Judges Slam Prosecutors For Hiding Critical Evidence
After years of legal struggle, Rabbi Osher Eisemann, the founder of SCHI, the School for Children with Hidden Intelligence, won a stunning victory when a NJ Appellate Court issued a ruling in his favor on the first day of Shavuos.
The ruling upheld a lower court’s decision issued by Judge Joseph Paone that Rabbi Eisemann’s constitutional rights had been violated and he was entitled to a new trial.
The appellate panel affirmed that the prosecution led by Deputy Attorney General John Nicodemo withheld crucial evidence at Rabbi Eisemann’s 2019 trial that would likely have changed the verdict.
The withholding of critical information from the defendant’s lawyers is known as a “Brady violation” – considered a serious breach of judicial ethics—and constitutes grounds to vacate the entire trial.
The granting of a new trial is a rarity in New Jersey’s judicial landscape, legal experts say; the evidence justifying it must be dynamite. The Brady violation in Rabbi Eisemann’s case apparently qualifies.
Rabbi Eisemann has been fighting the state’s allegations of financial offenses since 2018. A split verdict in 2019 acquitted him from most of the charges but found him guilty of “financial facilitation,” as wells as “misconduct by a corporate official” based on that offense.
A judge sentenced Rabbi Eisemann to 60 days in prison. Outraged at the “too lenient” sentence, the prosecutors filed a motion with the Appellate Division, claiming the judge was biased in Rabbi Eisemann’s favor, and requesting that he be resentenced by a different judge. Prosecutors demanded a sentence of 12 years.
The appeals court agreed the judge had erred by not sticking to the sentencing guidelines, and they sent the case to a new judge, Superior Court Judge Joseph Paone, for re-sentencing.
In the meantime, Mr. Lee Vartan, Rabbi Eisemann’s attorney, filed a motion for a new trial after new pivotal evidence was discovered, which would almost surely have exonerated SCHI’s founder. Shockingly, the lawyers learned months later that Deputy Attorney General Nicodemo had known about the evidence during the trial but had concealed it, which prompted Vartan to file a second motion for a new trial, due to the Brady violation.
Guilty Conviction Overturned
In an extraordinary breakthrough, Rabbi Eisemann’s guilty convictions were overturned by Judge Paone. In a 10-page decision, the judge agreed to both arguments raised by the defense as grounds for a new trial: the discovery of new evidence that would exonerate Rabbi Eisemann and the prosecution’s “Brady” violation that hid it from the defense.
The lead prosecutor, John Nicodemo, turned to the Appellate Division of the New Jersey Supreme Court in an effort to overturn Paone’s verdict.
The appellate court this week upheld every aspect of Judge Paone’s ruling, saying that the evidence was compelling enough that it could persuade a jury that Rabbi Eisemann was innocent, and that no evidence existed of the so-called financial “crimes” of which he was convicted.
In an extraordinary Decision, the appellate judges unanimously ruled that, as the defense had argued all along, “the State produced no evidence of any debt” owed to SCHI by Rabbi Eisemann and subsequently erased in a cover-up.” [Page 6 of the Appellate Division Ruling].
Prosecutors had argued that an entry in the school’s accounting books indicated that a $200,000 outstanding loan had been criminally erased. This allegation, unsupported by evidence, provided the lynchpin for the State’s case. The prosecution used the entry to convince a jury that Rabbi Eisemann had laundered money through SCHI.
The loan, it turns out, was pure fiction. Not only did it not exist, but SCHI actually owed Rabbi Eisemann more than $300,000, as per financial audits produced by CPA Philip Stern at trial.
Likewise, there was no evidence of a “criminal entry” in SCHI’s QuickBooks ledger nor of illegal movement of money, as alleged by the prosecutors’ office.
This is a breathtaking twist in a case that has seen an innocent man wrongly vilified and subject to years of harassment, as the state continually sought to impose a long prison sentence upon him for nonexistent crimes.
In the absence of any evidence of a crime, the State’s charges resulted either from gross bungling or the manipulation of financial records to create a false narrative, say legal experts familiar with the case.
How The Government’s Case Collapsed
When a former bookkeeper came forward and testified that she was the one who had made the QuickBooks entry and that there was never a loan at all, her testimony collapsed the entirety of the state’s case, the defense argued in oral arguments in April.
The bookkeeper, identified in court papers by her real name but referred to here as ‘Rebecca’, affirmed that the entry was merely a misinterpreted log error that was in a ledger used as a “dumping” account to balance the books.
In its Decision issued May 25, the first day of Shavuos, the appellate court cited liberally from ‘Rebecca’s’ certification as grounds for its denial of the State’s appeal.
“[‘Rebecca’] stated that in 2015, she was one of three bookkeepers for SCHI and the foundation, but did not have a background in accounting. She stated she never shared her QuickBooks’s password access with Rabbi Eisemann, that he did not have QuickBooks credentials, never instructed her to make a particular entry, including the entry in question.”
“According to [‘Rebecca’],” the ruling went on, “her March 25, 2015 entry of $200,000 was meant to balance the foundation’s books and was not intended to erase a debt owed by defendant; she mistakenly credited the “022” account, when she should have credited the
“Gem GYD” account to properly balance the books.”
The judges explained the significance of ‘Rebecca’s’ testimony: “She stated that the 022 account was used as a “dumping” account when she and the other bookkeepers did not know how to attribute a particular transaction; it was never used to account for monies owed by defendant to the foundation.”
‘Rebecca’s’ certification also explained why the former bookkeeper did not come forward earlier about her QuickBooks entry. In 2019, when Rabbi Eisemann went to trial, “she was no longer employed by the school and did not approach his counsel because she was unaware of the specific allegations made against him and did not know they involved her entry,” the judges wrote.
Case Rested on Detective’s Blind Guesses
Although her identity was not known to the defense at the time of the trial—despite defense requests for all QuickBooks records to be turned over—it later emerged that the prosecutors all along had the correct information about ‘Rebecca’ in their possession but chose not to disclose it.
They also refrained from calling the bookkeeper to testify about the precise nature of her entry. Strikingly, they never spoke to her at all.
They could have asked her whether the QuickBooks entry reflected a debt – but instead chose to have a detective from the state’s crime department, Detective Bill Frederick, blindly speculate as to the source of the $200,000 entry.
Wholly unfamiliar with the school and its financial books, Frederick guessed that the money was a loan. He created an audit trail by manipulating the QuickBooks account to advance this notion and offer “proof” that a crime had been committed, defense counsel explained at the April appellate court hearing.
Only after the defense discovered ‘Rebecca’s’ identity on their own and filed a motion for a new trial did the prosecution feel compelled to release a page from their audit report titled “Exhibit F,” that showed the $200,000 entry in question had been penned by ‘Rebecca.’
In light of the new exculpatory evidence and the prosecution’s hiding of that evidence, the sentencing judge, Joseph Paone, threw out the convictions and ordered a new trial.
“There can be no doubt that if ‘Rebecca’ is believed by a jury, the verdict will be different,” Judge Paone wrote in his ruling. “[Her testimony] does more than 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 and was available to the defense, who should have found it.
But Judge Paone determined that the entry was “merely one line buried in a thumb drive of countless pages of journal entries, and which was key to the state’s case.”
“There were 342 QuickBooks ledgers [with an identical title to this one]. 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 had stated. “Even if ‘Rebecca’s’ involvement was discoverable diligence prior to trial, her testimony…would completely exonerate [Eisemann].”
Prosecutors Deny Brady Violation
In oral arguments on April 28 and its Appeal brief, the prosecution dug in its heels, arguing that Exhibit F was worthless to the defense and therefore, no Brady violation had occurred.
They further argued that Judge Paone abused his discretion in ordering a new trial and that Rabbi Eisemann should go straight to the sentencing phase, where he could have been jailed for up to 20 years.
But the appellate court agreed with Judge Paone, writing in its decision that the new evidence clearly shows that there was no loan made to Rabbi Eisemann. If no loan existed, he could not have committed the crimes of which he was accused, and a jury would most likely acquit him.
“The motion judge did not abuse his discretion in ordering a new trial,” the judges wrote. “The record supports his determination that no evidence in the record shows defendant had an outstanding loan with the school, other than [Detective] Fredrick’s interpretation of “Rebecca’s” QuickBooks entry.
“Considering the jury did not hear any evidence contradicting Fredrick’s interpretation, defendant should be permitted [in a new trial] to present Rebecca’s testimony,” the judges wrote.
“Should the jury credit her statement that her entry was made in error, and dismiss Fredrick’s testimony,” the State would have failed to prove the charge of money laundering. That is “because there is no proof defendant attempted to conceal financial wrongdoing by deceitfully attempting to pay down a debt to the school.”
Downplaying Bombshell Evidence
The prosecution attempted to wiggle out of the Brady violation by arguing that no violation had occurred because Exhibit F could not help the defense; they were relying on it “in vain.”
The prosecutors also belittled Rebecca’s testimony in their oral argument, saying that even if ‘Rebecca’ would’ve testified that the $200,000 entry had nothing to do with a loan, they would have “eviscerated” her testimony on cross examination.
“[The State tried to downplay Exhibit F], yet Exhibit F is the entirety of their case,” defense counsel Lee Vartan argued before the appellate panel. “The entry in question is all the State can point to when it alleges financial crimes took place, as no evidence of an actual loan was ever presented at trial.”
“The jury was never shown a check or a wire or electronic record of money being moved from SCHI to Rabbi Eisemann,” the defense attorney pointed out. “No loan documentation was ever shown. No eyewitness testimony about a purported loan from a ledger account was ever produced.”
“The only testimony pertaining to a so-called loan came from Detective Bill Fredrick, the prosecution’s witness,” said Vartan. “Mr. Fredrick has no CPA background or any firsthand knowledge of the school’s QuickBooks records. He wasn’t called as an expert witness by the prosecution. He simply took a guess that the ledger containing the $200,000 reducing entry was a loan account documenting a money flow between the foundation and Rabbi Eisemann.
Far from the State “eviscerating” ‘Rebecca’ on the witness stand, ‘Rebecca,’ who penned the $200,000 entry herself, would easily overturn the testimony of Bill Fredrick,” Vartan told the appellate judges at the oral hearing in April.
His arguments hit home.
“[Even] the State agreed there would have been no allegations of money laundering without ‘Rebecca’s’ entry,” the appellate court said in its Decision, stressing that Exhibit F was central to the case.
They underscored that Judge Paone was correct in predicting that Exhibit F—showing Rebecca’s direct responsibility for the bookkeeping—would likely result in Rabbi Eisemann’s acquittal in a new trial, and that its concealment was therefore a Brady violation.
Manipulating QuickBooks to Create Audit Trail
The prosecution insisted the defense already had access to the bombshell information about ‘Rebecca’ in its files, but the three appellate judges, Thomas Sumners, Peter Geiger, and Ronald Susswein, bluntly disagreed.
“Exhibit F was not in defendant’s possession because it was created by Fredrick’s manipulation of the QuickBooks records, as he described at trial,” the judges spelled out. “As [Judge Paone] found, ‘Rebecca’s’ identity would not have been readily discernable upon examination of the school’s records without substantial manipulation of the QuickBooks software.”
“The State produced S-89 and S-90 at trial, but withheld Exhibit F, the second half of the audit trail, showing who made the entry pertaining to the return of the $200,000 to the 022 account,” the appellate panel wrote.
“Defendant was not aware at trial of ‘Rebecca’s’ role in the State’s case. Thus, even if defendant manipulated QuickBooks as Fredrick did, the fact remains the State did not disclose Exhibit F––which it created––to defendant [when it was most needed].”
“We see no basis to disagree with the motion judge that the State committed a Brady violation,” the court concluded, “because it denied the defendant his constitutional right to a fair trial in not disclosing [evidence].”
Prosecutors Reverse Position; Attacked Judge for Waiving Hearing
The prosecution accused Judge Paone in its appeal brief of erring by not scheduling an evidentiary hearing where ‘Rebecca –who penned the $200,000 reducing entry—would be questioned and cross-examined. Prosecutors claimed they would have “eviscerated” her testimony.
The appellate judges countered by noting that the prosecution themselves fought against the notion of an evidentiary hearing, and the trial transcript clearly shows the prosecution waived the evidentiary hearing when Judge Paone raised the subject in court.
As evidenced by the Trial Transcript, page 52, both sides were in agreement about waiving the hearing.
The Court: Okay. So do you agree with the conclusion that an evidentiary hearing would not be warranted?
Mr. Nicodemo: I agree with that, Your Honor.
The Court: All right. Mr. Vartan, do you agree with that notion or with that conclusion?
Mr. Vartan: I do.
In response to the State turning around and slamming Judge Paone for not holding the hearing, the appellate judges advised the prosecution that their efforts to reverse position when the verdict didn’t go their way would not succeed.
The judges cited a law that the doctrine of “invited error” bars “a disappointed litigant” (in this case, the State) from arguing on appeal that a ruling they dislike was the product of judicial error, “when that party itself urged the lower court to adopt the [decision] they now allege to be error.”
The court added that even if the state would not have agreed to waive the evidentiary hearing, the judge was correct by issuing his ruling without holding the hearing.
“Putting aside the State’s invited error, the judge did not abuse his discretion in not conducting [an evidentiary] hearing.”
Prominent Voices Protest Unethical Conduct in Ethics Agency
The New Jersey Globe noted with irony that “[Deputy Attorney General] Nicodemo will suffer no personal liability for his mistake, while Rabbi Eisemann has now paid legal fees related to his first trial, his request for a new trial, and the appeal of that decision.”
“Nicodemo has faced challenges to his ethics before, leading two state senators to sharply criticize him last year,” the Globe reported.
The Office of Public Integrity and Accountability (OPIA) that prosecuted Rabbi Eisemann was launched four years ago to root out corruption in law enforcement and civic life. But the agency itself is now being accused of unethical conduct and lack of integrity by state lawmakers and other prominent voices.
According to reports in local papers including the NJ Globe and NJ Monitor, Democratic Sen. Joe Cryan and Republican Sen. Robert Singer have slammed the “disgraceful” way Rabbi Eisemann’s case and others have been handled by high-profile prosecutors from OPIA, including by John Nicodemo, who reportedly heads the office.
Responding to news of the Brady violations in the Eisemann case and others, State Sen. Joseph Cryan called Nicodemo a “multi-offender” and “among the most unethical to ever work or exist in New Jersey,” the New Jersey Globe reported.
“Prosecutors like this essentially answer to no one in this state and country,” Cryan said in a Facebook post quoted in the article. “The public deserves accountability not only for disgraceful conduct like this, but also answers on investigations: What was done and why?”
In a more recent Twitter post, Sen. Cryan decried the gross injustice in the Eisemann case. “OPIA lost, cheated and got caught,” he wrote. “Time to stop persecuting the rabbi for pride only. Bankrupting and trying to force a plea deal by driving up his legal bill. Apologize and pay his legal bill since your guy cheated. Then clean house, OPIA, a NJ disgrace.”
In the wake of the appeals court verdict, the State could have dropped the charges against Rabbi Eisemann or announced its intention to retry him. Instead, the Attorney General’s office declared its intention to appeal the case to the NJ Supreme Court, still seeking to send him directly to prison.
The zeal to petition first the Appellate Division and now the state Supreme Court –which grants a hearing to fewer than ten percent of all cases filed—seems to mask a reluctance or fear on the part of the prosecutors to face a new trial.
This is hardly surprising in light of the explosive evidence they sought to keep hidden—the bookkeeper’s testimony that upends their entire case.
Appellate Court Takes A Shot at Sham Investigation
By Chaim Saller
In the opinion brief issued this week by the NJ Appellate Division in the case of Rabbi Osher Eisemann, the three-judge panel took a swipe at the initial investigation into Rabbi Eisemann, which led charges on five criminal counts. The five counts were the subject of a 3-week trial in February of 2019, which ended with the jury vindicating Rabbi Eisemann of the primary charges – those that were the subject of the State’s investigation – and returning a guilty verdict on the two charges that were tacked on after.
In recounting the history of the case, the Appellate Court lays out the investigation and the resulting charges. In their description, they make a point of noting how incompetent the lead detective was – something that has been reported all along in Yated.
“On June 29, law enforcement officers obtained warrants to search the foundation’s records,” the panel writes. “Monmouth County Prosecutor’s Office Detective Thomas Page had begun investigating SCHI earlier that year concerning an alleged misuse of public funds for non-school related purposes. Page concluded improper expenditures were made from SCHI’s bank account, where tuition money from the Lakewood Board of Education, intended for Lakewood students attending the school, was deposited.” (These are the charges that Rabbi Eisemann was later exonerated of at trial.)
The court continues by lambasting lambast Page for his faulty investigation.
“He did not closely consider other SCHI accounts and conceded, despite the school’s receipt of substantial private donations, he had “no idea” how much money came into the school from those sources.”
The panel then notes that Detective Page’s hole-ridden investigation also leads to a lack of credibility in regard to his assumptions as to the $200,000 at the core of the guilty charges now vacated.
“Even though Page characterized the $200,000 at issue in this appeal as defendant’s debt payment to the foundation or SCHI, the State provided no evidence of any debt,” they wrote.
This account from the Appellate Court underscores how the entire investigation against Rabbi Eisemann was just a fishing expedition from the onset, and how a proper investigation was never even carried out. Despite the grossly inadequate investigation, the state proceeded to charge Rabbi Eisemann, hoping to illicit a guilty verdict and send him to jail for up to 60 years. Thankfully, the jury recognized that sham for what it was, and rejected all counts relating to the use of public funds.
The incompetence of the aforementioned Detective Page also came to the forefront during trial.
In a heated segment of cross-examination, Detective Page was forced to acknowledge that after a two-year investigation, he really had no real knowledge of any criminal wrongdoing, and had no idea how many private dollars were in the school accounts:
Defense: So, again then tell me, how many — how much private money was deposited into [the account] that you reviewed eight hours a day for two years?
Page: I can’t give you a specific answer.
Defense: So, you do not know. Is that your answer?
Page: Yeah, that’s — correct.
Defense: And you testified on direct, did you not, that I, “know the bank accounts,” right?
Defense: But you don’t really know the bank accounts; do you?
Page: In terms of?
Defense: In terms of what went in – in private dollars. You really have no idea.
Page: In private dollars, no.
Defense: You have no idea; right?
Page also testified, during the trial, that had there been enough private dollars in the accounts, then there would have been no crime. Despite that, he didn’t investigate how much of the money was private money, and he had no problem testifying before the grand jury that there were definitely insufficient private dollars to cover the transactions.
In a climactic end to defense attorney Lee Vartan’s cross examination of Detective Page, which took place on the second day of the trial, this point was accentuated in a simple exchange.
Defense: So, you and the State indicted — you went before the grand jury so an indictment would be returned so [Eisemann] would sit here charged with five felonies, and you did nothing to look at the private dollars in any of these [School] accounts?
Page: That’s correct.
Defense: Even though if there were sufficient private dollars, there was no crime by your admission?
Page: That’s correct.
Defense: Nothing further.
The blatant incompetence of state investigators had been highlighted in Yated reports in the past, but for the first time, it’s being openly recognized by the judiciary, as was noted in the opinion brief released this week.