On eve of primary, Kellner's attorneys say Brooklyn DA is engaging in ‘blatant strategy of delay.’
Lawyers for chasidic whistleblower Sam Kellner have accused the Brooklyn district attorney of engaging in a “blatant strategy of delay” to avoid exposing the “utter shamefulness” of their client’s prosecution ... to the electorate” in advance of this Tuesday’s Democratic primary.
The charges were leveled at Brooklyn District Attorney Charles Hynes, who is running for election to a seventh term, in a letter from Kellner’s attorneys to Brooklyn Supreme Court judge Ann M. Donnelly after they learned that prosecutors had, without notifying them, obtained from the judge an additional two weeks to respond to a defense motion to dismiss charges against their client “in the interests of justice.” The response had been due on Sept. 3, before the Sept. 10 primary, and must now be filed by Sept. 17.
Kellner stands accused of paying a man to fabricate sex-abuse claims against Baruch Lebovits and attempting to extort money from the Lebovits family in exchange for preventing other witnesses from coming forward. The myriad, serious weaknesses in the prosecution’s case have been explored in a series of Jewish Week stories over the past year. However, as recently as July 24, Hynes himself has made public statements indicating a belief in Kellner’s guilt — something legal ethics expert Stephen Gillers told the New York Times’ Michael Powell is in violation of ethics rules prohibiting prosecutors from offering “any opinion as to the guilt or innocence of a suspect” in a criminal proceeding.
The letter to the judge, written by attorney Niall MacGiollabhui, alleges a “deliberate strategy” of delay by the district attorney, who had already received two successive adjournments in the case. Both adjournments — the first of which was requested on July 8, the day Kellner was set to go to trial, and the second on the subsequent trial date, July 29 — were granted after prosecutors claimed they needed additional time investigate information they had recently obtained from their “core” witness against Kellner indicating that powerful supporters of Lebovits may have manipulated and pressured the witness into accusing Kellner. However, it turns out that that information — which emerged in interviews in late June and early July in which the witness contradicted his prior sworn statements and, according to experts, fatally damaged his credibility as a witness against Kellner — had been known to prosecutors for a almost a year, though they had not shared it with the defense. In those same interviews, the witness also reportedly accused Steve Litwin, the detective on the Lebovits case, of colluding with Kellner to force the witness to fabricate his claim against Lebovits — an allegation sources familiar with the case say prosecutors did not find credible but nonetheless referred to the Internal Affairs Bureau, prompting an investigation of Litwin. Prosecutors have also cited the Litwin investigation as a reason for needing to delay Kellner’s trial.
MacGiollabhui notes in the letter that at the time of the first adjournment he expressed an “expectation that a very deliberate and cynical strategy of delaying any progress in this case [before the primary] was underway,” describing as “laughable” the district attorney’s claims of needing more time to investigate the statements of a witness the prosecution would surely not use at trial, given the grave issues with his credibility. Indeed, on the day of the second adjournment, MacGiollabhui filed a motion to dismiss the charges related to this witness “in the interests of justice.” Days before the district attorney’s response to the motion was due, MacGiollabhui was informed that prosecutors had made — and been granted — an ex parte request to the judge for additional time to respond to the motion.
That prosecutors were unable to make their response within the allotted five weeks — and indeed asked for two weeks more — raises red flags among experienced criminal lawyers.
“A motion to dismiss in the interests of justice requires defending the integrity of the case. It does not require a ‘law heavy’ response,” Mark Bederow, a former Manhattan prosecutor and defense attorney told the Jewish Week.
“Courts rarely grant these motions for the simple reason they seek a dramatic remedy: a court overruling prosecutorial discretion and dismissing a case because in its own judgment ‘it’s the right thing to do,” he continued.
Referring to a July appearance on the Zev Brenner radio program where Hynes took aim at the Jewish Week and proclaimed the case against Kellner “substantial” and the delays his fault, Bederow noted that “given the DA’s campaign appearance in which he ill-advisedly all but publicly pronounced Kellner guilty and faulted Kellner for all of the delays in the case, seven weeks seems like an awful lot of time for experienced prosecutors to respond to a formulaic motion which will likely be summarily denied. “
In his letter, MacGiollabhui goes even further, accusing the district attorney of making a “surreptitious request to delay this case further when, rather than respond in a court of law to Defendant Kellner’s motion to dismiss, it condemns him in public as guilty and blames him for the delay ... A defendant, innocent until proven guilty, should not be loudly condemned as guilty by a [DA] trawling for votes.”
An e-mail to a DA spokesman requesting comment did not receive a reply.
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