, and finally I got someone who told me, ‘We’re not interested. We are the prosecution; we are prosecuting Kellner. Go talk to his lawyer.”

Asked about this person’s account, a spokesman for the district attorney told The Jewish Week, “We know nothing about this.”

Yoel’s acquaintance turned over the recording to Rabbi Chaim Flohr and his beit din, the same religious court that had given Kellner permission to report his son’s abuse to the police. The tape was then shared with The Jewish Week.

During the conversation, which is in Yiddish and was translated by a native Yiddish speaker for the paper, Yoel makes statements that indicate he first disclosed his abuse by Lebovits to people within his community around the time he was 16 or 17 — several years before he ever met Kellner. This is consistent with information obtained by The Jewish Week that Yoel first sought help around this same time from Rabbi Shraga Hager, also known as the Kosover Rebbe, for depression related to his abuse by Lebovits. (Rabbi Hager is the rabbi who ultimately gave Yoel permission to make a police report about Lebovits several years later). It also comports with an account by the Vaad that Yoel first approached them around this same time with these allegations, and even e-mailed them a photo of Lebovits to positively identify him as his abuser. These statements seem to undermine Yoel’s claims that Kellner paid him to lie about being abused by Lebovits.

At another point on the tape, Yoel says that a powerful community activist named Zalmen Ashkenazi “got him out” of testifying against Lebovits. He also states that Ashkenazi hired an attorney for him and “made him” go against Kellner. (Zalmen’s brother, Berel, was a character witness for Lebovits at trial, where it emerged that Berel was also an alleged child molester). Yoel’s story comports with DA records that note that when Yoel made allegations against Kellner, he did so in the presence of an attorney. At another point on the tape, Yoel says that if Zalmen ever “turns on him,” he would accuse Zalmen of molesting him.

The Jewish Week tried, unsuccessfully, to reach Zalmen Ashkenazi several times by phone and was unable to independently confirm Yoel’s claims.

The Jewish Week contacted Yoel, but he declined to comment.

According to defense attorney and former prosecutor Mark Bederow, the tape is likely to hurt the prosecution’s case against Kellner.

“If it is true that the witness testified emphatically under oath that he was not abused by Lebovits, and then told an acquaintance that he was in fact molested by Lebovits, and also was recorded admitting that he disclosed such abuse years before, then the witness has severely damaged his own credibility,” he said.

“Even worse,” Bederow continued, “not only has the witness harmed the prosecution, he may have exposed himself to perjury charges. If the recording and other statements that he has made contradict his sworn testimony as alleged, it is hard to fathom how the prosecution could possibly call him as a witness. If they do call him as a witness under these circumstances, by testifying, the witness likely will incriminate himself.”

Dowd, Kellner’s attorney, is not in possession of the tape, but is familiar with its contents and has alerted prosecutors to its existence. He and his associate, Niall MacGiollabhui, are concerned, however, about turning it over to prosecutors out of concern that they will not be able to protect the identity of the person who recorded it, possibly exposing the individual to intimidation and threats.

“The person who made the tape did so in good faith, to help prevent an injustice,” MacGiollabhui told The Jewish Week. “Prosecutors want to meet with this individual and hear the tape. However, this individual is concerned about what might happen as a result. Unfortunately, this concern is not unfounded. After all, Sam Kellner cooperated with the Brooklyn District Attorney to expose the truth about child abuse within his community. And look what happened to him.”

That said, both Dowd and MacGiollabhui believe that it should have been obvious to prosecutors in the Rackets Bureau, given information in the office’s possession, that Yoel could have been pressured to make false allegations against Kellner.

“What troubles me the most,” Dowd said, “is that Sam Kellner could have been spared the agony of this indictment, as this information was available from inside the DA’s office for a long time.”

For one, an experienced sex crimes detective, Steve Litwin, and the district attorney’s own sex crimes prosecutors had found Yoel to be a credible witness against Lebovits. Further, a close friend of Yoel’s gave a statement, obtained by The Jewish Week, to a DA investigator indicating that Lebovits’ eldest daughter had intimidated Yoel into backing out of the Lebovits prosecution by threatening to have him arrested for molesting boys.

Rackets Bureau prosecutors are also in possession of a videotape on which Zev claims that Yoel was “terrorized” by members of the Lebovits family after he decided to press charges against Lebovits. And then there are notes, written by Litwin, detailing attempts by Berel Ashkenazi and another man to persuade Zev to drop his charges in exchange for money. Sex crimes prosecutors also have a psak, or rabbinical ruling, made at the behest of Berel Ashkenazi and signed by a rabbi, prohibiting Zev from adjudicating his case against Lebovits in secular court. (This document was used to impeach Berel’s credibility as a witness for Lebovits at trial, but was not used by the DA’s office to charge Berel with witness tampering).

All of this, says Dowd, should certainly have raised serious questions about whether these same people who tried (and in Yoel’s case, succeeded) to intimidate both Yoel and Zev into withdrawing their charges against Lebovits may have manipulated Yoel into making false allegations against Kellner to help Lebovits’ cause after he was convicted.

That prosecutors have not acted on this evidence of witness tampering in the Lebovits case has soured many victims’ advocates on cooperating with the DA. Hynes’ public statements about having no tolerance for those who would intimidate witnesses to the contrary, these advocates believe that while the he may be willing to prosecute individual molesters, Hynes has no stomach for cracking down on powerful members of the religious community who intimidate victims.

In the Lebovits and Kellner cases they see a disturbing irony wherein the DA appears to have shielded from prosecution those who intimidated victims while pursuing questionable charges against one of the few people who has cooperated with his office in bringing molesters to justice: Sam Kellner.

“As an advocate for justice, the DA’s [conduct in this case] is extremely disconcerting to me,” sex abuse survivor, advocate and writer Chaim Levin told The Jewish Week.

Recalling a recent meeting he had with sex crimes prosecutors who were hoping he might help them find additional Lebovits victims, Levin recounted that “I did my best to make sure they understood why, aside from the existing pressures religious communities [place] on victims [not] to come forward, the DA’s behavior in charging Sam Kellner as Lebovits roamed free because of [their mistake], is another really good reason for victims not to want to come forward.

“The fact that the DA’s office is telling people like me to bring them more victims, and yet Sam Kellner did just that and he’s now facing 21 years in jail because of forces more powerful than him,” Levin said, “is just another reason not to want to trust the DA’s office.”

editor@jewishweek.org