On the Frontlines of Terror

Fireman-policeman-lawyer David Kelley strikes back at terrorists

Published in 2006 New York Metro Super Lawyers — July 2006

No New Yorker can forget where they were on September 11, 2001. David N. Kelley certainly can’t.
 
Minutes after the first plane hit the north tower, Mary Jo White, U.S. attorney for the Southern District of New York and Kelley’s boss at the time, sent him — along with Barry Mawn, head of the FBI unit in New York — to the site. “I ran the four blocks from the office down there and was met by police and fire officials,” he says. “There was a search-and-rescue going on. We were there when the second plane hit, and were covered with debris.”
 
Kelley brushed himself off and found Mawn. “We walked south, and on West Street I saw a leg on the ground clothed in Mideastern garb, and pointed it out to Barry, and we said someone should get it for DNA analysis,” he says. “But there were body parts all over. Then there was a big ball of fire — I thought it was a bomb — and huge chunks of debris rained down as the south tower fell. I dived behind a curb next to two cops. We were buried under the debris. Finally, I dug my way out, all cut up and completely black as though someone had dumped Xerox toner on me. I looked around for Barry as I made my way back to the office, and then I phoned Mary Jo and told her that Barry was dead. Meanwhile, on her other phone, Barry was telling her that I was dead.”
 
That night, FBI agents drove Kelley to Washington, D.C., and he became co-chair of the Justice Department’s investigation into 9/11, following hundreds of leads into who, why and how this terrible plot had been hatched and executed. One lead led to the man called “the 20th hijacker,” Zacarias Moussaoui, who would be the first suspect charged. Later, Kelley led the prosecution of John Walker Lindh, who was sentenced to 20 years for aiding the Taliban.
 
No one could have done a better job, say colleagues in the legal field. Thomas Kavaler, a partner with Kelley at Cahill Gordon & Reindel in Manhattan, calls him “enormously credible and persuasive — he radiates honesty.” And Patrick Fitzgerald, special counsel in the Valerie Plame investigation, who worked with Kelley from 1988 to 2001 and partnered with him on cases like the 1998 bombings in Kenya and Tanzania, says of Kelley, “He uses common-sense straight talk to get right to the key issues.”
 
As far back as he can remember, Kelley’s first aspirations were to be a cop — and a fireman,
too. Typical of the high-octane Kelley, he became both.
 
Kelley’s father was a postal worker, his mother a teacher, and he was the youngest in a family of eight children, growing up on eastern Long Island. “I got beat up a lot when I was young, until I got bigger than they were and they showed me some respect,” he says. His brother, Chris Kelley, a partner at Twomey, Latham, Shea, Kelley, Dubin, Reale & Quartararo in Suffolk County, remembers him as a late bloomer — a scrawny kid and no standout in school. “I was worried about him,” he says. “Then, it was as though a lightbulb suddenly went on: His grades shot up, and so did he. He followed me into the same college and law school.”
 
After graduating from The College of William & Mary, Kelley joined the police force (he’d already been a volunteer fireman in the early ’80s) in East Hampton, N.Y. Part of a small force policing a 75-square-mile area, he was generally the first and only cop to show up if mayhem broke out in a bar or a robbery was in progress. Even though he got kicked around a few times, he liked police work and followed what he calls its “natural progression” when he began to study law. He stayed a cop until he graduated from New York Law School in 1986. Two years later, he became an assistant prosecutor at the U.S. Attorney’s Office for the Southern District of New York, working on murder and racketeering cases involving Asian gangs and the five families of La Cosa Nostra.
 
In 1995, Kelley was named chief of the newly formed Organized Crime and Terrorism unit at the office. He remembers the day when two sets of parents sat on the couch in his office, crying. Each couple had lost a son, both innocent victims, killed viciously in separate incidents in an ongoing feud between two Mafia families in Westchester and the Bronx.
 
Dust had settled on the cases, and the parents were shedding tears of frustration. They’d waited years to find out what had happened to their sons; they wanted justice.
 
“I promised them we’d find out who did it,” Kelley says.
 
At least 15 people had witnessed the killing of 21-year-old Mercy College student Louis Balancio directly outside a bar in Yonkers, yet none would come forward to tell what had happened. The same law of the gang, “Don’t rat!” ruled on a summer night a year later when, walking across a schoolyard in the Bronx, 17-year-old Paul Cicero was accosted, stabbed in the abdomen and left to bleed to death.
 
But Kelley put the pressure on, threatening and interviewing gang members. Eventually, some members broke the code and gave evidence that led to the conviction of the son of a reputed Lucchese mobster, Anthony DiSimone, for the murder of Balancio. Kelley personally prosecuted John “Johnny Boy” Petrucelli, who had stabbed Cicero. Petrucelli received a life sentence, and two dozen gang members also went to jail for their part in the crimes.
 
For both sets of parents, justice prevailed. For Kelley, it meant “you’re able to go home at night, feeling gratified, knowing you did a good thing.”
 
New Yorkers had their first brush with terrorism in February 1993, when two men drove a van loaded with explosives into the underground garage of the World Trade Center, leaving six dead, 1,000 wounded and millions of dollars of property damage. No price could be put on the psychological damage, however, as “terrorism” became a familiar word in the headlines.
 
In 1995, Ramzi Yousef, the engineer of the World Trade Center bombing and the man FBI investigators considered one of the most dangerous terrorists in the world, was captured in Pakistan. Two years later, despite the difficulties of a case that rested largely on circumstantial evidence, Kelley successfully prosecuted Yousef.
 
Floyd Abrams, the renowned constitutional lawyer who is now a partner with Kelley at Cahill Gordon & Reindel, credits Kelley’s “powerful, yet common-sense manner, very effective in talking to juries and persuading them as well as judges of the validity of his position.”
 
When asked how he earned his reputation as “the litigator who never loses,” Kelley says simply, “I prepare extensively. It’s a very long process, but it’s important to be the most prepared person in the courtroom. I put in long hours — 12- to 14-hour days — and sometimes during a trial, I don’t go home. I just take a shower, change my clothes and go back to the courtroom.”
 
At the trial, Kelley said of Yousef, “He came into this country with a plan to blow people up,” and Kelley proceeded to prove this by laying out the evidence: fingerprints in the Jersey City, N.J., apartment where the bomb was made, telephone records, scorch marks and explosive chemical residues in the makeshift bomb factory.
 
Yousef’s accomplice, Eyad Ismail, claimed that he thought the boxes in the back of the van contained soap and shampoo. But in his summation, Kelley pointed out that Ismail’s fingerprints were also found in Yousef”s apartment, that he hadn’t just “picked up” the van but had registered it at a motel the night before the bombing, and that investigators had found that the storage locker where the van was loaded contained boxes labeled Danger — gunpowder. “The last I heard, that’s not an ingredient for shampoo,” Kelley told jurors and the judge, who sentenced both men and four others to 240 years each.
 
In putting Yousef away for good, Kelley effectively put away a mastermind. That became clearer later on, when information came to light that Yousef belonged to a group of militant Muslims who planned numerous terrorist acts to “punish” the United States, kill tens of thousands of people and shock America into curtailing aid to Israel.
 
In January 2002, James Comey, the new U.S. Attorney for the Southern District of New York, asked Kelley to be his deputy. The two had worked together as assistant attorneys. “It was a smart move on my part,” Comey says. “The man is a talented multitasker with an inhuman capacity for work. He never sleeps. He can keep more balls in the air than anyone I know.”
 
When Comey left in October to go to Washington, D.C. as deputy attorney general, Kelley replaced him. At the same time, he was named to serve on the President’s Corporate Fraud Task Force and the Attorney General’s Advisory Committee for White Collar Crime.
 
The crackdown on white-collar crime in New York featured a first: CEOs were seen on TV and in print taking the “perp” walk. They included Frank Quattrone, convicted of obstructing justice at Credit Suisse First Boston (and whose conviction was overturned on a technicality), Bernie Ebbers for his role at MCI and John Rigas, founder of Adelphia Communications Corp., for conspiracy, bank fraud and securities fraud.
 
Kelley supervised the prosecution of Martha Stewart. Crowds cheered for Stewart every day, and Kelley got a lot of hate mail. But it didn’t bother him, he says. “I respect their right to express themselves, but they should also respect our right to prosecute if a law is broken. We do it for the right reasons.”
 
The big names and personalities in the white-collar cases didn’t faze Kelley. “The most important asset in prosecuting a case is your own personality,” he says. “Some lawyers park their personality at the door, maybe influenced by something they saw on Law & Order. But you should use your personality to your advantage. I try to speak from the heart. And focus on the facts. Whether it’s the Rigas brothers, or Bernie Ebbers or Martha Stewart, once you get the juries focused on the facts, then who the person is becomes irrelevant.”
 
As U.S. Attorney, Kelley supervised 250 attorneys on civil and criminal cases. “We have the best and brightest young lawyers in the country,” he says, “and I’m proud of all their work.”
 
Lest anyone think Kelley is all work and no play, think again. The 6-foot-2-inch 46-year-old swims a couple of miles a day, plays golf, and enjoys fishing, white-water rafting and hang-gliding. Once a year, he goes on a long hike with his brothers and other friends, including Fitzgerald, who says, “Kelley is always in the lead.”
 
On Labor Day 2005, Kelley retired from public service. He and his wife, Nicole LaBarbera, deputy chief counsel of the criminal division in the U.S. Attorney’s office, traveled to Costa Rica. In December, he joined Cahill Gordon & Reindel in Manhattan as a senior litigating partner covering white-collar crime and securities fraud.
 
His office is only blocks away from Ground Zero, and 9/11 is never far from his thoughts. How does he think we’re doing in the fight against terrorism now?
 
“It’s hard to gauge how well we’re doing,” he says. “A lot of good work was done in the ’90s. Louis Freeh at the FBI opened up a lot of offices abroad, which is a great help when you fly into a country and need assistance. My office was at the point of the spear against terrorism, the only game in town then — and very effective, I think. We saved a lot of lives. Besides Yousef, we convicted Sheik Omar Abdel-Rahman and a dozen others. Among them there were plots that included killing the pope, and a ‘Day of Terror’ plot to blow up the bridges and tunnels between New York and New Jersey, as well as the FBI and U.N. buildings.”
 
He says fighting terrorism is a team effort. “We need aggressive intelligence, a military and diplomatic response, not solely a criminal justice response.” He looks toward the window. “Sometimes I wonder how many people are lying in bed, thinking up ways to hurt us. I’m thankful for the number of people who are lying in bed, thinking up ways to keep us safe.”

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