Material turned over by Brooklyn DA at 11th hour suggests inconsistent statements from key witness.
On the eve of his scheduled trial date, prosecutors turned over to Sam Kellner’s defense attorneys evidence that appears highly damaging to Brooklyn District Attorney Charles Hynes’ case against the chasidic sex abuse whistleblower, prompting his lawyers to call for an “outside investigation.”
Kellner, a resident of Borough Park, is charged with paying a witness — a man The Jewish Week refers to as a “Yoel” — 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 via emissaries sent to Lebovits’ son Meyer.
The evidence, which was turned over last Friday, three days before the scheduled start of the trial on Monday, July 8, includes notes of interviews prosecutors conducted with a key witness over the past two weeks. In the interviews, Yoel made a series of inconsistent statements, including some that directly contradict his grand jury testimony against Kellner.
For example, while Yoel testified in the Kellner grand jury that he knew Lebovits from synagogue, in a July 1 interview with Nicholas Batsidis and Joseph Alexis, two assistant district attorneys, and Rackets Division Chief Michael Vecchione, he claimed that he had “never seen Baruch Lebovits in his life.”
In the same interview, Yoel also denied picking Lebovits out of a photo array, which, along with Yoel’s statements to a detective, led to Lebovits’ arrest. However, five days earlier, on June 26, he told prosecutors that Lebovits “could have molested me. [I] can’t really say.”
During the course of these interviews, Yoel also told prosecutors that the reason he came forward with his allegations against Kellner was because, according to their summary of the conversation, he had become “disenchanted” with him after Kellner failed to pay him “a fee that the two had agreed upon for his false testimony.” However, in the Kellner grand jury, Yoel testified that Kellner gave him approximately $10,000 to testify against Lebovits.
All of the inconsistencies and contradictions in Yoel’s statements seriously undermine the prosecution’s case against Kellner, experts say.
According to former Manhattan prosecutor and defense attorney Mark Bederow, “This witness has self-immolated. First, he swears to a pattern of years-long abuse by Lebovits. Then he reverses course and claims that he lied under oath and that although he knows Lebovits, he fabricated the abuse claims against him because Kellner paid him to do so. Then, on the eve of [Kellner’s] trial, he contradicts both prior sworn statements by bizarrely claiming he has never met Lebovits, but that [Lebovits] ‘may’ have molested him. He then alters his sworn testimony by claiming that he had not been paid by Kellner before perjuring himself at Kellner’s request.
“I don’t see any set of circumstances under which the DA can proceed with Yoel as a witness against Kellner.”
An e-mail to DA spokesman Jerry Schmetterer seeking comment on whether, in light of these recent disclosures, the DA plans to dismiss the charges against Kellner relating to Yoel did not receive a response.
In his recent interviews with prosecutors, Yoel also acknowledged that community activist Zalmen Ashkenazi — who Yoel initially told prosecutors he did not know — has paid for his flights to and from Israel (where he is currently living) as well as his school fees, apartment and lawyer. He also said that he needs Ashkenazi’s “permission to return to the U.S. when he’s in Israel.” Credit card and travel records obtained by prosecutors and supplied to Kellner’s defense attorneys confirm that Ashkenazi has paid for several of Yoel’s flights.
The DA also confirmed that Lebovits’ attorney made several unsuccessful attempts to obtain a plea deal on charges related to Yoel, something Kellner’s lawyers see as evidence that Yoel was in fact a true victim of Lebovits. As a result, they believe that the DA, in essence, colluded with Lebovits’ defense attorneys to suborn perjury in presenting Yoel to the grand jury to testify against Kellner.
This new information lends significant weight to suspicions Kellner’s attorneys have harbored all along: that Yoel was intimidated out of testifying against Lebovits at trial and then further manipulated to make false allegations about Kellner in order to hinder the DA’s ability to retry and convict Lebovits. (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.) That the DA possessed so much circumstantial evidence to this effect before Kellner’s arrest in 2011 has led them to question how and why their client was ever indicted.
Indeed, the fact that the DA apparently unquestioningly took these allegations against Kellner from Lebovits’ defense attorneys and failed to investigate — until finally forced to do so by the prospect of the truth being revealed at Kellner’s trial — the possibility that Yoel was a victim of intimidation and witness tampering has also convinced them of the need for an independent investigation.
“There is overwhelming evidence of blatant and concerted efforts by Lebovits and his associates to pervert the course of justice and cover up his appalling crimes,” one of Kellner’s attorneys, Niall MacGiollabhui, told The Jewish Week.
“What is profoundly disturbing is that none of these efforts would have been successful without the active cooperation of the district attorney,” MacGiollabhui continued.
“Clearly, an outside investigation is now required to ensure that those ultimately responsible are held to account for this travesty of justice.”
The call for an outside investigation comes as DA 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. Hynes is seeking re-election to a seventh term and faces two challengers in a September primary.
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