The abduction earned Kelly a seven-year three-month sentence in federal prison for kidnapping. But this week, the U.S. Court of Appeals for the Fourth Circuit tossed out the conviction in a sharply worded opinion, saying that the prosecution, led by Assistant U.S. Attorney Larry Leiser, knowingly allowed Dobkowski to perjure herself on the witness stand and improperly withheld evidence useful to Kelly's defense.
The successful appeal makes Kelly eligible for a new trial. His lawyer, Frank Dunham Jr., hopes aloud that the government will drop the case on the "humanitarian" grounds that Kelly, a family man, has already served 17 months in prison. Leiser's boss, U.S. Attorney Helen Fahey, will decide whether to haul Kelly back to court. "Certainly, I'm going to recommend that we re-try," says Leiser.
Alleged perjurer Dobkowski was Leiser's star witness in the case against Kelly. Articulate and clean-cut, she stated truthfully that she'd earned a master's degree from Harvard and held a high-ranking job with the Environmental Protection Agency (EPA). Under cross-examination, she flatly denied belonging to the Circle of Friends and described the group's leader, George Jurcek, as merely a business acquaintance.
But Dobkowski was far from the bland bureaucrat she appeared to be. On Thursday, May 20, 1993 - only four days before Kelly's trial startedthe IRS raided her Capitol Hill town house, the Circle's Washington base. In applying for a search warrant, Treasury Department investigators presented an affidavit detailing the crimes they believed cult members had committed. That laundry list included conspiracy to commit fraud, mail fraud, and a crime called "structuring"breaking up large hunks of cash into deposits of less than $10,000 so that a bank won't report the transactions to the IRS as the law requires. (Dobkowski eventually pleased guilty to all charges except conspriacy, and is now serving a 21-month prison sentence; the other indicted cult members fled from the law.)
The day after the IRS raid, Prosecutor Leiser examined the eveidence seized and revealed to Kelly's defense team what he deemed relevant to the case. Not enough, ruled the court of appeal, which wrote that Leiser should have given Kelly's defenders the investigator's affidavit and a letter by Dobkowski. "In our view," the opinion stated, "the extremely damaging information contained in the affidavit leads to the incapable conclusion that a reasonable probability exists that the result of the trial would have been different had the Government disclosed the affidavit to Kelly."
The affidavit demolishes Dobkowski's credibility. Among other things, the investigators noted that she'd been on sick leave from her EPA job since the previous Augustthough she'd worked security-guard jobs during the same period. Even more important, the affidavit details her relationship to the cult and Jurcsek.
It's not the job of an appeals court to determine whether a government witness lied, but in the Dobkowski affair rhe three-judge panel writes, "Were we given this task, we would not hesitate to find that the record before this court demonstrates overwhelmingly that Dobkowski's testimony was false in numerous respects and that the Government should have at least known it was false."
The judges are especially critical of Leiser for not sharing with the Kelly defense a letter seized during the raid on Dobkowski's town house. Written by Dobkowski to Jurcsek, it reveals the ruses by which she made her EPA co-workers believe she was sick. At one point, she writes' "I really was quite tired from having faked being tired all morning."
"This evidence," says the opinion, "in combination with the evidence that Dobkowski had been on paid sick leave from the EPA for approximately nine months, and that during this period Dobkowski had been working in other capacities, would have permitted Kelly to argue that Dobkowski was not the respectable, Harvard-educated, high-ranking, federal employee presented by the Government, but was a malingerer who had defrauded not only her employer but the co-workers who donated their sick leave so that her pay could be extended."
The prosecution of deprogrammer Kelly is only the latest skirmish in a decades-long was between cults and their critics. What's unusual about this battle is that some of the anti-cult forces question the fairness of the prosecution.
Legal Times aired these charges in a September 1993 article, in which anti-cult activists and defense attorneys pilloried Leiser for his drive to prosecute cult deprogrammers. The Dobkowski case was Leiser's second prosecution of Kelly: the first came in 1992, when he charged Kelly of conspiring to kidnap Lewis du Pont Smith, a follower of Lyndon LaRouche. (Kelly was acquitted.)
"[Leiser] seems to have an agenda that is - oh, I'm not going to characterize it," says Breckenridge Willcox, a former U.S. attorney for Maryland who represents a Circle defector. Willcox then tries again: "He seems to have an agenda that a prosecutor shouldn't have."
In recent years, cult groups including the Church of Scientology have formed a united front against deprogrammers and critics. So when Scientology spokeswoman Sue Taylor appeared in the courtroom with Leiser during the Dobkowski trial, anti-cult forces cried foul, saying Leiser was aligning the government with cults. Leiser had repeatedly declined to parry accusations that he is sympathetic to cults.
The anti-cult complaint against Leiser must be viewed in the light of his success in extracting plea bargains from three members of the team that Galen Kelly had assembled in the Dobkowski case (see "Confessions of the Cult Snatchers," 8/5). Should the Government re-try Kelly, those confessions will bolster the prosecution's case.
Leiser's victory may be his last over deprogrammers. In late 1993, he was reassigned from the Eastern District of Virginia's General Crime Unit to its Narcotics Unit. Per standard operating procedure, he continues to work on cases- like Kelly's - that he prosecuted while in the General Crimes Unit.
Willcox doubts that Leiser will get another crack at Kelly. Should U.S. Attorney Fahey choose to take Kelly back to court, Willcox believes that she will appoint a new prosecutor, rather than allow Leiser to re-try the case. Given the appeals court's tough ruling, says Willcox, "I don't see how he could." Leiser states unequivocally that, though he no longer works the deprogramming beat, other federal prosecutors will continue to pursue such cases. "There are cases across the country where cult deprogrammers are being prosecuted," he says, "It's not because they're deprogrammers. It's because they're kidnappers. We prosecute all kidnappers."