By Hella Winston (The Jewish Week)
July 3, 2013
In its case against a chasidic sex abuse whistleblower, the Brooklyn district attorney's office is withholding “highly significant” evidence favorable to the defense and may have suborned perjury, according to an attorney for Sam Kellner.
Kellner, a resident of Borough Park, is awaiting trial on charges he paid a witness to fabricate claims of sexual abuse by Baruch Lebovits, a cantor and prominent member of the Munkacs chasidic community. Kellner, whose son is also an alleged Lebovits victim — and who brought additional Lebovits victims to the police — is also charged with attempting to extort money from the Lebovits family.
The allegations, leveled at prosecutors by Kellner’s lawyer, Niall MacGiollabhui, in a letter dated July 2, come as Brooklyn District Attorney Charles Hynes’ office is being scrutinized for a number cases that have fallen apart or resulted in vacated convictions in part because of prosecutors’ failures to meet their legal obligation to turn over information that is favorable to the defense.
Lebovits was convicted of child molestation in 2010 and sentenced to 10 to 32 years in prison; his conviction was overturned on a technicality and he is now free, pending a new trial. Kellner, who was arrested after Lebovits’ conviction, is set to go to trial on July 8.
The case against Kellner hinges on two witnesses: Meyer Lebovits, the son of Baruch Lebovits, and a man The Jewish Week has called Yoel. In 2008, Yoel gave chilling testimony to a grand jury about the sexual abuse he had suffered for years at the hands of Baruch Lebovits, who was subsequently charged with close to 70 counts of sexually abusing Yoel.
In November of 2009, according to court documents, the DA received a call from a prominent attorney on Yoel’s behalf to say that Yoel was no longer cooperating with the prosecution. At the time, Yoel did not deny he was a victim of Lebovits. Then, several months after Lebovits was convicted on the testimony of another witness, Yoel was brought forward to the DA by supporters of Baruch Lebovits. At that time he accused Kellner of paying him to fabricate his claims that Lebovits had abused him.
(Lebovits’ attorneys, Arthur Aidala and Alan Dershowitz, have taken credit in news reports for providing the DA with the basis of the case against Kellner after Lebovits was convicted.)
Since his arrest, further evidence has emerged that Yoel was pressured into backing out of testifying against Lebovits at trial, given a lawyer and then, after Lebovits was convicted on the testimony of another witness, manipulated into recanting his allegations against Lebovits and accusing Kellner. (A source close to the case told The Jewish Week that a number of community activists were present at a meeting between Yoel and his attorney; someone with knowledge of that meeting reported that the activists were instructed not to reveal their presence there.)
In his letter to the prosecutor, MacGiollabhui alleged that the DA’s office is withholding critical information about the suspicious circumstances surrounding Yoel’s withdrawal from the criminal case against Lebovits. The information MacGiollabhui is seeking regarding Yoel is key in light of the fact that several sources familiar with the case have told The Jewish Week that the detective and sex crimes prosecutors working on Yoel’s case expressed the belief that Yoel had been “turned,” or intimidated, by the Lebovits family, which supplied him with an attorney to get him out of testifying (and later to accuse Kellner). In fact, The Jewish Week obtained information that the sex crimes prosecutors were even considering compelling Yoel to testify against Lebovits.
Given all this, Kellner’s attorneys have questioned how and why the district attorney could have credited Yoel’s allegations against Kellner, let alone move for an indictment against him, instead of investigating the intimidation and manipulation to which Yoel was subjected.
“Instead of supporting Yoel, and helping him to tell the truth about the years of abuse he suffered, the DA abandoned him,” MacGiollabhui told The Jewish Week. “Even more shameful, I now expect the DA to blame Yoel for not being trustworthy.”
MacGiollabhui is also asking for the DA to state in open court next week whether Lebovits indicated a willingness to plead guilty to molesting Yoel at any point before Yoel withdrew from the criminal case. He notes in the letter that, if such a plea was contemplated, withholding such information from the defense “would constitute a grave violation” of the DA’s obligation to turn over any information favorable to the defense. And it would, MacGiollabhui’s letter continued, “show knowledge on the part of your office that [Yoel] was a genuine victim of Baruch Lebovits and that, when he testified to the contrary in front of the Grand Jury that indicted my client as a result, he committed perjury.”
“In such circumstances,” MacGiollabhui continued, “your office would have been complicit in suborning perjury.”
Indeed, there is reason to believe that Lebovits may have been willing to accept a plea deal on the charges related to Yoel and Kellner’s son; such a supposition is based on an audiotaped conversation, in Yiddish, the DA has held up as evidence that Kellner was involved in an extortion plot against the Lebovits family. In that conversation — which The Jewish Week has determined provides no clear evidence that Kellner is an extortionist and seems instead to vindicate him — Lebovits’ son Meyer says that his father was in fact willing to plead guilty.
“He wanted to plead guilty,” Meyer says, according to the DA’s translation of the tape, repeating himself several times before adding, “They [the DA] didn’t give him what he wanted” — apparently, according to the conversation, 10 years probation.
A spokesman for the DA’s office declined to comment on whether or not it engaged in plea negotiations regarding Lebovits. The office also did not reply to a request for comment about allegations it is withholding exculpatory information from Kellner’s attorneys.