By Emily Shire (The Daily Beast)
October 7, 2014
After initially facing up to 32 years in prison for eight counts of child sexual abuse, Baruch Lebovits walked out of Riker's Island last week a free man. He had served just under 16 months of total prison time.
That Lebovits, a cantor from the ultra-Orthodox Borough Park section of Brooklyn, was even convicted is seen as a victory considering the difficulty of prosecuting abuse in that community. However, his release is disappointing, if not surprising, for those who hoped Brooklyn district attorney Kenneth Thompson would be the man to end decades of ultra-Orthodox sex abuse cover-ups.
Thompson beat out Charles Hynes for Brooklyn DA, ending a reign that last more than 23 years. Towards the end of his time as DA, Hynes was scrutinized for his perceived unwillingness to prosecute crimes against the ultra-Orthodox, especially in regards to sexual abuse. At best, his administration appeared exceptionally lax, and at worst, it willfully obstructed justice. He was famously reluctant to release the names of convicted sex abusers in the Orthodox community. His office let Rabbi Yehuda Kolko get away without jail time or registering as a sex offender. Instead, Kolko received a plea deal that allowed him to plea guilty to child endangerment. The DA claimed the alleged victims—first graders in Kolko’s class—were unwilling to testify, but chief of the Kings County sex crimes division, Rhonnie Jaus, publicly said that their parents had been willing to put the kids on the stand. It was one of many cases that raised questions about Hynes' willingness to prosecute ultra-Orthodox sex abuse.
Many critics of abuse and corruption in the ultra-Orthodox community hoped and believed Thompson would bring justice to Brooklyn. For his part, Thompson openly criticized Hynes’ record on crimes committed by the ultra-Orthodox. “Every community in Brooklyn has to be treated the same,” he said during a 2013 interview. “When I become Brooklyn DA, I’ll make sure there’s equal justice for everyone, under the law.”
In fact, days after Thompson was elected last November, he requested that Hynes freeze any new ruling on the Lebovits case. Thompson said he wanted to ensure a “full opportunity to review the Lebovits matter and participate in the decision to take the case to trial or dispose of it by way of a guilty plea.” The Jewish Week reported that sources said Hynes was expected to dispose of the case with a lenient plea deal. Ultimately, Thompson did the same, if not worse.
According to a transcript of the plea deal hearing from May 16, 2014 reviewed by The Daily Beast, Lebovits served even less time than was proposed during negotiations. Judge Mark Dwyer told Lebovits:
I am also asking that you waive early release. Our understanding is that you normally would be released after 16 months. The waiver of early release we think might have the effect of keeping you in some months more, not more than 24, but some more months than 16.
And yet Lebovits served barely 16 months—13 less than his original conviction. He re-entered jail on July 9 and was released the night of September 29.
“My client is not surprised,” said Niall MacGiollabhui, the lawyer for Samuel Kellner, whose son was allegedly abused by Lebovits. “This is what he's gotten all along from that [the Brooklyn DA’s] office, but certainly we thought once Thompson came in, it would be different. It’s business as usual in Brooklyn.”
Kellner himself was indicted by the Brooklyn DA’s office under Hynes. The charges against him are a window into a case as complex as it is disturbing.
Lebovits was convicted of eight counts sexually abusing a child in 2010, but the case against him first emerged in 2008 when Kellner’s son said Lebovits had fondled him. Kellner says he was told by officials that Lebovits was unlikely to serve jail time as a man with a clean record, or even be prosecuted by the DA's office, according to the Jewish Week. He became determined to locate other victims who would testify to abuses that could put Lebovits behind bars. He found one man, who testified in court that Lebovits had performed oral sex on him multiple times as a teenager. The man’s testimony helped lead to Lebovits’s 2010 conviction and an initial sentence of 10-2/3 to 32 years behind bars.
However, Lebovits’ conviction would ultimately be overturned—though he wasn’t acquitted outright—in 2012. His defense team (led by none other than Alan Dershowitz) convinced an appeals court that the trial had been prejudiced by the prosecution’s failure to share a police detective’s note about one of the witnesses expected to be called by the defense. While the court said Lebovits was denied his right to a fair trial, it also noted that there was sufficient evidence to prove he was guilty of the same crimes.
Meanwhile, the DA’s office indicted Kellner for supposedly bribing a different alleged victim—who testified before a grand jury but not in the trial that lead to Lebovits's conviction–who later claimed Kellner had paid him $10,000 to speak out against Lebovits. Kellner was also charged with attempting to extort the Lebovits family. The alleged evidence against Kellner was gathered by Lebovits supporters and family members. The alleged victim who recanted was deemed “wildly inconsistent” by the assistant district attorney, Kevin O’Donnell. Days before the trial against Kellner was supposed to begin the prosecution discovered that the witness had only recanted after accepting financial support from Lebovits’ supporters.
In fact, Hella Winston at the Jewish Week reported that the Sex Crimes Unit had evidence the alleged victim had been intimidated into recanting and turning against Kellner. Winston had a native Yiddish speaker listen to the Yiddish audio recordings brought to the DA as supposed evidence that Kellner was trying to extort the Lebovits family. That speaker concluded that the audio just showed “Kellner's desire to see Baruch Lebovits plead guilty” and “determined that many of the exchanges critical to the overall meaning of the conversation were distorted in the translation.” Ultra-Orthodox insiders argued that Lebovits’ family had falsified or misrepresented the evidence.
Thompson himself slammed the charges against Kellner during his campaign for the Democratic DA nomination, attending a rally in support of dropping the charges. But after he won the nomination, he refused to comment on the case.
Thompson dropped the charges against Kellner in early 2014, which was a victory of sorts for advocates against ultra-Orthodox sex abuse. However, critics still argue that Thompson let Lebovits’ supporters off easy by failing to probe the fraud and intimidation allegations.
“As bad as Hynes was and as bad as that office was, they were making some attempts to investigate what happened,” Kellner’s lawyer, Niall MacGiollabhui, tells The Daily Beast. “Once Thompson came in, the idea of investigating what led to my client's arrest ended, even though they admitted criminal behavior led to my client being framed. This DA is doing nothing to investigate and prosecute those who blatantly obstructed justice and intimidated victims.” When asked about the knowledge of Kellner being framed, the Brooklyn DA told The Daily Beast it is the “policy of the District Attorney’s office not to confirm or deny investigations.”
For activists, the alleged failure to investigate the evidence presented against Kellner perpetuates the dangerous message in the ultra-Orthodox community that whistleblowers will be severely punished. “How do you count against fabricated evidence being given to law enforcement and the DA to destroy someone's life? That's not a minor offense,” says Shmarya Rosenberg, the man behind the blog Failed Messiah, which exposes corruption and abuse in the ultra-Orthodox community. “Thompson will say 'we're investigating'. Fuck you! You have all the information. It's out there. There's no question what happened. The only question is, why is Thompson taking so long? Why is there no prosecution?”
Thompson’s problems with the ultra-Orthodox community go beyond the prosecution of sex abuse. In April, the DA sparked local outrage when his office gave another lenient plea deal to a man who threw bleach in the eyes of Rabbi Nuchem Rosenberg, an activist against sex abuse in the Satmar sect of the ultra-Orthodox community. The suspect in the attack, Mellech Schnitzler, got off without any prison time. He plead guilty in a plea deal and was punished only with five years of probation. "We changed the DA but we didn't change any behavior in the DA's office," Rosenberg told the New York Daily News. "Where is our protection?"
Part of the reason activists have hoped for major change under Thompson is because he didn't rely as heavily on ultra-Orthodox support to secure his position. Thompson won the Democratic primary, which effectively killed Hynes' campaign, without support from the vast majority of Brooklyn Orthodox leaders.
To a certain degree, Thompson made up for what was perceived as his predecessor's tacit protection of sex abusers in the community. He released the names of defendants in Orthodox sex abuse cases, which Hynes had refused to share with the public.
Even Thompson's critics admit Thompson isn't necessarily going after any group in Brooklyn, but that lax attitude perverts his “equal justice for everyone” vow. For example, with the case of Schnitzler throwing bleach in the rabbi's eyes, it is Thompson's office’s position that “a felony conviction with a no prison deal is worth it,” says Rosenberg (of Failed Messiah), even with “cases that have nothing to do with Orthodox community.”
Still, Rosenberg faults Thompson for not taking a stronger stand to fix perceived past errors, when he appeared to promise to do so in his campaign. “He was clever because his words were meaningless. There's no barometer. All cases are treated the same way, all badly mind you. But he did treat them all equal,” says Rosenberg. “That he did it wrong and did it in a horrible way is a different story.”
Unwillingness to change the status quo in Brooklyn may be Thompson’s bigger fault. MacGiollabhui doesn't suspect any underhanded favors stopped a probe into Lebovits' supporters’ alleged efforts to frame Kellner; he just thinks the DA's office doesn't care. “They couldn't give a shit about kids from that community,” he says. “There's a certain attitude of leaving people in that community to their own devices. [The DA's office] couldn't care less.”
Still, others say the DA’s prosecutions will do little to stop the problem of sex abuse in the insular community. Michael Lesher, a lawyer who has been investigating sex abuse in the Orthodox community for decades, doesn't believe the DA makes a critical difference. “The real problems facing sex abuse prosecution is systemic. It doesn't depend crucially on who the DA is. It's still a message of if you're going to come forward and accuse people of sexual abuse, you're still taking a risk. The community will find ways if they can to tarnish your reputation and get you prosecuted,” he said, though he added, “It seemed to a surprising extent in this case is the DA is willing to get along with it.”
Thompson may be no worse than Hynes, but his first year has been frustrating for advocates who once had high hopes for his tenure. “I don't think Thompson is an inherently bad guy,” says Rosenberg. “But he's an extreme disappointment.”