By Chaim Levin (Huffington Post)
January 23, 2013
At a press conference yesterday, Brooklyn District Attorney Charles Hynes spoke about the victory in the case of Nechemya Weberman, the unlicensed counselor who had just been convicted on 59 counts of sexual assault and was sentenced yesterday to 103 years in prison. Indeed, his conviction was a great victory for the Brooklyn D.A., as well as for victims from ultra-Orthodox communities. As was the case with Weberman's victim, survivors are often shunned, intimidated, pressured and bribed from coming forward. A survivor myself, I felt great relief when, just after hours of deliberation, the jury came back with 59 guilty verdicts. This conviction sends a very strong message to those who commit, as well as cover up such heinous crimes: Justice will be served.
Another matter, however, compelled me to attend. Recently, the Jewish Week published an article suggesting serious misconduct by the Brooklyn D.A. in handling another child sex abuse case. Rabbi Baruch Lebovits had been convicted on multiple counts of sexual assault, but the verdict was overturned due to a technicality. The Jewish Week's article highlighted disturbing consequences facing victims and advocates today.
The father of one of Lebovits' alleged victims, Sam Kellner, fought hard for justice for his son despite backlash from the community. He now faces 21 years in prison for allegedly extorting the Lebovits family and conspiracy, as well as paying a witness to testify falsely against Lebovits. However, there is good reason to believe that Kellner has been set up because he refused to back down despite immense amount of pressure from the Satmar community and members of Lebovits' wealthy and influential family.
Kellner claims he had been pressured by members of the community, ordered not to pursue charges by a beit din (religious court) and was even offered money to drop the case -- all of which he refused to do. When Kellner was arrested, he was shocked by the indictment: "All these people offering payoffs, and I'm telling this all along to Detective Litwin, and now I'm the extortionist?"
The charge was brought by Lebovits' son, Meyer, a wealthy businessman and alleged child molester. The father of one of Meyer's alleged victims was sentenced for extortion of Meyer in 2010 and has been identified as a co-conspirator before the Grand Jury in the case against Kellner. The case against Kellner is purportedly supported by a surreptitious recording of Kellner made by Meyer. The Jewish Week had the tape reviewed by a Yiddish native speaker, concluding "[w]ithout context, the meaning of many of the exchanges is ambiguous at best; to someone with knowledge of the back story, it becomes clear that the discussion is not about attempts by Kellner to extort Meyer Lebovits using emissaries, but rather is about the beit din and those involved in it, Kellner's desire to see Baruch Lebovits plead guilty in his son's case, and attempts by others to get Kellner to drop the charges." Meyer had made the recordings of Kellner a year before his father's conviction, but did not bring a charge for these serious crimes until after the conviction.
Other video recordings were obtained and apparently given to the District Attorney by Sholem Yosef Weisner. (In 2007, Weisner was arrested on felony charges of cheating and first-degree larceny as well as criminal trespass in connection with marking cards at a Connecticut casino.) He claims the videos prove Kellner was involved in a conspiracy. However, Weisner gloated to me that he had taken the videos of the victim for the purpose of exonerating Lebovits.
"I wired the whole house, I told [one of Lebovits alleged victims] that we are filming a movie about his life, and then I made sure that he was good and high before I got him to say that he was paid to testify," Weisner told me and several others about two years ago. Weisner further bragged about his relationship with Lebovits and that he was ready to go to "any lengths necessary" to prove Lebovits' innocence. I was shocked and asked Weisner what he thought about the fact there were so many victims, some who had come forward as well as others who have not (an acquaintance had confided to me that he was too afraid to come forward about the abuse that he suffered in the hands of Lebovits). Weisner responded aggressively, claiming that he knew "for a fact" that Lebovits never molested anyone and that if I were to bring this victim to him, he would be able to prove that he (the acquaintance who confided in me) is lying.
Weisner's aggressive blind faith seems to be undermined by his 2010 affidavit, in which he acknowledges that Lebovits was "a man who liked young men" but "was not a threat" because he just fondled the recorded plaintiff "with his hand." In that same sworn affidavit, he asserts that the recorded plaintiff admitted that he had not been molested and was offered money by Kellner not to testify. However, in the videos Weisner made, the victim nonetheless maintains he was in fact abused by Lebovits and that nobody had paid him to lie. The plaintiff is recorded responding repeatedly to the question of whether Kellner offered him money not to testify or otherwise tried to silence him. On the contrary, "No ... Kellner always told me, 'Zev, go to court, you're going to tell the truth, tell the truth.'" The plaintiff also states in the recordings that many others had offered money to drop the charges.
At the press conference following Weberman's sentencing, a reporter from CBS asked Hynes about the Lebovits case and the charges against Kellner. Hynes was noticeably irritated, saying "I read the Jewish Week article; what's your question?" The reporter asked, "Your office has charged Sam Kellner with extortion into the case of alleged sex offender Baruch Lebovits, according to some legal analysts the evidence against Kellner is practically non-existent; how do you respond to charge that you are going after Kellner because of the pressure from Lebovits and the powerful Satmar community?"
Hynes responded, "It's another one of these silly things to say. Lebovits is going to be retried; his case was reversed on a technicality. The charges against Kellner are independent; it's a claim that he approached some boys in return for money that they would say that Lebovits molested them. There's a tape. It's in Yiddish. It was translated by a well respected Yiddish translator. That translation and the rest of the evidence in the Grand Jury was reviewed by a Supreme Court justice who found the case to be legally sufficient, and there will be a trial." He further added, "What you should look at is what's going to happen in court not the ill informed suggestions of a professor who knows little or nothing about the case." As a follow up to this, I asked if there was a trial date set for Lebovits; one of Hynes' aids responded that they do not have a date yet.
After the press conference, I asked Hynes privately what his office plans on doing regarding those who intimidated Kellner, as well as Lebovits' other victims who have tried to come forward. Hynes evaded the question and spoke only to the Weberman case: "We will protect all of our victims. What we've tried to demonstrate by the indictment of these four guys who offered a half million dollars to this victim [of Weberman] to make this case go away; we take intimidation very seriously." When pressed further about the case against Lebovits, Hynes again lapsed into the purportedly independent charge against Kellner -- which he claimed he was not supposed to discuss with me but would because I seemed "earnest" -- noting that "the initial charge against Lebovits from Kellner's son was that Lebovits touched him inappropriately; definitionally, that was a misdemeanor. Mr. Kellner was not happy about it and thought it should be a felony. We explained to him that it's not a felony. There was a second kid that [Kellner] brought to testify about a series of felonies committed against him by Lebovits. Lebovits was convicted. The case was reversed on a bad technicality; it will be retried. And, you know, [regarding] Mr. Kellner we have a case involved, as mentioned. The reason I didn't want to respond to it is because of the Jewish Week's story that suggested that the [allegedly incriminating] statement [made on Meyer's tape] was ambiguous. It was quite the contrary. It was not ambiguous. It was very very clear. That's a case that will be tried in court." Once again, I asked Hynes directly about the retrial of Lebovits; Hynes said that "there's a date; we don't have it."
The D.A.'s apparent apathy to the witness tampering and intimidation of Kellner and other victims, and his office's seeming indecision about a Lebovits retrial, are not only suspect but extremely disconcerting to me as a survivor, an advocate and also as a citizen. It seems the D.A. is turning a blind eye to the very real intimidation of Lebovits' alleged victims. Hynes' own investigators got a report that Lebovits' daughter threatened an alleged victim, identified as Yoel in the Jewish Week, that she would produce two witnesses to testify that Yoel had molested two children if he did not drop the charges against her father. Kellner was offered large amounts money by various people and pressured not to pursue charges by some within the Hasidic community, which he claimed he reported to the police and the district attorney's office. Kellner, however, refused because "my son is not a prostitute" and "I'm not going to let anyone buy our silence." Ironically, it is Kellner who is facing 21 years in prison for extortion, despite the weakness of the evidence against him and the strength of evidence for him that the D.A. already has in its possession.
On the other hand, Lebovits is out of jail due to a technicality with no set retrial date and unfettered access to children. While Hynes states that the cases against Lebovits and Kellner are independent, he lapses into discussion of the latter when asked about the former, and he cannot not explicitly acknowledge their interdependence. Indeed, after Kellner's indictment last year, Lebovits' lawyer, Arthur Aidala, observed, "we are satisfied and relieved by the D.A.'s actions to follow up on the leads we gave him. It goes a long way to prove our theory that all these charges are false." And Alan Dershowitz, who was later retained to defend Lebovits, hailed the Kellner indictment as a victory for his client.
"The indictment today really made it clear that our client was the victim of an extortion plot."
According to a source close to Lebovits' lawyer, "[Aidala] highly doubts that there will even be a retrial given the charges facing Sam Kellner."
Of course, the alleged witness tampering and intimidation in the Lebovits case could only undermine the case against Lebovits at retrial. But Hynes refused to even address that issue. Indeed, it was only the trial of Kellner that Hynes was adamantly insistent upon. His disclosing his perception of dissatisfaction in Kellner and subsequent production of another victim would seem only to lend reasonable doubt to the case against Lebovits -- a case the D.A. would have to argue for. Defending the decision to pursue charges against Kellner, Hynes stated last year, "child abuse has to be prosecuted vigorously, but we also have to be careful about false complaints," again casting doubt on the case against Lebovits the D.A. would be tasked with prosecuting, and leaving one to wonder how vigorously Lebovits' alleged child abuse could be prosecuted a second time.
The messages sent by the D.A. are equivocal, but actions speak louder than words: Victims of sexual abuse beware, and victims of the powerful be damned.
It is time that the Brooklyn D.A. take a real stand against victim and advocate intimidation and witness tampering. In the cases of Kellner and Lebovits, it appears that the exact opposite is occurring. The Brooklyn D.A. is aggressively pursuing frankly baffling charges against Kellner, while turning a blind eye to the clear intimidation by powerful members of the Hasidic community and Lebovits' family to silence victims. While child molesters may be deemed mentally ill, those who would protect them can only be identified as evil.
There were those who sought to protect Weberman and intimidated the witnesses, but justice has prevailed in that case despite tremendous pressure. Between the tremendous amount of media coverage in this case, lots of advocacy and protests, and most importantly, a brave victim who courageously confronted the man who had tormented her young life for too long and brought him to justice. The conviction of Weberman is a great victory for victims, advocates, ultra-Orthodox communities and the Brooklyn D.A. I hope this victory does not outshine the progress that must still be made and lives up to its promise that, in the end, justice will be served.