The lead prosecutor in the case against SCHI founder Rabbi Osher Eisemann, Deputy Attorney General John Nicodemo, has been removed from the Eisemann case, just weeks after Judge Joseph Paone ruled that the prosecution violated the Brady Act by withholding key exculpatory evidence from the defense.
Regardless, the state is not backing down on their prosecution of the revered SCHI founder, as they push forward in an attempt to appeal a decision from Judge Paone vacating the convictions and ordering a new trial.
In the weeks since the judge affirmed the Brady violation, the prosecutors have come under fire for their corrupt handling of the case, with one state senator calling them “the most unethical to ever work or exist” in New Jersey.
Acting Attorney General Matt Platkin, who is charged with overseeing all the departments at the AG’s office, has recused himself from the Eisemann case, leaving First Assistant Attorney General Lyndsay Ruotolo to make all decisions about the case.
Ms. Ruotolo refused to meet with the defense team, and approved the state’s appeal.
Since Judge Paone’s ruling, the state seems to be working overtime in an attempt to reverse the ruling and send Rabbi Eisemann to prison.
On July 14, immediately after the ruling ordering a new trial, Rabbi Eisemann’s lead defense attorney Lee Vartan sent a discovery demand letter to prosecutors asking that under the Brady Act, they turn over all documentation and records surrounding the withheld evidence, and all investigative notes that pertain to their knowledge of the counts charged at trial.
The letter went unanswered for three weeks and in the interim, prosecutors filed an appeal on Paone’s decision.
In a four-page filing to the state’s Appellate Division, Deputy Attorney General Lauren Bonfiglio, who handles appeals for the AG’s office, recounted a skewed narrative of the case’s background, replete with factual errors and mischaracterizations.
The state wrote that they were unable to submit a merits brief outlining their reasons for the appeal by the August 1 deadline, and they asked the court to grant them a
Defense Attorney Vartan subsequently wrote a letter to the appeals court pointing out the clear factual mistakes in the narrative told in the state’s brief, and urged the court to move speedily, as any delay would burden Rabbi Eisemann, whose long legal saga would’ve been long over had prosecutors not held back any evidence.
This Monday, the Appellate Division agreed to give prosecutors the courtesy of a one-time extension until August 16 for them to file their brief, but the court stressed that no further extensions would be granted.
The appeal is categorized as an interlocutory appeal, as it is seeking to reverse a mid-case
decision, and interlocutory appeals are generally expedited.
The Appellate judge overseeing this appeal is not from the same Appellate Part that handled the initial appeal after the trial in 2019, which resulted in the case being sent for resentencing.
At 6:00 p.m. this Monday, on the eve of a previously scheduled pre-trial hearing before Judge Paone, prosecutors filed a motion asking Paone to push off all proceeding on a new case until after the appeal process concludes.
In the 11-page motion brief submitted by Deputy Attorney General Michelle McBrian, who succeeded John Nicodemo as lead prosecutor in the case, the state asserts that a stay on the trial should be granted because of “judicial economy” and because discovery would lead to “irreparable harm” for the appeal.
“Courts always seek to avoid burdensome and unnecessary proceedings that may be rendered unnecessary by an appellate decision, but all the more so where there are other cases that are unquestionably pressing and in need of resolution,” McBrian wrote.
Ironically, after millions of dollars and nearly six years into the case, for the first time a prosecutor writes that she seeks “the elimination of unjustifiable expense and delay” and to “avoid the waste of defendant’s, the Court’s and the State’s resources,” since any trial proceedings will have been for naught in the event the Appellate Division reverses Paone’s ruling.
Interestingly, later in her motion, Prosecutor McBrian acknowledges Vartan’s discovery letter as a key motive for their attempt to garner a stay on trial proceedings, and to thereby delay any discovery obligations.
“In a letter dated July 14, 2022, defense counsel made additional “discovery” requests that ultimately may be the subject of motion practice,” McBrian wrote. “The nature of these requests may implicate various privileges, including work product privilege and deliberative process privilege and also go to the heart of the State’s appeal concerning the alleged Brady violation.
There is no need to proceed with discovery requests and expediting a new trial date until the Appellate Division decides whether to grant leave to appeal. If leave to appeal is granted, the Appellate Division will have jurisdiction over the case, thus precluding further proceedings in the trial court.”
Incredibly, this seems to imply that the state is in possession of additional exculpatory evidence, yet they make no attempt to conceal that they are trying to withhold it.
At the hearing Tuesday, Judge Paone denied the prosecutor’s motion for a stay on trial
proceedings, stressing how Rabbi Eisemann was subject to the legal proceedings of the case since 2015, and more than three years has elapsed since his initial trial.
Any delay was unjustified, Paone noted, and the appeal process would likely be over before trial begins. Paone disregarded the prosecutor’s objections to discovery, and urged them to try to accommodate all discovery requests from the defense.
Paone also advised them to file motions to his court when they thought any information was privileged or protected.
Paone set Wednesday, February 1, 2023 as the date for jury selection of a new trial, and opening statements to commence on February 6, the following Monday. He also set December 1, 2022 as a date for a pre-trial hearing, when both parties could discuss the details of the new trial.