READ IT: Rabbi Eisemann Attorney’s Blistering Rebuttal of Prosecutor’s Appeal Against Retrial

As we all know already, Judge Joseph Paone granted SCHI founder Rabbi Osher Eisemann a retrial based on new evidence that utterly exonerates him, as well as over the fact that state prosecutors hid exculpatory evidence from the defense – a brazen violation of the Brady Act.

This week, the prosecution appealed the decision to grant a new trial. In their brief requesting an appeal, prosecutors made glaring mistakes and shamelessly downplayed the nature of the new evidence and their own travesty. Prosecutors wrote that the new evidence was “the identity of one of three bookkeepers employed by defendant in his accounting department at the time of the offense,” a gross mischaracterization. Prosecutors also completely omitted any mention of their Brady Act violations, making it seem as if they never did anything wrong in their handling of the case.

Prosecutors noted in their brief that due to other work they were busy with, they didn’t yet have time to write a brief explaining the reasons for their appeal, and they asked the appeals court to give them an extra 15 days to submit that brief, which was due August 1.

“Since this case was assigned to me, I filed the State’s response brief in State v. Welder Morente-Dubon, App. Div. Docket No. A-0459-20T1 on July 13, 2022,” the prosecutor wrote. “I prepared a draft of the Attorney General’s proposed joint amicus curiae brief in State v. A.M., Supreme Court Docket No. 087057, and State v. Oliver, Supreme Court Docket No. 087088, which is due August 5, 2022, on an expedited, peremptory schedule and scheduled for oral argument on September 12 or 13, 2022.  I have also had significant other work-related duties, including reviewing one brief for another attorney. Therefore, I am unable to complete an effective supporting brief in this matter by the required date of August 1, 2022, and request a fifteen-day extension to August 16, 2022.”

In response to the state’s appeal, Rabbi Eisemann’s attorney, Lee Vartan, submitted the following scathing response to the court, requesting that it deny the state’s motion for an extension:

On the merits of its application, the state can show neither good cause for its request nor the absence of prejudice to Mr. Eisemann.

The state spends much of its certification chronicling its competing case obligations as its apparent “good cause,” but given the timing of those obligations, they had no effect on the state’s ability to timely file its motion for leave to appeal.

The trial court ordered a new trial on July 12, 2022. The deputy attorney general’s obligation to file a brief the following day in an unrelated matter, or review “one brief for another attorney” of unspecified length to be filed on an unspecified date, obviously did not hamper the state’s ability to timely file its brief in this matter.

Indeed, the deputy attorney general’s only arguably conflicting commitment is an amicus brief to be filed on August 5, 2022. But presumably the New Jersey Attorney General’s Office, the state’s self-professed “largest law firm,” can handle the filing of more than one brief in a given week.

The state’s certification also fails to address prejudice to Mr. Eisemann. Mr. Eisemann would be prejudiced by the granting of additional time to the state, in this yearslong prosecution, where the state was only able to obtain a conviction against Mr. Eisemann on ancillary charges, because the state withheld Brady evidence from the defense.

In the spring of 2021, as Mr. Eisemann’s re- sentencing approached, the defense uncovered newly discovered evidence. Specifically, the defense discovered the bookkeeper who made the allegedly criminal bookkeeping entry at the heart of the state’s financial facilitation charge. That bookkeeper testified through an affidavit that she made the entry, it was not intended to erase the defendant’s debt as the state had all along alleged, but was instead made to keep the books balanced. She testified further that Mr. Eisemann was unaware of the entry and had nothing to do with it.

The state responded to this newly discovered evidence with confirmation. Specifically, the state appended to its opposition papers a QuickBooks printout created by the state and specifically requested by the defense, but never turned over in discovery. The printout was dated February 5, 2018, or one year prior to trial (and several months prior to the superseding indictment). The printout confirmed that it was the newly discovered bookkeeper who made the allegedly criminal entry.

The state knew of her existence a full year prior to trial, but nevertheless led the jury to believe that it was Mr. Eisemann who was responsible for the entry. Prosecutors admitted as much before Judge Bucca, and then again before Judge Paone. Both judges quickly realized the import of the bookkeeper’s testimony.

First, Judge Bucca ordered an evidentiary hearing on the defendant’s motion for a new trial. Unhappy with the court’s ruling, the state filed a recusal motion arguing that Judge Bucca was irredeemably biased in the defendant’s favor notwithstanding that Judge Bucca had been handling the motion for months without objection from the state.

Judge Bucca did recuse himself, and the state prevailed upon Judge Paone not to proceed with the evidentiary hearing, but to instead rule based on written submissions and oral argument alone. The state got what it wanted. Just four days after argument concluded, Judge Paone ruled:

“[The bookkeeper’s] testimony, if believed, is not “merely” contradictory or impeaching of the evidence adduced at trial, but establishes an innocent explanation for the ledger entry that would support defendant’s “general denial of guilt,’ because she indicates, as the person responsible for the write-down in controversy, that what she did was in error; and furthermore, she was not directed by defendant to make the entry. [The bookkeeper’s] testimony goes to the central issue of defendant’s guilt and culpability in the second criminal transaction for financial facilitation.”

Judge Paone concluded: “[T]here can be no doubt that if [the bookkeeper] is believed by a jury, the verdict will be different.” 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 defendant.”

More succinctly, if the bookkeeper is believed, then Osher Eisemann is innocent. The state has acknowledged as much throughout the proceedings below.

Mr. Eisemann has been laboring under this case for years. In 2018, he resigned from his position with the special needs school he founded, and has been living under the glare of negative publicity ever since. He has maintained his innocence throughout.

In granting a new trial, Judge Paone found that the bookkeeper’s testimony “has the probable effect of exonerating defendant.” The court also found that prosecutors committed a Brady violation since they knew “the source of the ledger entry at issue in this case long before trial,” i.e., the bookkeeper, but failed to disclose her or the QuickBooks printout to the defense. Had prosecutors fulfilled their basic constitutional obligations, Mr. Eisemann’s saga through the courts would have ended long ago. Now, when it is finally nearing its end, the state asks for more time. The deputy attorney general’s schedule is not more important than Mr. Eisemann’s interest in vindicating his name and getting his life back.

If the state wanted to appeal, it should have appealed in the time allotted. Having failed to do so, the Court should deny the state’s motion and allow the case to proceed to trial so that a new jury can hear from the bookkeeper who the state has so desperately tried to keep silent.”

The brief was filed by Vartan on Tuesday, August 2. The appeals court has not responded as of yet to indicate if they will grant an extension or not, though a decision is expected in the coming days.

Prosecutors also asked Judge Paone for a stay on proceeding to a new trial, but Rabbi Eisemann’s attorneys objected, saying that the wish to begin discovery so that they can start preparing a defense. Judge Paone has not yet responded.

As of now, a pre-trial hearing is scheduled for August 9.

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