Brooklyn District Attorney-elect Ken Thompson is asking outgoing District Attorney Charles Hynes to seek an adjournment in a high-profile sex abuse case until Thompson takes office in January, The Jewish Week has learned from a source close to Thompson’s transition team.
The request, which was delivered in writing (and copied to the judge and defense attorney on the case) to Hynes last Friday, asks that, “based upon the very serious allegations in the case,” no disposition be offered at the “upcoming court conference on November 19th” and that “no procedural steps be taken in the case until” Thompson takes office.
In the letter, Thompson notes that he is making this request because it is “important that I have a full opportunity to review the Lebovits matter and participate in the decision to take the case to trial or dispose of it by way of a guilty plea.” He also asks Hynes to make “arrangements [for Thompson] to receive a copy of the entire case file and have an opportunity to speak with the assistants who are handling this matter as soon as possible.”
This request from Thompson comes on the same day a group of advocates, abuse survivors, anti-abuse activists, rabbis and concerned citizens are to submit a letter to the judge in the case paralleling Thompson’s concerns, but focusing on a request not to allow a plea bargain until certain “irregularities” in the prosecution’s handling of the case are addressed.
Sources have told The Jewish Week that Hynes was expected to dispose of this case with a plea bargain involving little or no additional jail time for Lebovits, who was convicted of sexual abuse in 2010 (and served two years) but had his conviction reversed because of a prosecution violation. At the time of the reversal, a new trial was ordered but has yet to occur, with many believing the plea offer was to be brought before the judge next week.
The case against Baruch Lebovits, a cantor and travel agent from a well-connected chasidic family, began in 2008, and has been plagued with problems. Initially, prosecutors had three within-the-statute-of-limitations witnesses against Lebovits, all of whom had sought and obtained rabbinic backing to report their abuse to the police. One of those witnesses abruptly dropped out of the case before trial, and there is substantial evidence to indicate that he was intimidated into doing so by Lebovits’ supporters. (Despite this, prosecutors never sought to bring witness-tampering charges against the individuals believed to be involved in the intimidation).
At Lebovits’ widely followed trial, which featured the testimony of a second witness, it emerged that prosecutors had failed to turn over in a timely manner, and as required by law, a complete set of notes containing the complaining witness’ statements to the police, or what is known as Rosario material. The defense made a motion to the trial judge to declare a mistrial, but the court denied it, attempting to remedy the violation by recalling the witness and allowing the defense to cross-examine him about the newly disclosed notes.
In what abuse survivors and their advocates lauded as an unprecedented victory in the fight against child sexual abuse in the haredi community, Lebovits was convicted and sentenced to a stunning 10 to 32 years in prison. (The third case against Lebovits, a misdemeanor, was dropped after Lebovits’ conviction). However, two years later an appellate panel reversed the conviction, ruling that the lower court should have declared a mistrial and that prosecutors’ failure to turn over the notes “substantially prejudiced the defendant.” The panel did determine that the evidence was nonetheless legally sufficient to establish Lebovits’ guilt beyond a reasonable doubt and noted that it was “satisfied that the verdict of guilt was not against the weight of the evidence.”
And along with these setbacks was the arrest in 2011 of Sam Kellner, the father of the third alleged Lebovits victim (the misdemeanor case). Kellner was indicted a year after Lebovits’ conviction and charged with having attempted to use emissaries to extort the Lebovits family and paying the witness who dropped out of the case to fabricate his charges against Lebovits. Virtually all of the evidence against Kellner was brought to the district attorney by Lebovits family members and supporters.
In a series of articles over the past year, The Jewish Week has highlighted the numerous weaknesses in the district attorney’s case against Kellner, including credible evidence that Kellner was framed in order to cast doubt on Lebovits’ conviction. Kellner’s trial, which was postponed several times by the district attorney in what Kellner’s lawyers have characterized as a strategy to delay the case past the general election for district attorney, was set to be dropped by prosecutors this week.
However, in a move that shocked seasoned lawyers, the veteran trial prosecutors recommending the dismissal were overruled by their controversial boss, Michael Vecchione, and then demoted.
Sources familiar with the situation have told The Jewish Week that there have been disputes going back at least to July between Vecchione and the trial prosecutors related to the trial prosecutors’ insistence that exculpatory information (known as Brady material) be given to Kellner’s attorney’s, over Vecchione’s objections.
Last week, despite Hynes spokesman Jerry Schmetterer’s comments that Vecchione still believes there is a case against Kellner, the district attorney sought and was granted a postponement of his trial until the first week of January, after Thompson takes office. At the hearing, lawyers for Kellner revealed that a police-supervised recording of Lebovits making incriminating statements to one of his alleged victims appears to have “gone missing” from the district attorney’s office.
According to the letter from anti-abuse advocates to the judge, the victim who would testify against Lebovits at trial has already entered into a civil settlement with him, prompting concerns from them that the settlement may constitute witness tampering.