Prosecutor violated Brady rule by not turning over evidence, judge says

An assistant attorney general assigned to the Office of Public Integrity and Accountability withheld evidence in a high-profile lawsuit of a Lakewood educator in 2019, a Superior Court judge has ruled, forcing a new court case.

Inexplicably, the prosecutor charged with a violation of the Brady Rule, John Nicodemo, also argued the case against a motion for a new trial by Rabbi Osher Eisemann.

Eisemann, the founder of the School of Hidden Intelligence, was accused of embezzling more than $200,000 of school funds in a scheme to create the effect that he used personal funds to repay money he owed the school . He was convicted of second-degree money laundering and second-degree misconduct by a corporate official, after a four-week trial, but was acquitted on three other counts.

An attorney for Eisemann, Lee Vartan, has requested a new trial after discovering that Nicodemo and the state attorney general’s office sat on evidence they were required to provide to the defense, namely the lead audit that led to Rochel Janowski, the school’s former accountant.

Janowski certified that an entry she made in a QuickBooks ledger account “was never intended to clear a debt ‘owed by Eisemann,’ nor did it do so.” She said the particular ledger item was used when she didn’t know how to assign a transaction.

Vartan argued that Nicodemo and other prosecutors knew the entry was made by Janowski and was withheld from him, a violation of the Brady Rule which requires exculpatory evidence to be turned over.

“In the most literal sense, however, there is no doubt that if Janowski is believed by a jury, the verdict will be different,” Paone wrote. “He will do more than just contradict the evidence presented at trial; it touches on the central issue of the guilt of the accused and probably has the effect of exonerating the accused. »

Prosecutors argued they did not suppress the evidence because the QuickBooks data was produced before trial. But Paone determined that the entry was “just a line buried in a thumb drive presumably containing countless pages of journal entries, and which was the key to the state file.”

“Meticulously sifting through this jumble of information and predicting which entry the state intended to rely on would surely have required a Herculean effort,” Paone said in his decision. “Even if Janowski’s involvement was discoverable pre-trial diligence, his testimony, if believed, would completely exonerate (Eisemann).”

Paone criticized Nicodemo and the other prosecutors for Brady’s violation.

“The state clearly knew the source of the ledge entrance at issue in this case long before the trial, but the state chose not to call Janowski (as a witness),” Paone noted.

But Paone said there was “no evidence” that there was any intentional misconduct on the part of prosecutors to commit a Brady violation.

Yet Nicodemo has already faced challenges to its ethics.

In an April 2021 hearing in which Nicodemo sought to seal a list of potential targets in a state corruption investigation involving cooperating witness Matthew O’Donnell, an attorney representing a former Assemblyman facing corruption charges sought certification from the attorney general’s office that all evidence had been returned.

But the judge, Mitzi Galis-Menendez, decided she would take Nicodemo’s word and not demand any certification.

In that case, the judge acknowledged that the attorney general’s office erred in court documents that disclosed the names of potential targets. The attorney general’s office filed the motion to seal the records two days after the New Jersey Globe requested copies of the public court documents.

Earlier this year, an attorney representing Holmdel in a civil lawsuit against O’Donnell accused Nicodemo of reporting the case directly to a Superior Court judge without telling him.

Nicodemo uncharacteristically circumvented legal process by sending a letter to Judge Linda Grasso Jones by mail rather than filing it electronically. Because Nicodemo did not follow procedure, court staff uploaded it themselves three weeks later, a spokesperson told The New Jersey Globe.

It is unclear whether the attorney general’s office will launch an internal investigation into Nicodemo or other members of his prosecution team. A 2019 Directive to County Prosecutors compel politicians to comply with the US Supreme Court ruling in Brady v. Maryland, applies to Deputy Attorneys General. A Brady breach is considered a serious problem for prosecutors.

While a “Use of Force” Policy implemented by the Attorney General’s office in 2020 mandates presentations to grand juries on police officers whose use of force results in death, there is no similar requirement for prosecutors.

Steven Barnes, a spokesman for the attorney general’s office, said the state would appeal Paone’s decision.

This will no doubt prolong the legal process for Eisemann, who has been suspended by the special education school he has run since his indictment in 2018. He will also face legal costs for the appeal, and possibly a new trial. . Prosecutors have no actual financial burden to appeal, and Nicodemo has no personal liability for its mistakes.

The Lakewood Scoop first reported Paone’s decision.

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