First published in the New Haven Independent.
One of the men accusing prominent New Haven Rabbi Daniel Greer of sexually abusing him told his story in harrowing detail — on video. Should the public get to watch it?
And is watching the deposition video different from reading the text version?
Those questions came during a hearing before a federal judge Thursday in U.S. District Court in Hartford.
The hearing, raising fresh First and Fourth Amendment questions, was the latest twist in Rabbi Greer’s ongoing court battles over allegations that he sexually assaulted multiple students at the Yeshiva of New Haven on Elm Street more than a decade ago.
A jury last May ordered Rabbi Greer to pay $21 million in damages to a former student who described repeated sexual abuse after a civil trial in U.S. District Court in Hartford. A second Greer accuser, Avi Hack, was subpoenaed to testify in that case. He dodged the subpoena and didn’t show up in Hartford to testify. However, he agreed to give a deposition, and the deposition was videotaped. In it, he described years of alleged abuse at the hand of Greer, his family friend, teacher and principal, and eventually his boss.
Jurors watched the video in court during the trial. Yet only the written transcript was published in the court record.
Blogger Lawrence Dressler, outside U.S. District Court in Hartford.
Two weeks ago, a local blogger asked the court to turn over a copy of the full video, which he said he plans to publish online. In the process, he touched off a debate about what details from childhood sexual abuse cases should be made public and what’s better left private — and what form of court testimony should be released to the public.
On Thursday afternoon, back in U.S. District Court, four lawyers presented their interpretation of the thorny conflict between the press’s First Amendment right to access judicial proceedings and the victim’s Fourth Amendment right to privacy.
In his initial letter to Judge Michael Shea, the blogger, Lawrence Dressler, pushed for full transparency, citing the well-established precedent that whatever jurors see in an open courtroom should also be available after the trial ends.
Both the victim and Rabbi Greer protested that there is something fundamentally different about a video. Greer argued the release might be so devastating as to tip the jury in an upcoming criminal trial against him in state court. The victim said the violation of his privacy might be so invasive as to deter other accusers from coming forward.
After hearing the arguments, Judge Shea held off from issuing a ruling in order to give the parties one more chance to submit briefs. He also noted irony in this case.
If the victim had simply taken the witness stand, Shea pointed out, he could have given answers in a courtroom where all recording devices are banned. Jurors never would have seen a video, and journalists or bloggers would have little standing to ask for it.
But by skipping out, the victim, in effect, made the situation worse for himself, Shea explained, as the only version of his testimony is a digital copy that could be easily uploaded to YouTube, rather than a reporter’s write-up.
In the 218-page transcript of his deposition, which the Independent published in April 2017, Aviad “Avi” Hack described an alleged 13-year sexual relationship with Greer that started when he was a student at the Yeshiva of New Haven, a Jewish day school Hack’s parents helped Greer found at the corner of Norton and Elm Streets.
(We published the deposition in the belief that it served the public interest in three ways: It added to the public’s understanding of the case with crucial corroborating facts by a second alleged victim. It offered specific descriptions of actions that help the public understand what allegedly occurred in a way that vague phrases like “alleged abuse” fail to do and in fact can excuse the crime or downplay the crime’s severity. And it exposed how psychological manipulation can more broadly aid adults in allegedly raping or otherwise abusing minors.)
In the deposition, Hack described sexual encounters from around 1991 until 2004, occurring in apartments owned by Greer’s not-for-profit groups, in the basement of his Orange Street law office, in Edgewood Park, and in hotels in Missouri and Massachusetts. Hack spoke of consenting to weekly trysts that he was able to “avoid” only on holy days, but he said he feared what would happen if he stopped.
“I had tremendous respect, reverence, awe, for Rabbi Greer. I felt that he was superlative in every way. He was confident, he was knowledgeable. He was a religious guidepost,” Hack testified under oath. He added that he didn’t want to “destroy what [his] father has been working on.”
Hack went on to become a rabbi and administrator at the yeshiva. Alongside the rabbi, he was initially named in the civil suit filed by another former student at the school, Eliyahu Mirlis, who accused Greer of repeatedly sexually abusing him for three years and the yeshiva of failing to stop the molestation. After Hack flipped sides and agreed to testify for Mirlis, backing up the claims, he was removed as a defendant.
But as the trial approached, Hack hid from a process server, who said that Hack’s “great lengths” to evade service were an anomaly in his three decades of handing out subpoenas. Hack once ran out of his classroom, down a hallway and through the back door of the school to avoid being served. Then he called in sick for two weeks straight, holing up at home.
Because Hack failed to appear, jurors could only watch the pre-trial recording of his deposition.
Dressler said he hoped to share that video on his site, because it contributed to such an important issue in the Jewish community, recalling recent sexual abuse scandals in the Catholic Church. “If the video was posted on the Internet, I think it would serve a public purpose. I know when I posted the transcript, people were calling me, mostly from New York, who wanted to talk about this case,” he said. “I think the public is served by seeing what actually goes on at a trial and the purpose of a courthouse.”
David Grudberg, Greer’s attorney, argued that Dressler’s motives weren’t so high-minded. “He has written, at length, about his desire to see Mr. Greer in jail,” he said. “If the videotape didn’t make a difference, he wouldn’t be here,” Grudberg went on. “He thinks it will further prejudice Daniel Greer.”
Judge Shea said that line of argument was irrelevant, because a person’s motivation for obtaining a record has no bearing on whether it’s public or not.
Echoes Of “Fat Tony”
According to Judge Shea, the circumstances most closely resembled the 1987 mob trial of Anthony “Fat Tony” Salerno, “the rough-talking, cigar-chomping boss of the Genovese crime family who rose from running numbers in East Harlem to rigging construction bids on Manhattan skyscrapers,” as The New York Times wrote in his obituary.
In the Salerno case, Roy L. Williams, the former president of the International Brotherhood of Teamsters, was too sick to appear in court. Instead, his testimony, videotaped in a prison hospital where he was locked up on unrelated charges, was played for jurors.
After the trial, CBS asked for a copy of the tape to broadcast on air. Williams objected that that would violate his privacy. A district court judge agreed with Williams, but a three-panel appellate court overturned her ruling.
In an opinion written by Ralph K. Winter, who’s still a senior judge on the Second Circuit, the judges cited their past willingness to release to the press videos that had been shown at trial. For instance, they’d let NBC get a copy of videos taken in the Abscam case, in which undercover FBI agents posed as shieks to solicit bribes from Congressmen.
As prior judges had argued, why could something seen by those at the trial be hidden from people who weren’t there?
“Once the evidence has become known to members of the public, including representatives of the press, through their attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance at the courtroom to see and hear the evidence, when it is in a form that readily permits sight and sound reproduction,” a judge wrote in a 1980 ruling that Winter cited.
Hack’s case is slightly different, though, because of the comparatively stronger privacy interests that an innocent victim of sexual assault has to a sick man in prison, it was argued. He might be “an innocent bystander subject to public embarrassment solely because of the acts of others,” as Winter said could be an exception — unlike Williams, whose circumstances were “solely the result of his [own] criminal acts.”
Matthew Popilowski, Hack’s attorney, claimed that releasing the video would dissuade other victims from testifying about their childhood sexual abuse.
But Judge Shea didn’t seem to buy it. As he noted, Hack hadn’t made an issue of his privacy until the video had been requested. During the civil trial, he hadn’t asked for a pseudonym or requested that the video be sealed. With news reports already written, the judge seemed to suggest Hack had already given up much of his privacy.
“I understand, from a human standpoint, why your client didn’t want to come to court,” Shea said. “But this was entirely avoidant. Mr. Hack could have submitted to a video deposition in New Haven, accepted the subpoena to testify in court, and very likely, the video would never be released by me.”
Running into trouble persuading the judge, Popilowski tried to undercut the notion that federal courts are truly open to the general public, throwing the whole presumption of judicial access into question.
“It’s ironic that the courts talk about public access and releasing something played at trial, and yet we don’t have cameras in courtrooms,” he said. “We want the public to be able to get everything on file and yet we won’t show the proceedings on TV.”
“There’s a lot of policy problems in this country. I can only do so much. I can’t snap my fingers and order the case be filmed,” Shea replied, clearly annoyed. “You’re commentary is appreciated, but irrelevant.”
Seeing The Facial Strain
Aside from those privacy rights, much of the legal wrangling on Thursday came down to whether a fundamental difference exists between the video that the blogger wanted and the transcript that had already been released.
Dressler argued that there is little material difference between word and image. Greer’s and Hack’s lawyers, on the other hand, said the video, unlike the printed word, would do enormous damage to their clients.
On the video jurors watched at trial and then requested to review a second time during deliberations, they saw the clear strain in Hack’s face as he answered. Under interrogation by Greer’s attorneys, he held back anger at the repeated questioning about when exactly the abuse began.
That resentment does not emerge in the written transcript, where dashes represent interruptions; ellipses, hesitations; and exclamation points, outbursts of emotion.
Judge Winter, in his ruling in the 1987 mob case, had pointed out this difference in analyzing why CBS should get a copy of Williams’s testimony.
“Because the videotape may in fact be more accurate evidence than a transcript, moreover, its availability to the media may enhance the accurate reporting of trials,” he wrote. “Transcripts lack a tone of voice, frequently misreport words and often contain distorting ambiguities as to where sentences begin and end. Videotaped depositions thus convey the meaning of testimony more accurately and preserve demeanor evidence as well.”
Even if Judge Shea agrees with Winter, however, there’s still the issue of actually producing a copy of the video. The courts don’t keep a copy; instead, it’s with Antonio Ponvert, Mirlis’s lawyer. The attorney said it would cost roughly 12 hours of his assistant’s time to make a copy for Dressler.
“Can CBS pay for that?” Dressler jokingly asked the judge.
He said later he’d try to get a discount from Ponvert, but that he is willing to pay up for the video.