Eisemann Defense Reveals Purposeful ‘Foul Play’ in Brief to State’s Supreme Court

The documents that prosecutors begrudgingly released last month after being forced to do so by a judge show that prosecutors willfully withheld evidence, lawyers for SCHI founder Rabbi Osher Eisemann wrote to the state’s highest court this week.

Prosecutors were hit with a Brady Act violation for failing to disclose exculpatory evidence before the trial, evidence that was revealed to be in their possession when they included a single page in a post-trial filing. Superior Court Joseph Paone then ordered them to turn over the entire 347-page document to the defense, and after a year of stalling, they finally released a cleaned copy – without any of their notes or markups – just last month.

Now, in their brief to the NJ Supreme Court, the Eisemann defense outlines why the prosecution was so reluctant to release the documents: the documents show that the prosecution deliberately tried to hide the exculpatory evidence.

“Following the Appellate Division’s decision, the motion court ordered the State, over the State’s continued objection, to produce the entire ‘Exhibit F’ document to the defense,” the defense brief reads, “The full document further demonstrates the State’s foul play.”

The brief explains that when the prosecution wished to show two entries, they presented two exhibits to the court. One exhibit, the newly released documents reveal, was a short cutout of the full Exhibit F document. But when it came to the other entry, instead of showing the court the corresponding entry in Exhibit F, the prosecution decided to present a different document. Why not show the same document? It is obvious that the prosecution didn’t want the court or the jury to see the second entry in Exhibit F, because in Exhibit F it clearly showed that it was someone other than Rabbi Eisemann who made the entry. So, to keep the jury in the dark, prosecutors withheld the complete Exhibit F, and instead only showed a small part of it, and used another document to complete their testimony.

“Worse, the State’s actions were done with intention,” Rabbi Eisemann’s attorneys wrote in their brief to the Supreme Court. “The State admitted to the trial court that it wanted the jury to ‘infer’ that Eisemann’s ‘fingerprints were on the [QuickBooks] entries’ to meet its burden. But Eisemann’s fingerprints were not on the entries, and the State knew that at least one year prior to trial. The State went to great lengths to keep ‘Exhibit F’ from the defense. It even created a standalone [exhibit] two weeks prior to trial to avoid having to disclose ‘Exhibit F.’ The complete ‘Exhibit F’ document had all of the information contained in [the standalone exhibit], plus the exculpatory information. There was no reason to create [the standalone exhibit] except to avoid disclosing Exhibit F.”

An intentional Brady Act violation can be grounds for not only the convictions to be dismissed, but for the entire case to be permanently dismissed, without the prosecutors being able to bring the case to trial again. A motion to dismiss the case based on the new revelations can only be submitted to the trial court after the Supreme Court process concludes.

This bombshell revelation was included as part of a 23-page brief submitted to the New Jersey Supreme Court, in response to the prosecutor’s motion for leave to appeal. On Shavuos, a 3-judge appeals panel upheld Rabbi Eisemann’s right to a new trial, agreeing with the trial court that new evidence likely would’ve changed the jury’s verdict, and that prosecutors violated the Brady Act by withholding that evidence. The prosecutors are now seeking intervention from the state’s highest court, but the Supreme Court only accepts about five percent of cases presented to them. This week’s brief is the final brief to the Supreme Court before the court decides whether or not it will take the case. That decision is expected sometime in September.

Please continue to daven for Osher ben Chana Frumet.

{Matzav.com}