The New Jersey Attorney General’s Office of Public Integrity and Accountability and three top lawyers face possible sanctions following allegations of prosecutorial misconduct against embattled Deputy Attorney General John Nicodemo.
Michael Falkowski, indicted earlier this year on charges of using his position as a remote contract administrator for an Atlantic County charter school to award a furniture contract to a board member, alleges that Nicodemo presented “explicitly false testimony to the grand jury. He’s seeking a dismissal.
Now his attorney, William J. Hughes, Jr., a former federal prosecutor, wants Superior Court Judge Donna Taylor to impose financial penalties on the OPIA, its director, Thomas Eicher, deputy director Peter W. Lee, and Max Lesser, a deputy attorney general who took over for Nicodemo as the lead prosecutor.
“A wrongfully procured criminal indictment of an innocent person is devastating in and of itself, but when that indictment is achieved through trickery and false testimony, the integrity of the courts and our system of justice is threatened,” Hughes stated in a court filing on Monday. “Under normal circumstances, a citizen would present these facts to the Attorney General’s Office of Public Integrity and Accountability for investigation and prosecution. The problem here is that this is the very office which committed these acts.”
In a letter to the OPIA last November, Hughes said the indictment “was obtained through flagrant misrepresentations of law and fact, the eliciting of false testimony, and the withholding of clearly exculpatory material before the grand jury.”
“A highly relevant and exculpatory section of the statute was excised from the document, which, if presented to the grand jury, would have dispositively established no criminal act was committed by Michael Falkowski,” he wrote.
In his court filing, Hughes called the indictment against Falkowski “frivolous and presented in bad faith.
“The indictment was presented and advocated for an improper purpose in that it is the product of multiple intentional misrepresentations, as well as a failure to present clearly exculpatory evidence to the grand jury,” Hughes stated in his filing. “OPIA doctored the applicable law that was presented to the grand jury, presented falsified testimony, failed to present clearly exculpatory evidence, and then sat on their collective hands when confronted with proof of this illegal conduct.”
Hughes claims Nicodemo “intentionally and purposely edited and presented a document and testimony to the grand jury concealing a key section of the applicable statute.” He alleges that Nicodemo “elicited explicitly false testimony from a State Police detective before the grand jury – in response to a grand juror’s specific question.”
In his filing, Hughes said court rule 1:4-8 provides Falkowski with “a voice and the power to hold malfeasant and nonfeasant prosecutors accountable. “
Eicher, Lee, and Lesser are the names listed in court records, and Hughes says they are the officials who should be held accountable; all three could be personally liable under a New Jersey court rule. Nicodemo is no longer a line prosecutor and now holds an administrative post handling diversity issues.
Following Hughes’ letter, the attorney general’s office had 28 days as a safe harbor to take action to remedy the grievance by dismissing the indictment. They responded on December 26, which was Day 28.
“The state does not agree with the assertions, Eicher said in a letter to Hughes, included in the court filing. “You also requested to speak with me directly regarding this case. In light of the foregoing, and after consideration, I decline your request. If your client wishes to consider the State’s plea offer, our office is open to discussion. Please direct any future communications on this matter to DAG Lesser and DAG Lee.”
Five attorneys in separate matters – all former state and federal prosecutors – have made claims of prosecutorial misconduct against the beleaguered Nicodemo, a 61-year-old former actor who has practiced law for eleven years.
Last year, Superior Court Judge John Paone found 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 Osher Eisemann, a prominent Lakewood Rabbi. As a result of Nicodemo’s Brady violation, Paone has ordered a new trial.