Sam Kellner's Attorney Responds to Forward Article

In the letter posted below, Niall MacGiollabhui responds to the Forward’s November 14, 2013 article, “Sam Kellner’s Tangled Hasidic Tale of Child Sex Abuse, Extortion and Faith; Is Alleged Shakedown Artist a Hero or Crook?” The article discussed controversies surrounding two separate, ongoing criminal prosecutions-one of Mr. Kellner and one of Baruch Lebovits. Mr. MacGiollabui represents Mr. Kellner.

I write this letter on behalf of my client, Sam Kellner, in response to the article that was published online on November 14, 2013 by the Forward headlined: “Sam Kellner’s Tangled Hasidic Tale of Child Sex Abuse, Extortion and Faith,” “Is Alleged Shakedown Artist a Hero or Crook?”

According to Mr. Berger, the author of the article, he looked deeply into the unraveling prosecution of Sam by the Brooklyn District Attorney’s office “largely at the urging of [Baruch] Lebovits’s family.” Baruch Lebovits is an alleged pedophile whose conviction in 2010 was overturned in 2012 on a technicality, and is facing retrial. His family claims that Sam tried to extort them after being told by his son that Lebovits molested him and after other victims came forward. The family also maintains that Lebovits is innocent of the many heinous accusations leveled against him by multiple victims. Offering this disclosure, however, does not excuse or mitigate what is disclosed: Mr. Berger put himself and your paper at the service of a notorious, longtime, alleged pedophile who, it seems, is desperately trying to avoid retrial and the justice his alleged evil deeds deserve.

Mr. Berger contacted me in early November, we spoke at length, and he provided me with a list of questions addressed to my client. Based on the form of the questions, which was accusatory, I told him it appeared his proposed article would adopt the prosecution perspective of Sam’s case. (Nonetheless, I continued, we were willing to answer any questions he wished to ask and provide him with any material he sought.) On the contrary, Mr. Berger assured me, the article would be a balanced one examining the merits or otherwise of the prosecutions against both Sam and Lebovits. He further proclaimed by email on November 8: “I have asked the hard questions of both sides. That’s what I do.” For anyone who reads Mr. Berger’s article, the sound to be heard is the Lebovits family laughing out loud.

I made a simple inquiry of Mr. Berger: have you found a single shred of credible evidence to support the accusation that Sam Kellner attempted to extort the Lebovits family by claiming he controlled two victims, other than his son – identified in the article as Y.R. and M.T., respectively – who reported being abused by Baruch Lebovits. (The other accusation, that Sam bribed M.T. to falsely testify, is generally accepted to have been thoroughly discredited). Ten questions were emailed to me for my client to answer. The first five related to a secret recording made by Meyer Lebovits, a son of Baruch Lebovits, of a conversation with Sam in May 2009, supposed to be the “smoking gun” in the case. I asked Mr. Berger why he used his own, at times inaccurate, characterizations of the tape’s content, rather than the content itself, as the basis of his questions. He sheepishly conceded that he did not really analyze the content of the tape, relied on a transcript given to him by the Lebovits family, and volunteered that I understood it a lot better than he did. To help Mr. Berger, I emailed him the transcript provided by the District Attorney’s office, which he hadn’t seen. By email on November 7, I stated to him: “[I]f what is alleged against Sam was true, you would expect him somewhere in the course of 161 pages [of the transcript] to say he “controls” YR and MT and that’s why a trial [of Baruch Lebovits] won’t happen. As you know, it’s nowhere to be found. Likewise, when he’s asked repeatedly what he wants by Meyer [Lebovits], you would expect him to demand money. Again, nowhere to be found. Either he’s the world’s worst extortionist or he’s innocent.” Mr. Berger, however, quickly lost interest in the tape (as shown by the single thoroughly bland paragraph in his article in which he refers to its content), once he realized it didn’t support his pernicious agenda.

Staying with the transcript of this tape, I found it odd that a reporter examining the merits or otherwise of the prosecution case against my client would not have seen such a basic document from the prosecution case file (as disclosed to the defense by the prosecutors), and, unlike every other reporter to whom I have spoken, express no interest in the rest of the file (which contains reams of exculpatory material). The more we spoke, the more it became apparent that Mr. Berger’s source material was confined almost exclusively to the material selectively spoon fed to him by the Lebovits family, along with reports he read from other journalists. Indeed, he admits in the article that the Lebovits “supporters were supplying me with much of the material.” It is beyond baffling that a reporter writing an article about a prosecution is wilfully ignorant about the contents of the prosecution case file, until one realizes that Mr. Berger has no interest in the evidence, or more particularly the lack thereof, in Sam’s case.

Indeed, the only so-called evidence against Sam is the Grand Jury testimony, if it were repeated at trial, of Meyer Lebovits (the son of the alleged pedophile), that Sam attempted to extort him. I suggested to Mr. Berger that, if asking the hard questions is what he does, he should contrast the content of this testimony with the content of the secret recording and question Meyer Lebovits about what I described in a recent court filing as blatant perjury. Did he ask that question? Of course not.

Mr. Berger’s lack of interest in examining the evidence or otherwise in the Kellner case is matched by his cluelessness with regard to the Lebovits case. He expresses doubts about the original conviction, “focused not on whether Lebovits sexually abused boys, but on whether Lebovits was denied a fair trial,” and claims that Sam is the principal reason for his doubts. (Does this mean he accepts that Lebovits is a pedophile, or that he doesn’t think it matters? Who knows.) He then states that the conviction was overturned because of the untimely disclosure by prosecutors of police notes detailing attempts by the sole witness called by Lebovits, Berel Ashkenazi, to pay off Y.R. – the victim who testified after M.T. was reportedly intimidated into dropping out of the prosecution – along with Sam’s counter-efforts to assure Y.R. that he would receive monetary compensation without having “to sign anything,” i.e. without agreeing to discontinue his co-operation with the prosecution. (Y.R. later reported being similarly advised by the Lebovits prosecutor that he was entitled to pursue a civil case separate from the criminal one – another detail from the case file in which Mr. Berger had no interest). It is unclear if Mr. Berger is suggesting that the reference to Sam in the notes is what caused the conviction to be overturned. If so, he did not read the appellate court decision. Nor did he read the transcripts of the Lebovits trial. If he did, he would have learned that Sam never featured, even though the Lebovits family by then possessed their so-called evidence of extortion, including the recording from May 2009. Why did Lebovits and his lawyers make a deliberate decision not to mention Sam at Lebovits’s trial if he is the principal reason to doubt Lebovits’s guilt, you would expect the intrepid reporter to ask in his article. Does Mr. Berger ask this question? Of course not.

Mr Berger’s task (given to him by the Lebovits family), his true purpose in writing the article, was not to examine the evidence in either case (non-existent for Sam, overwhelming for Lebovits), or to get closer to the truth. It was, instead, an entirely squalid one: low grade character assassination of Sam Kellner. Fuelled by resentment of what he calls the media narrative portraying Sam as a “wounded father simply trying to get justice for his abused son” who “faces financial ruin” as a result, Mr. Berger, the reporter who asks the hard questions of everyone because that’s what he does, sets out on his quest for the alternative narrative that no-one else but him could find. The inconvenient obstacle he faced in this quest is that there is no actual evidence of either extortion or bribery against Sam. Undaunted, Mr. Berger takes a different route; unable to present evidence, he throws mud. Why else would he think that legal judgments against Sam, all of which, bar one in 2007 for $5,743, date from 1990 to 2001, are relevant to events from 2008 onwards. The centerpiece of this attempt at character assassination by Mr. Berger is a number of recordings given to him by the patrons of his misguided and malignant quest, the Lebovits family.

The first of these recordings is supposed to contain a conversation between Sam and family members of a molester. Mr. Berger would only disclose to me two segments totaling approximately 30 seconds in length, out of a conversation supposed to be 80 minutes in length, after emailing a question to my client based supposedly on other (non-disclosed) portions of the tape. How, I asked, could he be expected to respond to such a question. Mr. Berger answered that he couldn’t provide the whole tape to me because the molester’s family didn’t want to be identified, a claim I told him was utter nonsense: first of all, he received the tape from the Lebovits family, and secondly, if Sam engaged in the supposed conversation on the tape, obviously he knows to whom he spoke. His other claim, in the article, that I would not comment upon the tape except in response to hearing the whole tape, is wholly dishonest; I told him that if he wouldn’t provide me with the whole tape, I would like to hear additional excerpts, to which he responded by email on November 7 as follows: “I’m working on those audio excerpts for you this morning with our digital producer.” However, he never sent any of them to me, even though two excerpts that are different to the two I was sent were published on your website. One of the reasons I wanted to hear more, if not all, of the recording is that my client is supposedly speaking in English even though other recordings of him speaking to members of his community are in Yiddish, a highly suspicious discrepancy. Also, as I discussed on November 6 with Mr. Berger, other recordings of my client speaking in English with seemingly identical background noise to the two excerpts I received are being investigated by the District Attorney’s office to determine if they are the result of an illegal listening device. You would think Mr. Berger would question why the Lebovits family did not provide this particular recording to the District Attorney’s office, who after all are prosecuting Sam, if the recording is in fact what they claim. Another discrepancy I pointed out to Mr. Berger is a supposed reference in one of the clips I received, repeated in the article, to ways the molester’s case could be thrown out completely, when the context of the recording is supposed to be that the molester has already pled guilty and is trying to avoid a custodial sentence. The only conversation my client recalls that comes even remotely close to the one described in Mr. Berger’s article was between Mrs. Vegh, the wife of Martin Vegh, who was standing on the street at the time, and Sam and two well-known advocates for abused children, who were sitting in his vehicle. Mrs. Vegh had approached them for help, on the basis that her husband was an innocent man being “railroaded” into a deal. If in fact that conversation forms part of your supposed recording, it has been grossly misrepresented. Furthermore, having spoken to Mrs. Vegh this week, the recording was without question illegally made and doctored.

Another recording Mr. Berger relies upon is one he claimed to me was made by a P.I., on behalf of the Lebovits family, of the P.I.’s conversation with a rabbi. Again Mr. Berger refused to provide me with the recording, claiming lack of permission (which, as I told him, could only be from the Lebovits family, to which he gave no answer). I find it disturbing that your newspaper is publishing a story written for an alleged pedophile on terms and conditions set by the alleged pedophile’s family.

The final recording is supposed to be of Simon Taub, who did attempt to extort the Lebovits family and was convicted in a case that is entirely unconnected to Sam. Again, Mr Berger would not provide me with the recording (I was only given transcripts made by the Lebovits family). He asked me for an explanation as to why Taub is being asked (according to the transcripts) why Sam did not appear for a contemplated handover of money and answering that Sam would appear on the next occasion. I provided Mr. Berger with a report from the District Attorney’s office (from the case file, needless to say he didn’t know about it) concerning the supposed recording, which refers to the fact that Rabbi Nuchem Rosenberg, an anti-abuse activist, publicized (at Sam’s urging) Taub’s extortion attempts, causing Taub to temporarily desist in his efforts. The report also indicates that Taub originally claimed that it was Sam’s son rather than his own that was abused (in this case by Meyer Lebovits). If so, I stated in an email, one would assume he would have been asked why Sam was not with him and come up with an excuse. Conveniently, there is no mention of the report in Mr. Berger’s article.

Mr. Berger concludes his article by describing himself being “filled with enormous sorrow for the vulnerable children whose welfare in this community is utterly ignored.” Somehow, in his sorrow, he ignores the actual vulnerable children right in front of him, especially M.T., in respect of whom Baruch Lebovits was indicted for horrific abuse including serial anal rape, and Y.R., the victim whose brave decision to testify led to the Lebovits conviction. (As for Sam’s son, in one of my emails from Mr. Berger, he revealed that he didn’t even know Lebovits was indicted in part for molesting him. Words fail me.)

With regard to M.T., the District Attorney’s office recently announced that it was investigating reports that M.T. was terrorized and intimidated by the Lebovits family and their supporters to the point of dropping out of the prosecution and that, later – when the same efforts directed at Y.R. proved unsuccessful, and Lebovits was convicted – manipulated into denying the abuse ever happened, and into falsely implicating Sam. All Mr. Berger has to say in relation to what, if true, is a truly sickening sequence of events is that the prosecutors in Sam’s case were “blindsided” in July 2013 to find out that M.T. was being financed by “Zalman Ashkenazi, a close friend of the Lebovits family.” In fact, as Mr. Berger would have learned had (yet again) he bothered himself even a little with the case file, the Ashkenazi connection was revealed to the prosecutors sometime before September 2012. While examining the file, he would also have seen ample evidence of M.T.’s persecution for reporting his serial rape by Lebovits, including the following account given by Y.R. about the actions of the Lebovits family: “They, they terrorized him. You have no idea what they did to him… [T]hey came to tell him that, ‘If you’re coming to court to testify against my father you’re going to be arrested for the cases in which you molested two children.’” Y.R. also stated that “they” paid for M.T.’s lawyer (who communicated his dropping out of the prosecution to the District Attorney) and promised him money, which he never got. One wonders at Mr. Berger’s callous lack of interest in M.T.’s plight, except when one remembers on whose behalf he wrote his article.

With regard to Y.R., Mr. Berger’s lack of interest is, if anything, even more shameful, considering that, in October 2011, he reported interviewing Y.R., and being told about a tape recording of a conversation arranged by the police with Lebovits, which, Mr. Berger reported, contained the following exchange: “I told him, ‘What should I do because the NYPD are questioning me about what’s happened,’” Y.R. said. “He [Lebovits] answered me, ‘Just tell them leykenen shteyn un beyn’” or deny completely.” According to the same report, a lawyer for Lebovits said he had never heard of such a recording. If Mr. Berger had the slightest interest in balance or seeking the truth about the Lebovits and Kellner cases or supporting victims such as Y.R., or indeed the slightest interest in being a real reporter, one would expect him to ask some very obvious questions: Why did Lebovits’s lawyer claim that this recording never existed? And, why was the tape – containing damning admissions – not introduced at Lebovits’s trial? Of course, such a line of inquiry would not exactly endear him to his patrons. Instead, Mr. Berger refers derisively to Y.R. as the “drug addict.” In fact, Y.R. is a hugely courageous young man who, despite a blatant scheme to buy his silence since the overturned conviction (again, nowhere mentioned by Mr. Berger, despite it being a matter of public record that a financial settlement was agreed with Y.R.), will hopefully show the same courage as before to testify at the retrial.

It is not as if Mr. Berger couldn’t think of questions to ask of the Lebovits family and lawyers (with whom he states he conducted numerous off-the-record interviews). By email on November 7, I suggested a number of questions he should ask, specifically: Did you ask Baruch Lebovits’s lawyers why their client was willing to plead guilty to abusing M.T. and Sam’s son (as Meyer Lebovits in the secret tape recording and the District Attorney’s office have confirmed), if he’s innocent? Or why he entered into a financial settlement with Y.R., if he’s innocent? Or what their explanation is for the clear admissions of guilt on the Y.R. / Lebovits recording, if he’s innocent? I concluded the email as follows: “As I said, I have no problem if you are approaching Sam’s case from the prosecution perspective. However, if your article is supposed to cast a critical eye over everyone and not just Sam - as you told me it was - and considering that you have been fed material by the Lebovits camp and agreed to its terms, I would expect that you’ve asked hard questions of Lebovits’s lawyers such as the above and been given answers accordingly. Otherwise, if you pardon my frankness, you’re just closing your eyes to the truth about [an alleged] serial rapist of children and carrying his water.” (This was the email to which the laughable response was sent, “I have asked the hard questions of both sides. That’s what I do.”)

Ultimately, however, my reason for writing this letter is not to point out that Mr. Berger is a lazy, shoddy, dishonest journalist. Nor that he is a cheerleader for an alleged pedophile. Although Mr. Berger pompously states that he does not want to be the reporter “who undermines the prosecution of a sexual abuser,” happily there is no such danger based on his article. No doubt, he was regarded by the Lebovits family as a useful idiot by which to advance their cause. Happily, they were only half-right. (Interestingly, Mr. Berger breathlessly reveals how he discovered that the well-known imposter “Sarah Levine” – her emails to me last August were comical in their transparency – is a daughter-in-law of Lebovits. For some reason, he is unable to make the connection that he was being manipulated by the entire Lebovits family.)

I am writing this letter because of my understanding that when a lazy, shoddy, dishonest journalist decides to push the agenda of an alleged serial pedophile in a newspaper such as the Forward by means of character assassination, there are editorial controls that operate to ensure that the target of the assassination attempt is given a fair opportunity to respond in advance of publication. It would seem a basic tenet of reputable journalism. Accordingly, I would be obliged to receive answers to the following questions: Why I was not given more than 30 seconds of the 80 minute recording (particularly when other excerpts were published online)? Why did the Forward comply with the instructions of the Lebovits family not to give me a copy of the P.I. / rabbi recording or the Taub recording? What was done by your paper to confirm that the 80 minute recording was not doctored in any way (apart from accepting the word of the Lebovits family and the “participants” in the recording)? Was it forensically examined by an independent expert? If not, will the Forward agree to an examination by a mutually agreed expert?

I would be obliged to receive answers to these questions as soon as possible. Be assured, if the contents of the 80 minute recording prove in any way to have been misrepresented, I will be seeing you in court. (I should also note the defamatory reference on your paper’s twitter feed to Sam as a “convicted extortionist.”) Furthermore, I expect that this response will be published online alongside Mr. Berger’s article, on the assumption that your paper is not afraid of open debate and as willing to be questioned itself as it is to question others. We have conducted Sam’s defense in broad daylight. I trust that your paper would be more comfortable there too, rather than lurking in the shadows with the Lebovits family.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect those of the Forward.

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