Embattled Deputy Attorney General John Nicodemo faces new allegations of prosecutorial misconduct in an explosive court filing claiming that he purposely edited out portions of a statute during his grand jury presentment seeking the indictment of a charter school business administrator in Atlantic County.
Nicodemo, who faces claims of additional ethics violations in other state prosecutions, is alleged to have presented “explicitly false testimony to the grand jury” and deliberately hiding exculpatory evidence from them before indicting Michael Falkowski, a contract consultant who worked remotely, for awarding a $115,000 furniture contract to the founder of the Principle Academy Charter School.
“It is irrefutable that the Office of the Attorney General intentionally misled the grand jury as to both the applicable law and the facts, resulting in a manifest injustice,” wrote Falkowski’s attorney, William J. Hughes, Jr., in his brief. “The only cure for the state’s demonstrable misconduct is dismissal (of the indictment).”
The indictment alleged that a charter school founder, Peter Caporilli, owned a company that received contracts to construct an outdoor learning center. Falkowski and Caporilli broke portions of the project into separate pieces to skirt public bidding requirements. The investigation was presented to the grand jury over a seventeen-month period between August 2021 and January 2023.
Hughes claims that Nicodemo “intentionally omitted from the grand jury” parts of the School Ethics Act that permits a charter school board member to be the recipient of a contract as long as they recuse themselves and receive no special benefits.
“Selectively editing highly relevant, applicable, and exculpatory provisions of the law for the grand jury was compounded by the deputy attorney general eliciting patently untrue testimony,” he said.
Falkowski claims to have contacted Thomas C. Martin, a manager in the investigations unit of the New Jersey Department of Education Office of Fiscal Accountability and Compliance, to confirm the legality of awarding a bid to Caporilli’s company. Copies of emails between Falkowski and Martin are included in the court filings.
Also implicated in the alleged misconduct by Nicodemo is Caitlin Brennan, a New Jersey State Police detective sergeant and the state’s grand jury witness.
Grand jury transcripts show that Nicodemo asked Brenan to read the elements of the conflicts of interest statute to the grand jury. She omitted certain sections of the statute.
“Is that the whole thing that you read?” Nicodemo asked. She said it was.
In one instance, a grand juror asked, “Is there any evidence from anything that you procured through this investigation the reason why Peter Caporilli abstained from the vote on the board meetings of September 28th, 2018, and November 16th, 2018?”
“No,” Brennan answered.
But that appears to directly contradict a witness interview with William H. Foster III that Nicodemo and Brennan participated in and a document that was not shared with the grand jury. Foster, who works for Caporilli’s furniture manufacturing company, pointed to a letter in the bid package indicating that Caporelli was both the bidder and a charter school board member.
Hughes referred to it as “the state’s knowledge of falsity.”
An investigative report reflects that Foster, under oath, told Nicodemo that the disclosure of Caporilli’s was “to be above board and really it was showing like transparency as well.”
In another interview, State Police Detective Jay Sherby testified that Foster didn’t remember signing the bid proposal. But that didn’t come up when Nicodemo questioned Foster before the grand jury.
Hughes alleges that “uncontestable facts establish three improper and highly prejudicial deceptive acts taken by the state before the grand jury.”
By omission, he said, Nicodemo “presented to the grand jury an overt misstatement of law that undoubtedly misled the grand jury when applying the law to the facts presented to it.”
Hughes also claims Nicodemo “presented false facts to the grand jury” when maintaining there was no evidence about why Caporilli abstained on awarding a contract to his own company, and Foster had no knowledge of the bidding process.
The filing stated, “the actual facts obtained by the state under oath demonstrate that there was evidence” about Caporilli’s abstention and Foster’s testimony to state investigators.
“What then did the State do in its presentation of this central fact to the Grand Jury?” Hughes asked. “It buried the legal significance of this upfront disclosure by the bidding contractor through deception and false testimony.”
Documents show that the evidence was in Nicodemo’s possession since it was stamped and provided to Falkowski during discovery.
Hughes also suggests that Nicodemo “failed to present to the grand jury plainly relevant exculpatory evidence establishing that Mr. Falkowski contacted and communicated directly with the appropriate State authority to confirm that the bidding process being followed complied with applicable law even though the only bidder was the board president.”
Nicodemo’s alleged misconduct in the grand jury presentment necessitates a dismissal of the indictment, Hughes stated in his court filing. He accused Nicodemo of intentionally deceiving and misleading the grand jury on the specifics of the School Ethics Act and the circumstances of Caporilli’s disclosure of his ownership of the furniture company to trustees.
“Obviously known to Deputy Attorney General Nicodemo, but just as obviously unknown to the grand jurors because of the state’s intentional editing of (statutes) is glaringly missing from the state’s articulation of applicable law to the grand jurors,” Hughes noted.
He added, “Nicodemo’s selective editing of highly relevant, applicable, and exculpatory law is made worse by the fact that the state sought, and received, the school’s charter agreement with the State of New Jersey, which was prepared by the New Jersey Department of Education.”
According to Hughes, Nicodemo’s failure to disclose the law and the charter agreement permits public officials from bidding on contracts “fatally taints the grand jury proceeding,” and the state deceived the grand jury by not advising them on school contracting laws.
“The improper presentation of applicable law to the grand jury alone constitutes gross prosecutorial misconduct that mandates – at the very least – dismissal of (the indictment),” Hughes said in his arguments. “This level of obfuscation further demonstrates the misconduct by the State, misconduct that deliberately misled the grand jury and impermissibly infringed upon the grand jury’s decision-making function.”
He believes that Nicodemo “impermissibly withheld from the grand jury clearly exculpatory evidence which was in its possession and that demonstrated Mr. Falkowski did not engage in any criminal conduct.”
Additionally, Hughes alleges that the state failed to present evidence of Falkowski’s criminal conduct to the grand jury.
The attorney general’s office announced the indictment on March 2. By then, Nicodemo had been moved out of the public integrity unit and into an ambiguous administrative role.
“The state’s failure to present what can only be described as compelling exculpatory evidence at grand jury is palpably an abuse of process,” Hughes wrote in his brief. “However, it is no coincidence that the exculpatory evidence present here was left out given the Office of Public Integrity and Deputy Attorney General Nicodemo’s history of Brady violations before the grand jury and at trial.”
Hughes declined to comment beyond what was in his court filing.
Nicodemo did not return two messages left on his cell phone today and did not respond to a text message.
The attorney general’s office said that the will look at complaint against Nicodemo.
“Any allegation of misconduct on the part of an employee of the Department of Law and Public Safety is thoroughly reviewed,” a spokesperson said.
Nicodemo’s history of alleged ethical lapses
In 2022, Superior Court Judge Joseph Paone determined that Nicodemo intentionally withheld crucial evidence and disregarded a court rule requiring prosecutors to disclose important information in the government’s possession to the defendant’s lawyers in his prosecution of a prominent Lakewood Rabbi, Osher Eisemann.
Eisemann was convicted in 2019, but Paone found Nicodemo knew that there was evidence that could exonerate Eisemann more than a year before the trial, but chose to keep that secret, court records show. Paone has ordered a new trial – his findings were upheld by the Appellate Court and the New Jersey Supreme Court – and Eisenmann’s attorney, alleging prosecutorial misconduct by Nicodemo, has moved to dismiss the indictment.
In an April 2021 court hearing where Nicodemo sought to seal a list of potential targets in a state corruption probe involving cooperating witness Matthew O’Donnell, an attorney representing a former assemblyman facing bribery charges requested a certification from the attorney general’s office that all evidence had been turned over.
But the judge, Mitzi Galis-Menendez, decided she would accept Nicodemo’s word and not require any certification.
In that case, the judge acknowledged that the attorney general’s office made a mistake in court filings that disclosed the names of the potential targets. The attorney general’s office filed the motion to seal records two days after the New Jersey Globe sought copies of public court filings.
An attorney representing Holmdel in a civil lawsuit against O’Donnell accused Nicodemo of communicating about the case directly to a Superior Court judge without notifying him.
Nicodemo made an unusual end-run around court procedure by sending a letter to Judge Linda Grasso Jones by mail rather than electronically filing it. Because Nicodemo didn’t follow the procedure, the court staff uploaded it themselves three weeks later, a spokesman later told the New Jersey Globe.
In 2022, an indictment of a Bergen County police chief was dismissed after a judge found that another beleaguered deputy attorney general assigned to Nicodemo’s unit, Eric Cohen, omitted key information from his presentment to the grand jury that indicted him. But the exoneration came nearly one year after the police chief, Robert Kugler, lost his bid for Bergen County sheriff.
Cohen is no longer with the attorney general’s office.
This story was updated on December 7 at 4:47 PM with comment from the attorney general’s office.
RELATED ARTICLES
-
July 18, 2022 -
-
