Claiming a second Brady violation, attorney seeks to dismiss Lakewood Rabbi indictment

Alleging that state prosecutors deliberately committed a second Brady violation, attorneys representing Lakewood Rabbi Osher Eisemann are seeking a dismissal of a seven-year-old indictment.

Superior Court Judge Joseph Paone determined that embattled Deputy Attorney General John 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.

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.  Instead, Eisemann’s attorney claims, he ”misled the jury twice.”

Paone ordered a new trial.

In a brief filed earlier today, Eisemann’s lawyer, Lee Vartan, said the indictment should be dismissed “based on the State’s intentional decision to withhold material exculpatory evidence from the defense not once, but twice.”

Eisemann, the founder of the School for Hidden Intelligence, was accused of misappropriating over $200,00 in school funds as part of a scheme to create the effect that he used personal funds to repay funds he owed the school.

“The state committed a Brady violation in defending against a Brady violation,” Vartan said.  “No more evidence of intentionality is needed.”

Vartan alleged that the attorney general’s office was on track to commit a third Brady violation had the court not intervened and forced prosecutors to produce documents in their possession.

“The State’s response was to continue to hide it,” he said in his brief.

Today’s filing follows a ruling by the New Jersey Supreme Court last week that rejected the attorney general’s appeal of trial and appellate courts that prosecutors withheld evidence.

After the appellate court ruling, a judge forced the Office of Public Integrity and Accountability to turn over a missing document.

“That document makes clear that the State’s decision to withhold Exhibit F from the defense was ‘willful’ and ‘intentional,’” Vartan said.

Vartan sought a new trial after discovering Nicodemo and the state attorney general’s office sat on evidence they were required to provide to the defense, namely the audit trail that led to Rochel Janowski, the former school bookkeeper.

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

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

“In the most literal sense, however, there can be no doubt that if Janowski is believed by a jury,  the verdict will be different,” Paone wrote in his opinion.  “It goes does more that merely contradict the evidence adduced at trial; it goes to the central issue of defendant’s guilt and has the probable effect of exonerating the defendant.”

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

This is the lastest in a series of controversies surrounding Nicodemo and the Office of Public Integrity and Acccountibility.

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.

Nicodemo has faced challenges to his ethics before, leading two state senators to criticize him last year, alleging prosecutorial misconduct sharply.

Since his Brady violation, Nicodemo has been moved out of his role as a prosecutor – he is now working as a diversity officer, albeit at a higher salary – and Cohen departed the attorney general’s office last Friday.

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.

Nicodemo did not immediately respond to a text message to his cell phone seeking comment.