Hella Winston (The Jewish Week)
February 7, 2012
Next week, attorney and author Michael Lesher will argue before New York State's highest court for the release by the Brooklyn District Attorney of documents he has been seeking since 2007, related to the failed extradition of Avrohom Mondrowitz.
Mondrowitz, an alleged serial Orthodox child molester who fled to Israel in 1984 before an arrest warrant could be executed, was indicted in absentia by a Brooklyn grand jury on 14 counts — including five counts of sodomy in the first degree — in 1985.
An attempt to extradite Mondrowitz in 1985 failed, and he remained free in Israel until he was arrested in 2007; the arrest came after a renewed extradition request following a change in the extradition treaty between Israel and the United States. After going up to the Israeli Supreme Court, that extradition attempt also failed.
At stake in this case is not only whether or not Lesher — and the public — will get to learn more about the actions of the Brooklyn DA, Charles Hynes, other U.S. and Israeli government agencies and the Orthodox community in the Mondrowitz case, but the effectiveness of New York State's Freedom of Information laws.
Lesher, who represents several Orthodox alleged victims of Mondrowitz at no charge, believes the documents may shed light on why efforts to extradite Mondrowitz stalled for so many years and to what extent, if any, pressure from the politically powerful ultra-Orthodox community played a role.
"This record ought to show us something about what Hynes' office was really doing while Mondrowitz's victims struggled to have him brought back to face justice — its actions, its considerations, its motives and any outside pressures brought to bear on the D.A," Lesher told the Jewish Week.
He added that, "It may also shed light on the real workings of the Kol Tzedek program, which yoked Hynes' office to powerful Orthodox organizations while the Mondrowitz extradition case was pending."
Lesher also believes that Hynes' steadfast refusal to produce the documents indicates that the DA may be trying to hide something.
"If there's nothing in this file to embarrass the DA, why has he fought for so long to conceal it?" Lesher asked.
Lesher's appeal comes at a time of increasing controversy about the Brooklyn DA's refusal to release information about the identities of 90 Orthodox child molesters his office claims to have arrested since 2009. That was the year it launched Kol Tzedek, a confidential hotline working in partnership with OHEL Children's Home and Family Services and other Jewish nonprofits, to encourage Orthodox victims of sexual abuse to report these crimes to secular authorities.
Hynes has justified his refusal to release this information by invoking New York civil rights law intended to protect the privacy of victims; he has claimed that to reveal the name of an alleged perpetrator could somehow, even outside of cases of incest, identify the victim.
Legal experts have questioned the validity of this justification, and some observers speculate that the DA's policy is politically motivated. It is aimed, critics say, at shielding the community and its institutions — as well as the DA's office itself — from the scrutiny that could result if more information was known about these cases and how they were handled.
(Charges that Hynes treats the Orthodox community with kid gloves have dogged him for years. A 2003 Newsday article quoted a retired police captain saying, "In Brooklyn, it almost seemed like there were two penal codes, one for the Hasidic community and one for everyone else." The DA's office rejected the charge, saying its decisions were not politically motivated.)
A spokesman for the DA has declined to answer further questions about the policy regarding the release of the names of Orthodox molesters who have been arrested.
Lesher first became involved in the Mondrowitz case in 1998, as a journalist, when he filed Freedom of Information Law (FOIL) requests with several government agencies for records relating to the Mondrowitz case. He obtained from the DA a number of documents, including police reports and witness statements, redacted so as to remove identifying information about the victims.
Lesher also obtained from federal authorities — though not from the DA, who also should have had it, given he was its intended recipient — a copy of the memo sent to Hynes' office by the Justice Department demanding to know by Sept. 15, 1993 whether the DA wanted the federal government to keep the Mondrowitz file open. Hynes' office replied with instructions to the federal government to close the case as long as Mondrowitz remained in Israel. Lesher suspects this request came under pressure from the ultra-Orthodox community.
In October 2007, following reports that Israel's justice ministry had received an extradition request from the Brooklyn DA, Lesher made another FOIL request seeking records of the case from 1993 to the present. One of the things Lesher hoped to discover was whether the extradition request was made in January 2007, as the DA publicly claimed, or later, after "a period of dithering or outright resistance."
Indeed, Mondrowitz was not arrested in Israel until November 2007, just days after a major exposé about his alleged crimes and flight from justice appeared in the Israeli newspaper, Haaretz.
Hynes denied Lesher's FOIL request, claiming that because the treaty had changed and extradition was now a possibility, the case had become an "active prosecution," which exempted disclosure of the documents under FOIL.
After Hynes' denial, a Brooklyn Supreme Court judge granted Lesher access specifically to the correspondence related to Mondrowitz's extradition. However, an appellate panel unanimously reversed this decision, agreeing with the DA that the release of the documents could interfere with an ongoing investigation and identify victims of a sex crime, "even though redaction might remove all details which 'tend to identify the victim[s]'."
Then, in what the New York Law Journal pointed out was what a highly unusual move, the state's highest court, the Court of Appeals, agreed to hear Lesher's case.
At his appearance next week, Lesher will argue that by permitting a law enforcement agency to withhold any and all documents "that may have something to do with the target of a possible future prosecution," the Appellate Division has created an entirely new justification for withholding information under FOIL." This is of particular concern because, as Lesher argues, FOIL "mandates liberal disclosure of documents to the public."
Indeed, according to Robert Freedman, the executive director of the Department of State Committee on Open Government, "Even if it can successfully be argued that the extradition materials were compiled for a law enforcement purpose, in consideration of changes in circumstances [the now closed extradition case], it may be difficult for the DA to prove that disclosure at this juncture would in some way be damaging."
In fact, last month the New York Civil Liberties Union filed an amicus brief in support of Lesher's appeal, arguing, in essence, that agencies have an obligation — already recognized by the high court — to redact and release, rather than withhold, documents. The brief further notes that permitting agencies to make blanket assertions of FOIL exemptions without demonstrating how the release of specific records would be damaging is inconsistent with the Court's earlier rulings.
While Lesher is hoping to prevail in order to learn more about how the Mondrowitz case was handled, those concerned with Freedom of Information laws also consider this to be a very important matter.
Indeed, according to Freedman, "reconsideration by the Court of Appeals of the statue that forbids the disclosure of the entirety of a record that identifies a victim of a sex offense would be welcomed by many. In too many instances that statute has served to protect defendants, which clearly could not have been its intent."