Prosecutors seek Appellate stay to delay trial, Judge blasts them: “Delay, delay, delay”
By Chaim Saller
After trying for more than a year to hold back evidence from Rabbi Eisemann’s defense team, Middlesex County Judge Joseph Paone this week ordered that prosecutors turn over the evidence “forthwith” – immediately, without any delay.
The order came after the appellate division last week affirmed that prosecutors had violated the Brady Act by failing to disclose one page of a document numbered page 247 belonging to “Exhibit F,” an audit trail they created before the trial. However, they never handed over the rest of the exhibit, despite it being discoverable evidence that should have turned over before the 2019 trial.
Last year, after the judge ordered a new trial based on the withholding of page 247, which contained the explosive revelation that the state had known that it was not Rabbi Eisemann who made the alleged criminal entry, Paone also commanded prosecutors to hand over the complete document. But the prosecution, then led by Deputy Attorney General John Nicodemo, refused. They filed a motion for a stay, and when Paone denied it, the prosecutors appealed the decision to the state’s appellate division, who agreed to allow the prosecutors to hold off until after the appeal played out.
Now, after last week’s decisive appellate win for Rabbi Eisemann, Judge Paone was not willing to wait any longer. In a heated hearing in which he repeatedly rebuked the prosecution, the judge grew frustrated at the prosecution’s excuses for keeping the evidence in hiding.
“Put out your case,” the judge pressed Deputy Attorney General Jeffrey Manis – a new prosecutor just assigned to the case. “If you can prove the case, show the defense how you can prove the case. Why are you trying to keep this from the defense? What’s in it that would be problematic?”
Judge Paone also pressed forward with scheduling a new trial, despite objections from prosecutors who seek to hold off in the hopes that the state supreme court will take up their case.
The state is seeking the review of the state’s highest court, prosecutors told Superior Court Judge Paone in his Middlesex County courthouse Thursday. They therefore would file a motion to the state’s appellate court requesting a stay on their ruling, and if the request was denied, they would petition the state’s Supreme Court for the stay.
But Judge Paone wasn’t hearing it.
“What’s the likelihood here?” the judge noted skeptically. “I mean, there’s no dissent, so [what’s] the likelihood of them even taking this case? That’s hopeful thinking, wishful [thinking]. The likelihood of the Supreme Court taking this case is not great.”
Prosecutors continued to object, saying that if the Supreme Court would overturn the ruling and seek to send the case straight to sentencing, the resources that go into a new trial would be wasted. But Paone pushed back sharply.
“We’re going to move forward with this case, and all I get from the State is delay, delay, delay,” he asserted. “I am not going to wait for [the Supreme Court]. You are going to produce the document forthwith. And Mr. Vartan, you give me an order, I’ll sign it. If they want to appeal it to the Appellate Division, they can do that. But I am issuing an order forthwith that the State produce the audit trail.”
Before the end of the day, the order was produced and Judge Paone signed it. Given no legal recourse, the prosecution sent over the full 347-page audit trial the following day. However, the copy they sent over was a clean copy, with all their notes and markings removed. At the hearing, Paone had agreed to let them give this over as the start, with the defense having the option to file a motion to compel the unredacted copy if needed.
The defense team is looking over the newly released documents, and additional motions in the case are expected in the coming weeks.
Paone set the trial for August 1, immediately after the Bain Hametzarim. A pre-trial conference is scheduled for July 5.
The case is in an extremely volatile state right now, as a new trial looms in just seven weeks. Please continue to daven for Osher ben Chana Frumet.
{Matzav.com}
