The Schuster Institute for Investigative Journalism
February 13, 2012
Attorney and author Michael Lesher will make oral arguments on February 14 before New York State's Court of Appeals in his longstanding Freedom of Information (FOIL) lawsuit against Brooklyn District Attorney Charles Hynes. If Lesher prevails, the district attorney may be forced to provide some much needed transparency regarding cases of child sexual abuse in fervently Orthodox (sometimes referred to in media reports as the "Haredi" or "ultra-Orthodox") communities.
Hella Winston, a Senior Fellow at the Schuster Institute for Investigative Journalism, wrote about what's at stake in the February 14 hearing.
Freedom of Information—On Trial
The Court's decision in this case will have a significant impact on the public's access to information about what the government is doing in citizens' names.
Three significant issues will be affected by this ruling:
- The public's ability to learn details about the Brooklyn district attorney's decision-making process and actions (and possibly those of other agencies and organizations) in a high profile case involving allegations of child sexual abuse.
- Journalists' capacity to do public accountability reporting about cases involving victims of sexual abuse in New York.
- The openness and effectiveness of New York's Freedom of Information law.
Hella Winston's Reporting
Winston has reported for several years—primarily in the New York Jewish Week, the nation's largest Jewish weekly—about allegations of secrecy and cover-ups involving child sexual abuse in fervently Orthodox Jewish communities. Despite many roadblocks, including community members' fears of speaking out and a lack of transparency from both the communal leadership and law enforcement authorities (similar to the resistance Lesher has experienced), Winston, perhaps more than any other journalist, has reported relentlessly and extensively about this issue.
She has focused primarily on institutions—both within and outside of these communities—that have played a role in protecting perpetrators and their enablers. These include religious tribunals, schools, community-based social service organizations, therapists, unsupervised volunteer neighborhood security patrols (funded, in part, by public monies) and local law enforcement.
Winston has described a world in which victims typically refuse to report child abuse allegations to local law enforcement for fear of being stigmatized and branded as "informers" by religious leaders who have repeatedly declared that all allegations of abuse must first be reported to rabbis. As such, these communities have developed what some have described as a parallel, or private, justice system. Despite the many ways such a system violates the law, Winston has reported that some law enforcement agencies have tolerated this practice for political reasons. Indeed, Winston notes that her investigations into this parallel justice system have been hampered over the years by weak public accountability, particularly on the part of the Brooklyn district attorney's office.
Michael Lesher's Freedom of Information Lawsuit
Lesher is suing to compel the Brooklyn district attorney to release, under FOIL, documents related to efforts to extradite alleged serial child molester, Avrohom Mondrowitz. Mondrowitz, a member of the fervently Orthodox community, fled from New York to Israel in 1984—likely mere hours before a warrant for his arrest could be executed, law enforcement sources told Winston. Mondrowitz was indicted in absentia by a Brooklyn grand jury in 1985 on 14 counts, including five counts of sodomy in the first degree. After two failed attempts to extradite him, Mondrowitz remains in Israel to this day.
After Mondrowitz fled to Israel in 1984, then Brooklyn District Attorney Elizabeth Holtzman attempted to extradite him, but her effort failed. Mondrowitz lived freely in Israel until he was arrested in 2007, pursuant to a renewed extradition request, this time made by Brooklyn District Attorney Hynes. Winston has reported that in recent years, Hynes has come under pressure from alleged victims' attorneys and child advocates for what they see as his "coddling" of fervently Orthodox child molesters. Mondrowitz successfully fought the request all the way to the Israeli Supreme Court, which ruled in 2010 that to extradite Mondrowitz some 25 years after he allegedly committed his crimes would violate due process.
In 2007, using New York State's Freedom of Information Law, Lesher, who represents some alleged victims of Mondrowitz, requested documents pertaining to the Mondrowitz case. Lesher has said that he believes they may shed light on why efforts to extradite Mondrowitz stalled for so many years and to what extent, if any, pressure from politically powerful members of the fervently Orthodox Jewish community in Brooklyn played a role. (He is also writing a book about sexual abuse cover-ups in such Orthodox Jewish communities.)
Specifically, Lesher requested:
"any and all records, files, notes, correspondence, memoranda or other documents [in the D.A.'s possession] pertinent in any way to the matter State v. Mondrowitz ... and pertaining to the time period from September 1, 1993 to the present date, including but not limited to any correspondence between the D.A.'s office and the Department of Justice, the Department of State or any other branch of the United States government."
Hynes denied Lesher's request by claiming that, with a trial in Brooklyn a possibility, pending a successful attempt at extradition, he could not release any documents because they were part of an ongoing prosecution. In 2009, Lesher filed a petition in the Supreme Court of Kings County (the county where Brooklyn is located) asking for a ruling on his request for the documents. The court held in January 2011 that while FOIL "exempts from disclosure documents related to an active and ongoing prosecution, the correspondence between the respondents and federal agencies regarding [Mondrowitz's] extradition from Israel should be disclosed, subject to redactions."
Hynes appealed to the Appellate Division, which in May 2011 unanimously reversed the lower court's decision, agreeing with the district attorney 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]'."
Lesher will argue before that court that FOIL exemptions do not apply to the documents related to the extradition and that this material should be released, subject to redactions.Legal briefs related to this case have been filed with the court. They include:
- Opening brief and appendix submitted by Appellant Michael Lesher.
- Respondent's brief and appendix submitted by Brooklyn District Attorney's office.
- Reply brief submitted by Appellant Michael Lesher.
- Amicus brief filed by the New York Civil Liberties Union Foundation.
Lesher's appeal comes at a time of increasing controversy about Hynes' refusal to release information about the identities of more than 90 child molesters from the fervently Orthodox community his office claims to have arrested since 2009. That's the year his office launched Kol Tzedek, a confidential hotline created in partnership with OHEL Children's Home and Family Services and other Jewish non-profits, to encourage members of fervently Orthodox Jewish communities to report their allegations of sexual abuse to law enforcement. Hynes is invoking a New York civil rights law intended to protect the privacy of victims of sexual assault to justify his refusal to release even the names of the alleged perpetrators.