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Old 04-25-2005, 11:19 PM
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Default NYTimes:For a Successful U.S. Attorney, High-Profile Victories Call for a Low-Profile

April 25, 2005

For a Successful U.S. Attorney, High-Profile Victories Call for a Low-Profile Approach


Amid the media frenzy last year when Martha Stewart was convicted of lying about a stock sale, the top federal prosecutor in Manhattan made only a short statement: It said that the homemaking queen had been treated no differently than any other securities defendant. With other big convictions, the prosecutor, David N. Kelley, has said even less.

Since becoming the United States attorney for the Southern District of New York, Mr. Kelley has also won guilty verdicts against the Rigas family of Adelphia Communications, the former WorldCom chief Bernard J. Ebbers, and the defense lawyer Lynne F. Stewart - to name only the more celebrated cases.

Some of Mr. Kelley's predecessors have used that kind of success to vault to fame. Rudolph W. Giuliani, when he had the job for six years in the 1980's, never shied from touting his mob prosecutions. Mary Jo White made a name for herself with tough cases against corporate crooks and terrorists.

But Mr. Kelley likes a lower profile, choosing, as he puts it, to "let the verdict speak for itself."

"I'm not a politician," he said in a recent interview. He occasionally holds a news conference to announce a flashy indictment, like the corruption charges he filed this month in the United Nations oil-for-food scandal. But after a trial victory, Mr. Kelley said, it is unseemly to crow.

"We don't want to be seen pounding our chests," he said. "That's the wrong message to send about what we are doing."

Several former prosecutors said that Mr. Kelley's lower visibility was actually shrewd politics. Although he has been the United States attorney since December 2003, he was never nominated by President Bush or ratified by the Senate. He took was appointed to the job when the former top prosecutor, James B. Comey, went to Washington to become the deputy attorney general. He has been able to serve an unusually long interim tenure at one of the nation's largest United States attorney's offices, the Justice Department's flagship for securities and terrorism prosecutions.

Mr. Kelley, 45, is drawing attention now because the Bush administration is about to replace him. The White House has let it be known that President Bush plans to nominate Michael J. Garcia, the immigration and customs chief for the Department of Homeland Security, according to Senator Charles E. Schumer, a Democrat of New York, who has been monitoring the process.

According to Mr. Schumer and several justice officials, Mr. Kelley was not tapped to continue in his job because he is a registered Democrat. "The virtually universal view is that he's done an excellent job," Mr. Schumer said.

While Mr. Kelley may be little known on New York streets, he is widely respected in federal law enforcement circles, current and former prosecutors said.

Mr. Kelley started out in 1984 as a paralegal, while finishing his studies at New York Law School. At the same time he was working weekends as a police officer in East Hampton, the town where he went to high school.

Mr. Kelley says the time he put in quelling bar brawls and collaring burglars in the Hamptons helped him later in working with federal agents to build cases.

"He has a tremendous ability to work shoulder to shoulder with agents," said Ms. White, who was Mr. Kelley's boss.

"He is good with people, and very good with criminals and terrorists-and I mean that as a compliment," Mr. Comey said. "They know Dave is a guy who can't be played."

Mr. Kelley is among the country's most experienced terrorism prosecutors, part of a trio that includes Mr. Comey and Patrick J. Fitzgerald, now the United States attorney in Chicago. In 1995 Mr. Kelley and Mr. Fitzgerald became co-chiefs of a unit that Ms. White set up to handle organized crime and terrorism cases. Two years later Mr. Kelley was a prosecutor in the trial of Ramzi Yousef, convicted as the mastermind of the 1993 World Trade Center bombing.

Mr. Kelley assisted the prosecution that foiled a plot by Al Qaeda to bomb millennium celebrations in New York and Seattle. He traveled to Yemen in October 2000 to coax hostile authorities there to allow American agents to investigate the Qaeda bombing of the United States warship Cole.

On Sept. 11, 2001, he narrowly missed being buried by the collapsing south tower of the World Trade Center. As he and Ms. White recounted in separate interviews, moments after the first airplane struck, Ms. White dispatched Mr. Kelley and Barry W. Mawn, the top F.B.I. official in New York, to the site. Mr. Kelley and Mr. Mawn were setting up a command center and gathering body parts to be tested for DNA, when a battering blast of wind and debris sent Mr. Kelley racing for shelter.

Barely avoiding suffocation, Mr. Kelley made his way to a telephone to call Ms. White and report that he thought Mr. Mawn had not survived. Ms. White said she was n another line with Mr. Mawn, who had just told her that Mr. Kelley was dead.

The next day Mr. Kelley was in Washington, joining the task force that investigated the 9/11 attacks.

Not everyone admires the prosecutions that Mr. Kelley has pursued. Many lawyers accused him of casting a chill on the profession by trying Lynne Stewart, the New York lawyer, for her unorthodox defense of a terrorist client. But the jury sided with Mr. Kelley; in February, Ms. Stewart was convicted on charges of terrorist conspiracy.

Mr. Kelley concedes he is disappointed, although not surprised, that he will not be keeping his job. He is not making plans until he has finished his work in the Manhattan prosecutor's office, presumably when Mr. Garcia has been nominated by the president and ratified by the Senate. But he does not regret that he did not do more to advertise his trial triumphs.

"A conviction is a tragedy," he said. "It's a personal tragedy for the person convicted, and a greater tragedy for people who are victims of crime. We feel gratified when we do our job well and prevail. But that doesn't mean we're happy. It doesn't mean we should gloat."
"Human nature will only find itself when it finally realizes that to be human it has to cease to be beastly or brutal." (Mohandas Gandhi, In Search of the Supreme)
"I learned that familiar paths traced in the dusk of summer evenings may lead as well to prisons as to innocent, untroubled sleep." (Albert Camus, The Stranger)
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