PASSAGE OF THE DAY: " Eisemann’s retrial began in July 2024. John Nicodemo, the deputy attorney general who led the prosecution at the first trial, was no longer in the courtroom. After the courts had ruled that prosecutors had failed to turn over exculpatory evidence, Nicodemo had been reassigned to an administrative position. On July 31, 2024, after the state rested, Judge Paone dismissed the case. “I reviewed the evidence in this case and I made a determination that there was insufficient evidence to convict the defendant, and I entered an acquittal on both counts.” “It took seven years, but Rabbi Eisemann was fully and finally vindicated, Vartan told the New Jersey Globe. “This is yet another instance of gross overreach by OPIA. It is far past time for [Attorney General] Matt Platkin to take a hard look at OPIA and the meritless cases it regularly brings. If Platkin continues to ignore the problem, the Legislature should hold immediate hearings.”
-------------------------------------------------------------
ENTRY: National Registry of Exonerations: By Ken Otterbourg. Contributing factors False or Misleading Forensic Evidence, Official Misconduct." Entered on August 21, 2024.
GIST: On March 29, 2017, Rabbi Osher Eisemann was indicted on charges related to the alleged misappropriation of public tuition funds at a special-needs school he ran in Lakewood, New Jersey.
Eisemann, then 60 years old, was the executive director for the School for Children with Hidden Intelligence (SCHI) and the president of the school’s related foundation. The indictments arose from an investigation into the school’s financial practices by the state’s Office of Public Integrity and Accountability (OPIA) after a referral from the New Jersey Department of Education.
In New Jersey, state education money can be used to pay for children to attend private schools if there is no suitable placement within the public schools. This is often the case with children who have special needs. Lakewood has a large population of Hasidic Jews, and at the time of the indictment, there was unease in Lakewood over the use of public funds at SCHI and a similar school, both affiliated with the Hasidic community, at the expense of the public schools.
Eisemann was charged with corruption of public resources, theft by unlawful taking, financial facilitation, misapplication of entrusted property, and misconduct by a corporate official.
According to a superseding indictment filed on April 13, 2018, Eisemann used the foundation to steal $779,000 in public tuition. Separately, the indictment said, Eisemann misappropriated $200,000 in school funds that were used in a money-laundering scheme to make it appear that he was repaying a debt he owed the foundation. The alleged crimes were said to have happened in March 2015.
Eisemann’s trial in Middlesex County Superior Court began in March 2019, presided over by Judge Benjamin Bucca Jr. Eisemann was represented by Lee Vartan. The state’s case was built around the QuickBooks records of the school and the foundation. Investigators had downloaded those files and then created their own audit trail of entries in the files.
According to these documents, Eisemann had purchased a cashier’s check for $200,000 from the school’s bank account on March 13, 2015, in the name of GZYD, a nonprofit that made loans to small businesses in the Lakewood community. The head of the nonprofit then issued a check for $200,000 to Taz Apparel, an online clothing company that Eisemann co-owned. Eisemann’s partner in the apparel business then wrote Eisemann a check for $200,000. Eisemann wired the money back to the school on March 25, 2015. The deposit was recorded on May 20, 2015, in a QuickBooks ledger called “O.Eise Loan:osher 022.”
The head of GZYD and Eisemann’s business partner both testified that the transfers were done at Eisemann’s request.
William Fredrick, the deputy chief for the state’s financial crimes bureau, testified about the QuickBooks accounts. Fredrick was not an accountant but over a defense objection was allowed to testify as a non-expert witness. He said the records showed that Eisemann had taken $200,000 from the school and then had the funds returned to another account, making it appear that he was reducing the debt he owed the school. Fredrick testified that the withdrawal was entered by a user named “admin,” which referred to Ahuva Gruen, the school’s business manager. Gruen did not testify, and there was no testimony about who recorded the deposit in QuickBooks.
During the trial, there was substantial testimony and evidence that the records of the school and the foundation were not kept in good order. During Fredrick’s cross-examination, for example, Eisemann’s legal team introduced records from a certified public accountant that said that for the year that ended June 30, 2015, it was the foundation that owed Eisemann money, not the other way around.
Ari Ehrlich, the controller and chief financial officer for the school and foundation, said that the institution's QuickBooks records were inaccurate prior to June 2016.
Eli Leshkowitz, a lawyer and forensic accountant, said the school’s QuickBooks accounts were “completely unreliable” as a tool for tracking the flow of funds between the two entities. Leshkowitz also said the school always had sufficient funds to cover transactions questioned by the state.
On February 27, 2019, the jury convicted Eisemann on the two counts related to the $200,000 transfers: financial facilitation and misconduct by a corporate official. He was acquitted on the three remaining counts that involved the alleged misappropriation of $779,000.
At sentencing, Judge Benjamin Bucca Jr. praised Eisemann as a community leader who had dedicated his career to helping children. Judge Bucca said the state’s evidence against Eisemann was “slim” and that the matter “arguably could have been equally and responsibly handled as an administrative matter. The money taken was returned. Clearly, private money was used. And the crux of the State’s case was about public money being used.”
On April 29, 2019, Judge Bucca sentenced Eisemann to two years on probation and 60 days in the county jail, a departure from the state’s sentencing guidelines of 10 years in prison. Bucca also ordered Eisemann to pay a $250,000 penalty.
Both sides appealed. The state said Judge Benjamin Bucca had erred in handing out an overly lenient sentence. Eisemann said that his conviction was marred by a defective indictment, flawed jury instructions, and insufficient evidence.
On December 31, 2020, the appellate division of the Superior Court of New Jersey affirmed the conviction, but returned the case to the trial division for sentencing before a different judge. It said that Judge Bucca had improperly applied the factors that would allow a judge to sentence a defendant outside the guideline boundaries.
“In this case, defendant lacked the unique characteristics that might meet the serious injustice standard,” the court wrote. “Neither his contributions to the community and school, the support he received from his community, the care he provided his disabled son, his age, nor his alleged belief that he had done nothing wrong, formed a basis to overcome the presumption of imprisonment. The judge was not free to disregard the legislative scheme simply because he believed that defendant had done many good deeds in his lifetime and had intended no harm.”
On June 7, 2021, prior to resentencing, Eisemann’s attorneys moved for a new trial, based on an affidavit from Rochel Janowski, the former bookkeeper at SCHI and the foundation.
Janowski said that she had made a mistake when she entered Eisemann’s deposit into QuickBooks. She said the account in question was simply a “dumping account,” used when she was unsure how to attribute a transaction. There was no intent to record the transaction to reduce any debt Eisemann might owe the school.
“The ‘O.Eise Loan:osher 022’ ledger was not used to account for monies actually owed by Rabbi Eisemann to the Foundation or vice-versa,” Janowski said.
“Stated plainly, based on the testimony of Ms. Janowski, there was no $200,000 write-down of a debt owed by Eisemann to the Foundation; there was no theft from the Foundation; and there was no second criminal transaction,” the motion for new trial said. “There was no crime, only a mistake by a bookkeeper too scared to come forward given the State’s aggressive prosecution of Eisemann and the Foundation.”
As part of its response, filed on July 20, 2021, the state included the second half of Fredrick’s audit trail, which he had created from the QuickBooks files. The document, which noted that a user named “rochel” had created the deposit entry in question, had not been given to Vartan prior to trial.
At an evidentiary hearing on November 16, 2021, the state and Eisemann’s attorneys argued about this new evidence. The state insisted that Eisemann’s attorneys could have been able to locate Janowski with due diligence and then learn of her involvement with the school’s financial records.
In a supplementary motion, Eisemann said the state had failed to disclose exculpatory evidence. The motion said the audit trail didn’t exist until it was created by the state. “The defense had no reason to attempt to create it since prosecutors led the defense to believe, just as they led the jury to believe, that ‘Admin’ was alone responsible for booking the offending QuickBooks entry,” the motion said. “Eisemann, with no knowledge of how or who was responsible for maintaining the Foundation’s QuickBooks, was without any ability to suggest to his attorneys that the State was wrong and someone other than ‘Admin’ could have been responsible for the entry.”
On July 12, 2022, Judge Joseph Paone of Middlesex County Superior Court vacated Eisemann’s conviction based on the state’s failure to disclose exculpatory evidence.
The state appealed Judge Paone’s ruling, but the appellate division affirmed the lower court ruling, agreeing that prosecutors had failed to turn over the records showing Janowski’s involvement in the financial reporting at the school. The New Jersey Supreme Court declined to hear the state’s appeal.
Eisemann’s retrial began in July 2024. John Nicodemo, the deputy attorney general who led the prosecution at the first trial, was no longer in the courtroom. After the courts had ruled that prosecutors had failed to turn over exculpatory evidence, Nicodemo had been reassigned to an administrative position.
On July 31, 2024, after the state rested, Judge Paone dismissed the case. “I reviewed the evidence in this case and I made a determination that there was insufficient evidence to convict the defendant, and I entered an acquittal on both counts.”
“It took seven years, but Rabbi Eisemann was fully and finally vindicated, Vartan told the New Jersey Globe. “This is yet another instance of gross overreach by OPIA. It is far past time for [Attorney General] Matt Platkin to take a hard look at OPIA and the meritless cases it regularly brings. If Platkin continues to ignore the problem, the Legislature should hold immediate hearings.”
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6858
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
- SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
———————————————————————————————
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
---------------------------------------------------
