Embattled Deputy Attorney General John Nicodemo now faces even more allegations of prosecutorial misconduct, this time in a separate case where he’s accused of withholding evidence from a defense attorney in an itsy-bitsy corruption sting operation now in its fifth year.
Attorney Leo Hurley, Jr. alleges that Nicodemo withheld key documents in the state’s prosecution of former Assemblyman Jason O’Donnell (D-Bayonne), potentially the latest in a series of Brady violations committed by Nicodemo.
“Perhaps most troubling is the obvious: the state possessed an unsigned investigative report penned by its lead investigator in this matter since January 2020 and which has not previously been turned over,” Hurley said in a letter to Superior Court Judge Mitzi Galis-Menendez filed with the court yesterday.
Among the issues is a handwritten but unsigned investigative report from Kristin Maier, a detective for the state Division of Criminal Justice assigned to the Office of Public Integrity and Accountability; Maier had been the handler for the state’s cooperating witness, disgraced tax appeal attorney Matthew O’Donnell. He is not related to Jason O’Donnell.
“The Maier notes were not notes at all, but rather, an investigative report drafted by Detective Maier that, by admission of the state, was not signed by either Detective Maier or her supervisor,” Hurley said. He insists that the Maier notes did not accompany a 2020 email sent by the Nicodemo.
Hurley claims Nicodemo presented documents for a court-ordered in-camera review in April 2021, but never notified him and failed to provide the required privilege log.
“What would be the need to list the Maier notes on a purported privilege log if they were previously turned over to the defendant, as alleged incorrectly by the state?” Hurley asked in his letter to the judge. “And how many other unsigned investigative reports or unsigned investigative reports remain in the files of the state, however many there may be, that have not yet been turned over.”
Despite Galis-Menendez’s order on Tuesday that Deputy Attorney General Lisa Queen, now the third lead prosecutor in this case, immediately turn over all correspondence and communications between Maier and Lt. Michale Fallon reference in an April 2018 investigative report, Hurley said in his letter that he had received nothing from the state.
In court, Galis-Menendez ripped the attorney general’s office for the confusing way they’ve handled discovery.
“The state gave me a document dump that’s insignificant to me. “I have these disks, but I don’t know what I’m looking at,” the judge told Queen. “But then this is what I’m doing that I should not be doing. I’m going through this brief. Then I have to look at the documents. Oh, is this in there and there? Why am I doing this? I should have an itemization, so to know what I’m looking at. And then it’s easier to say yes, this, this, not this, this, this, not this.”
The Office of Public Integrity and Accountability today confirmed that Maier is no longer assigned to that bureau and has been returned to the Division of Criminal Justice. Nicodemo is no longer working as a line prosecutor and is now in an administrative post dealing with internal diversity issues for the Division of Criminal Justice.
Allegations of misconduct
In court this week, Hurley pointed to a text message involving Maier on April 18, 2018, about authorizing O’Donnell to wear a wire.
“Matt O’Donnell, the cooperating witness, sent a text message to Kristen Mayer, said, ‘I am meeting with Bayonne tonight.’ She responded, ‘I will pass this information along to someone, and they will get back to you.’ That is at roughly noon time. She indicates in her handwritten notes that she reached out to a lieutenant,” said Hurley. “I want those communications.”
“Why do I want them? Because purportedly at 4 PM on that date, a deputy attorney general named Anthony Picione signed a consensual intercept authorization. I’ve been told by the state that there are literally no written communications between anyone at the state, investigative or otherwise, and Anthony Picione that leads to this authorization being signed.”
Picione is the deputy director of the Office of Public Integrity and Accountability,
“Think about this. You have a required form and a required sign-off by the Attorney General or their designee to allow for someone to conduct a consensual intercept. Do you mean to tell me that for nine different occasions, there’s not a single shred of paper that exists? If Your Honor had to sign a search warrant, which is the other aspect of the Wiretap Act, there’s a paper trail so you know exactly what the person who authorized it in the case of a wiretap a judge was relying upon when they signed it. Now, I’m being told there’s no paper that goes to any of the DAGs who signed these consensual intercepts, one, and two, you’re not allowed to have the other communication that may exist that leads to the first consensual intercept,” Hurley said. “It’s preposterous.”
Hurley is also seeking billing records from O’Donnell and his firm, O’Donnell McCord. The state has acknowledged that O’Donnell continued his criminal conduct after he became a cooperating witness.”
Earlier this week, Nicodemo faced a third allegation of deliberately withholding evidence from a grand jury while seeking an indictment of a prominent Lakewood Rabbi. His attorney, Leo Vartan, a former Assistant U.S. Attorney, stated that there is “clear evidence that the state intentionally withheld exculpatory information from the defense.”
In two prosecutions involving charter school officials, attorneys have also alleged that Nicodemo misrepresented statutes and lied to a grand jury.
Vincent Sarubbi, who served as Camden County Prosecutor under three governors, claims that Nicodemo “overtly misrepresented” a statute to indict Peter Caporilli, the founder of a charter school.
The accusations against Nicodemo mirror those made last week by William J. Hughes, Jr., a former Assistant U.S. Attorney representing Caporilli’s co-defendant, Michael Falkowski.
Hurley, a partner at Connell Foley, is a former Assistant Hudson County Prosecutor.