A secretly recorded tape of an alleged serial pedophile making incriminating statements to one of his victims has apparently “gone missing” from the Brooklyn District Attorney’s office.
That bombshell revelation came from chasidic abuse whistleblower Sam Kellner’s lawyers in court Tuesday morning, when the Brooklyn district attorney asked for and received an adjournment of Kellner’s case until the first week in January, when DA-elect Ken Thompson takes office.
Last week, the prosecutors on the Kellner case had recommended it be dismissed today for lack of evidence, but, in a development that shocked seasoned lawyers, were overruled and then tossed out of their bureau by their controversial boss, Michael Vecchione. While Jerry Schmetterer, the spokesman for Brooklyn DA Charles Hynes, told the New York Post on Monday that Vecchione “believes there is a case” against Kellner, the assistant district attorney who appeared in court to request the adjournment, John Holmes, made it he clear he was merely the messenger and had no information about the case; he said the case has yet to be reassigned.
Kellner’s lawyers, who lambasted the DA’s office for “playing games” with the court, told the judge they were ready to go to trial. They also requested discovery materials to which they are entitled, including the tape of a conversation between accused child molester Baruch Lebovits and one of his alleged victims. (Lebovits was convicted of child sexual abuse in 2010 but got his conviction reversed because of a prosecution violation. The district attorney has vowed to retry him and his next court date is Nov. 19, though sources have told The Jewish Week that he is likely to get a plea deal with little or no jail time).
Prosecutors had disclosed the transcript of that tape — on which Lebovits all but admits to molesting the young man but tells him to “deny it” — as what is known as Brady material, or exculpatory information, to Kellner’s attorneys in July; Kellner’s attorneys were not, however, provided with the actual tape.
A recent Jewish Week story about the recording noted that the tape had not been used at Lebovits’ trial and had apparently never been provided to Lebovits’ attorneys, a violation of discovery rules. Now it appears, based on Kellner’s attorneys’ statements to the court on Tuesday, that the tape is missing, something they deemed highly “irregular.”
Kellner’s attorneys also requested that the district attorney provide them with the results of an investigation prosecutors claimed to have undertaken this summer into the relationship between the Lebovits family and a man named Zalmen Ashkenazi, who may have played a role in manipulating one of Kellner’s accusers to fabricate allegations against him.
They also asked for notes taken by a sex crimes assistant district attorney and detective, as well as information about the fact that two, differing versions of the indictment against their client have been given out to members of the press. The Jewish Week inquired about the differing indictments early this year and was told by Schmetterer they were the result of a “computer glitch.”
Kellner’s lawyers also told the court that “third parties” had been delivering tape recordings of their client to the DA’s office and, while they say prosecutors told them they were deemed to have no evidentiary value against their client, they requested those as well.
The judge ordered this material be given to the defense in court on Nov. 25.