by Hella Winston and Larry Cohler-Esses (The Jewish Week)
April 16, 2008
In a surprise move, Rabbi Yehuda Kolko, the Brooklyn yeshiva teacher charged with having sexually molested his students, pleaded guilty Monday to two lesser counts of child endangerment and was sentenced to three years' probation.
Under the plea agreement, Rabbi Kolko, 62, made no admission of sexual wrongdoing. He will not have to register as a sex offender, and pleaded guilty only to a misdemeanor - not a felony.
Before the plea bargain, Rabbi Kolko, of Yeshiva Torah Temimah in Flatbush, had been facing felony charges of touching two first-graders in their sexual areas and forcing an adult former student to touch him during a visit to the school. Five former students have also filed suit against the prominent yeshiva, alleging school administrators knew about Rabbi Kolko's molestation of students over many years but sought to conceal it and intimidate students who spoke out.
Brooklyn District Attorney Charles Hynes would give no public explanation of why he suddenly dropped the high-profile molestation case. But its collapse resurrected questions in some quarters about Hynes' competence or his political will in pursuing allegations of wrongdoing involving prominent institutions and individuals in Brooklyn's politically powerful Orthodox community.
Those questions were underscored by contradictions between the alleged victims' account of how Hynes' office secured their agreement to the plea deal and the account offered by the government.
A law enforcement source told The Jewish Week that parents of the two child witnesses had reveresed their decision to allow the children to testify that Rabbi Kolko had molested them.
The source said this fatally weakened the prosecution's case in the wake of the discovery that the alleged adult victim had made false claims in an unrelated matter.
But the alleged victims offered starkly different accounts.
"My son was ready to go to trial, and we feel he would have done an excellent job," the father of one of the children said. "The damage, pain and emotional stress Joel Kolko caused my family, and especially my son - we will never forgive him for this. ... We are sorry to hear [the molestation] charges against him will not proceed."
The father, whose child is now 10, said that it was Hynes' prosecutors who pressed him - not the other way around - to keep his son from testifying. The father said he eventually agreed when the prosecutors told him they could better pursue not just Rabbi Kolko but school administrators and the school itself via an alternative route.
"I know all the hotshots at the DA," the father said. "They actually want to get him on something more serious."
He declined to say what they told him this was. But a source close to the families of both alleged child victims who has been intimately involved in the case said the prosecutors spoke to the father about going after Rabbi Kolko and Rabbi Lipa Margulies, the yeshiva's founder and administrator, on tax fraud charges, based on recently obtained school financial records that were reported by The Jewish Week. That would preempt any need for testimony from his son.
But, according to the source, the same prosecutors offered a very different rationale when they approached the family of the second child and convinced the parents they need not put their son forward.
"The DA told them that they think it's best to do a plea deal because the other child was too young and his family was not allowing him to testify," the source said. "This family was also ready and willing to put their child on the stand to testify and face Kolko. In fact, they believed, while difficult for their son to endure, it would be cathartic and benefit him."
The family declined to speak with a reporter. But the source, who has been with the family through the entire legal process, said they had asked him to speak for them. He spoke on condition of anonymity, citing fear that the children, wo have not been publicly named, could be identified through him.
"This child's parents were from day one ready to have their son testify if it was necessary," he stated. "And they were ready to go to trial. They had come to terms with the reality that their son was going to testify on the stand."
Both children, in fact, remain as plaintiffs in the civil suit against Yeshiva Torah Temimah, and are expected to be witnesses in that case, according to Michael Dowd, a plaintiffs' attorney in that case.
Dowd said the plea deal would not harm his prospects for success in the civil suit since the guilty plea would allow him to press Rabbi Kolko on the stand for specifics on what acts he committed that had endangered children.
Meanwhile, Rabbi Kolko's alleged adult victim told The Jewish Week that prosecutors informed him two months ago they had no intention of putting the children on the stand in their criminal case.
"They said they will not put kids on the stand," he related. "They said the reason why you are so important is because you are an adult, and you can explain yourself, and therefore you are extremely important; that the kids are not going to go on the stand because they can't explain themselves."
He said the prosecutors' remarks came during a discussion in which they told him that a false affidavit he had submitted to government authority in 2000 - in which he had denied knowledge of wrongdoing by a friend - now made it too risky to put him on the stand.
"They told me at the end, we're unsure what we're going to do at this point," Rabbi Kolko's alleged adult victim said. He said he heard nothing further until an article appeared in The New York Daily News Monday reporting on the plea deal.
Told that the father of one child had told The Jewish Week he wanted his son to testify, the law enforcement official who said the children's families had changed their minds replied,
"Oh, really? I know one of them didn't want their kid to testify. I thought it was both."
The law enforcement source explained later that the real problem was that "there was a kid who didn't want to testify at all, and there was a kid whose parents wanted him to testify only by closed-circuit TV."
"If you have a victim who won't testify, that's going to be a real hard case to try," he said. "And the idea that this one victim would only testify if they get a closed-circuit TV - judges rarely approve those kinds of things. So, it didn't seem like the safest bet."
But the father of the alleged child victim said, "We already had the closed-circuit TV set up. ... It had been approved [by the court].
"It's crap," he said of the law enforcement official's account.
Jeffrey Schwartz, Rabbi Kolko's attorney, said he and his client were satisfied with the case's outcome.
"Endangering the welfare of a child could mean anything," he said. "It could mean that [Rabbi Kolko] took the kids to a park and didn't watch them on the sliding post. It's not a sex offense. He doesn't have to register as a sex offender. There's nothing else attached to it except the three years of probation. There are no conditions. He just has to lead a law-abiding life and stay out of trouble."
But for some, the collapse of the molestation charges recalled earlier cases involving high-profile figures in Brooklyn's Orthodox community that Hynes was accused of failing to pursue with vigor.
Rabbi Avrohom Mondrowitz was indicted in 1984 on four counts of sodomy and eight counts of sexual abuse in the first degree after years as a school counselor in the Brooklyn
Orthodox community. When he fled to Israel, Hynes' predecessor, Elizabeth Holtzman, pushed for his extradition. But Hynes dropped the effort when he was elected, in 1989. He said Israel's extradition treaty with the United States made the effort futile - a position the U.S. Embassy in Tel Aviv explicitly rejected.
Hynes renewed the effort in 2006 under prodding from new individuals who, after attention from several media outlets about the Rabbi Kolko case, came forward alleging Rabbi Mondrowitz had molested them as students, too. Hynes' renewal of the extradition request, combined with the efforts of advocates and media pressure in Israel led to Rabbi Mondrowitz's arrest there last year. A court has ruled him extraditable. But he awaits a final appeal on this ruling that is to take place May 29.
In an indication of the kind of resistance such efforts by Hynes face in parts of Brooklyn's highly organized ultra-traditionalist Orthodox neighborhoods, Rabbi Herbert Bomzer, president of the Rabbinical Board of Flatbush, told the Jewish weekly The Forward flatly: "If he [Rabbi Mondrowitz] has managed to get to Israel and is protected by the law there - then leave it alone."
The case of Shai Fhima, a 13-year-old Jewish boy whose non-Orthodox parents said he was kidnapped by an ultra-traditional Orthodox rabbi giving him bar mitzvah lessons, also brought scrutiny to Hynes as it dragged on through the 1990s. The parents accused Hynes of failing to press the case vigorously because he did not want to alienate Orthodox leaders. A judge ultimately rejected the plea agreement Hynes reached with the rabbi that would have imposed only probation and community service.
In another case, police in 1993 reported that Augustine Hazim, a Puerto Rican man, was beaten in Borough Park by a group of Orthodox Jews after his motorcycle came close to striking a child. It took seven months for the District Attorney's office to conduct a lineup, according to police officials and Hazim's lawyer, The New York Times reported. The district attorney's office told Hazim that a witness had developed a "memory lapse" and only one man was ever arrested.
Michael Lesher, an attorney and community advocate specializing in child sexual abuse cases, said he could cite at least two other cases "off the top of my head" in which Hynes failed to diligently pursue child sexual abuse cases in the Orthodox community.
"I say it reluctantly that there has been a pattern of inaction by Charles Hynes' office in cases of this kind," said Lesher. "That's a statement I make based upon hard evidence in specific cases. ... I must at this point consider it to be a politically motivated pattern."
Hynes' office did not respond to two detailed messages seeking reaction to this critique.
Marci Hamilton, a professor of constitutional law at Yeshiva University's Cardozo School of Law and author of the forthcoming book, "Justice Denied: What America Must Do to Protect Its Children," termed the outcome of the Kolko case "the worst of all possible worlds."
"It's such a joke," she said. "It's really a travesty of justice the way it's been handled."
"The sad part," said Hamilton, "is that . . . more children are going to be endangered. They really have not solved any of the public's legal problems with this person, and the tragedy is that you end up with communities not vigorously going after the clergy in their own communities. Then it's their communities that suffer, [and] the children who are most likely to be at risk in the future are the children within the same community.
"That's a tragedy that has repeated itself in one religious organization after another," she said.
Hella Winston teaches sociology at Queens College. Larry Cohler-Esses is editor at large.