Eisemann Prosecutors Appeal Case to State’s Highest Court

By Chaim Saller

Prosecutors in the case of SCHI founder Rabbi Osher Eisemann have asked the New Jersey Supreme Court to accept the case, a month after an appellate panel unanimously rejected their bid to avoid a new trial and instead send the case directly to sentencing R”L.

Last month, the New Jersey Appellate Division upheld a lower court’s ruling that Rabbi Eisemann was entitled to a new trial due to newly discovered evidence that probably would’ve changed the verdict, as well as because prosecutors had violated the Brady Act when they withheld that evidence from the defense.Now, prosecutors have asked the state’s highest court, which only accepts less than 10 percent of cases petitioned, to review the case, asserting that both the trial court and the appellate division have made a number of “fatal flaws,” which “if left undisturbed, its errors risk undermining jury verdicts againand again in the future.”

“In siding with defendant, the Appellate Division (and the trial court) madethree errors that significantly undermine the tests to distinguish meritoriouspost-trial challenges from those that fall short,” prosecutors wrote in their motion to the State Supreme Court seeking leave to appeal.

“First, the panel misunderstood the rules for establishing ‘new’ evidence, particularly the requirement that newevidence not have been discoverable with reasonable diligence,” the prosecution explains. “Second, the panel adopted a brand-new Brady requirement thatrisks havoc in the digital age, particularly in financial prosecutions. The panelidentified a Brady violation not because the State suppressed data, but becausethe State did not turn over an exhibit that was generated by filtering the financial[data]—an unprecedented burden that puts verdictsin countless electronic-data cases at risk. And finally, the panel required a newtrial without permitting the State any evidentiary hearing—even though such ahearing is crucial to test the credibility of written representations supplied aftertrial has already finished.”

The brief expounds on these three points, all points addressed in depth previously by the trial court and the appellate division.

The first point, in which the prosecution argues that the new evidence was discoverable, was a key section of the trial court’s decision brief. Superior Judge Joseph Paone wrote in his decision that since prosecutors only revealed during the trial which transactions were allegedly criminal, it would’ve taken ‘herculean effort’ for the defense team to start tracking down who made the entry, and thus the evidence is considered newly discovered. He also pointed out that there was no way to guess beforehand which entry the prosecutors had in mind, as there was more than 340 ledgers with the same prefix, and to examine each one thoroughly would’ve taken superhuman effort, which is not mandated. This reasoning was upheld by the appellate division, though prosecutors completely omit any mention of it in their brief to the state’s Supreme Court.

The second point raised by the prosecution,that mandating prosecutors to turn over their filtering ‘risks havoc in the digital age’ – a point that they repeatedly return to in their 25-page brief, seems to ring hollow. QuickBooks, the software that contains the ledgers and is the focus of the Brady Violation, has had its initial version released more than 40 years ago, and has been the industry norm for decades, so it’s unclear why the prosecution calls it a product of a ‘new age’ that needs the Supreme Court’s clarification. Moreover, the claim echoed later in the brief that ‘were the Appellate Division’s Brady rule to stand, it wouldinvite myriad challenges to financial-crimes convictions,’ is seemingly equally puzzling. The appellate opinion was, as most of their opinions are, an unpublished opinion. Unpublished opinions are precluded from being cited as precedent for future cases, so any decision on this case would likely not have legal ramifications for the future.

The last point raised by the prosecution,that the trial court was not allowed to order a new trial without first holding an evidentiary hearing to hear the newly discovered evidence, was reported about extensively in Yated in previous columns, and was addressed at length in the appellate opinion. In a hearing before the Superior Court, Judge Paone asked prosecutors if they had any objection to him ruling without first holding an evidentiary hearing, and prosecutors gave their okay. The Appellate Division called this an ‘invited error,’ where the prosecutors can no longer raise an objection later. Moreover, they wrote that even without the invited error, the judge was not wrong in ruling without holding an evidentiary hearing, as such a hearing is only necessary when the testimony is ‘sketchy’ or ‘highlysuspect,’ which was not the case here.

The defense team now has 10 days to respond to the prosecution’s motion, and to argue with the case does not warrant review from the New Jersey Supreme Court.

Please continue to daven for Osher ben Chana Frumet.

A personal message from Rabbi Osher Eisemann on seventh anniversary of the Attorney General’s raid of SCHI

June 29, 2016 remains in my memory. On that day, exactly seven years ago, approximately 200 heavily armed agents burst into the SCHI school, executive offices, as well as my home and other residential homes in Lakewood, setting into motion a saga of ups and downs throughout the years.

I would like to publicly thank Hakadosh Boruch Hu for giving me the strength and siyatadishmaya throughout this time. I would also like to take this opportunity to express my deepest appreciation to the thousands of supporters that stand by me, through davening, good deeds, and monetarily.

Now, seven years later, as the prosecution continues to be relentless and is appealing the enormous win that we boruch Hashem had in the courts, I would like to channel all the anguish and frustration into something positive that will be a tremendous zechus for me.  As you may know, aside from the work at SCHI, I have undertaken a special program during the summer months to help special needs children and their families. Families of special needs children are constantly consumed by the care of their child, and there is a crucial need of respite during the summer months to rejuvenate.  As many of you already know, Camp SCHI is currently expanding and is in urgent need of funds.

I am greatly indebted to all those that can help in this colossal undertaking.  To join and to see more about Camp SCHI visit causematch.com/rabbieisemann, or call 732.942.2213.

{Matzav.com}