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

A deputy attorney general assigned to the Office of Public Integrity and Accountibility withheld evidence in a high-profile prosecution of a Lakewood educator in 2019, a Superior Court Judge has ruled, forcing a new trial to be held.

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

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 money he owed the school.  He was found guilty of second degree money laundering and second degree misconduct by a corporate official, after a four-week trial, but was acquitted on three other charges.

A lawyer for Eisemann, Lee 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.  “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.”

“To meticulously sift through this morass of information and predict the entry the state intended to rely on surely would have demanded a herculean effort,” Paone stated in his ruling.  “Even if Janowski’s involvement was discoverable diligence prior to trial, her testimony, if believed, would completely exonerate (Eisemann).”

Paone slammed Nicodemo and the other prosecutors for the Brady violation.

“The state clearly had known the source of the ledge entry 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 willful misconduct by prosecutors to commit a Brady violation.

Still, Nicodemo has faced challenges to his ethics before.

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.

Earlier this year, 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 told the New Jersey Globe.

It’s not clear if the attorney general’s office will launch an internal investigation of Nicodemo or others on his prosecution team.  A 2019 directive to county prosecutors mandating policies to comply with the U.S. Supreme Court’s decision in Brady v. Maryland, applies to deputy attorneys general.   A Brady violation is considered a serious issue for prosecutors.

While a “Use of Force” policy implemented by the attorney general’s office in 2020 mandates presentments to grand juries on police officers whose use of force results in a death, there is no similar obligation for prosecutors.

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

That will undoubtedly prolong the legal process for Eisemann, who has been under suspension by the special education school he ran since his 2018 indictment.  He will also incur legal fees for the appeal, and possibly a new trial.  Prosecutors have no real financial encumbrances to appealing, and Nicodemo has no personal liability for his mistakes.

The Lakewood Scoop first reported Paone’s ruling.