The news is in!
Over Yom Tov, the New Jersey Appellate Division granted Rabbi Osher Eisemann a key victory in his years long legal saga!
Rabbi Eisemann's original trial jury proposed a real prison sentence.
However, citing Rabbi Eisemann's contributions to the community and school, the support he received from his community, the care he provided his disabled son, and his age, on April 29, 2019, New Jersey Superior Court Judge Benjamin Bucca found Rabbi Eisemann guilty on only 2 of 5 charges and sentenced him to probation plus 60 days in jail.
Judge Bucca specifically stated that the sentence imposed in accordance with the Code would "shock" his conscience, and therefore he gave a lighter sentence.
Rabbi Eisemann then appealed to the New Jersey Appellate Division to dismiss all the charges against him. The state cross-appealed to the court to remand the trial to a different judge because Judge Bucca was too nice. This was the State's attempt to get a harsher 6-12 years prison sentence.
On December 31, 2020, after a delay due to the Coronavirus pandemic, the Appellate Division denied Rabbi Eisemann's motion to dismiss completely and granted the state's request to remand Rabbi Eisemann's 60-day sentence before a different judge.
The Appellate Division found that Judge Bucca was
"not free to disregard the legislative scheme simply because he believed that the defendant had done many good deeds in his lifetime and had intended no harm."
Additionally, the court found that "the job of saying that a sentence imposed in accordance with the Code is too harsh belongs to a reviewing court and not to a sentencing judge, and therefore, it was not proper for the trial judge to use this claim."
In February 2021, Rabbi Eisemann responded with an an initial petition to the New Jersey Supreme Court, the state's highest court.
The Supreme Court only accepts to hear less than 10% of cases which seek their listening ear.
In April 2021, the Supreme Court formally denied Rabbi Eisemann's petition. At that point, a new sentencing date was set for July 23, 2021. Judge Joseph Paone was assigned to that hearing.
However, in June 2021, the case took a very positive spin with the filing of a motion for a retrial based on newly uncovered evidence in the form of testimony of the schools bookkeeper who made the QuickBooks entry on which the state relied on to prosecute Rabbi Eisemann. The bookkeeper provided a sworn certification that the entry she had made was evidence of nothing, and was no more than a bookkeeping maneuver to balance SCHI’s books.
Due to the filing of this explosive motion, Judge Paone tabled the scheduled sentencing hearing, and scheduled a hearing on the new motion for August 24, 2021. That hearing was adjourned to November 16, 2021.
On November 16, Prosecutors argued that the bookkeepers testimony was not credible. However, Judge Paone found it to be extremely "interesting," and he scheduled an evidentiary hearing to be held on March 15, 2022. That hearing was to determine whether or not the new evidence was shattering enough to toss the convictions.
As part of the motion brief filing on this matter, the defense revealed that the Prosecutors withheld crucial evidence from the defense and jury - a blatant violation of the Brady Act.
Finally, in July 2022, Judge Paone dismissed Rabbi Eisemann’s convictions, saying that the newly uncovered evidence could sufficiently impact a jury as to require a new trial.
The judge denied the Brady Act claims, which, if granted, would have resulted in the case being dismissed with prejudice.
However, the judge noted that the defense's argument that the newly discovered evidence "would probably lead to a different result," if shown before a new jury, and he therefore granted a new trial.
Judge Paone scheduled December 1, 2022 as the date for a pre-trial hearing, and February 1, 2023 as the date for the jury selection of a new trial, with opening statements to commence on February 6, the following Monday.
However, the planned new trial was halted when, on August 1, 2022, the Prosecutors filed an Interlocutory Appeal to the Appellate Division seeking to toss out the granting of a new trial.
The Prosecutors argued in their motion filing that Judge Paone did not have a right to order a new trial without first holding an evidentiary hearing to explore the new evidence.
On September 21, 2022, the Appellate Division agreed to hear this appeal, and granted a Stay on the scheduled new trial.
Ultimately, the Appellate Division heard oral arguments on the Prosecutors motion on April 25, 2023.
Prosecutors claimed that the new evidence is not exculpatory and should not warrant a new trial. They also asserted that Judge Paone had “no basis” to vacate Rabbi Eisemann’s convictions, insisting that the evidence did show that he used an arm of SCHI to cycle $200,000 of SCHI’s money through various bank accounts before transferring that money back as repayment for a loan.
An appellate judge immediately interjected, noting that there was a dispute whether such a loan had ever occurred.
Defense attorney Lee Vartan rebutted the Prosecutors arguments by pointing out that the entirety of the state’s prosecution of Rabbi Eisemann lay in their finding of the QuickBooks entry, so to now argue that withholding information about that entry – specifically, who made the entry – doesn’t make a difference, makes a mockery of the legal proceedings.
“We’re not asking for this court to exonerate Osher Eisemann, to declare he’s innocent, but only that a second jury should be able to hear all of the admissible evidence,” Vartan told the panel of judges.
Over Yom Tov, the Appellate Division released their decision affirming Judge Paone's granting of a new trial!
Judges Sumners, Geiger and Susswein wrote that Judge Paone "did not abuse his discretion in granting defendant a new trial."
"The motion judge did not abuse his discretion in ordering a new trial. The record supports his determination that no evidence in the record shows defendant had an outstanding loan with the school, other than Fredrick's interpretation of the QuickBooks entry. Considering the jury did not hear any evidence contradicting Fredrick's interpretation, defendant should be permitted to present the bookkeepers testimony. Should the jury credit the bookkeepers statement that her entry was made in error, and dismiss Fredrick's testimony, the State would not have proved an element of money laundering, because there is no proof defendant attempted to conceal financial wrongdoing by deceitfully attempting to pay down a debt to the school."
The judges also wrote that they are "unpersuaded" with the Prosecutor's arguments that there was no Brady Act violation.
"Exhibit F was not in defendant's possession because it was created by the Prosecutor's Office's Financial Crimes Bureau Deputy Chief of
Detectives William Fredric Fredrick's
manipulation of the QuickBooks records, but it was material to defendant's
defense because it showed the State's reliance on the bookkeeper's entry to establish
defendant's money laundering. As the judge found, the bookkeeper's identity would not have been readily discernable upon examination of the school's records without substantial manipulation of the QuickBooks software. Creating Exhibit F involved manipulation of QuickBooks, as Fredrick
described at trial. The State produced S-89 and S-90 at trial, but withheld
Exhibit F, the second half of the audit trail, showing that the bookkeeper
made the entry pertaining to the return of the $200,000 to the 022 account... Thus... even if defendant manipulated
QuickBooks as Fredrick did, the fact remains the State did not disclose Exhibit
F––which it created––to defendant."
With this affirmation of a new trial, the case can not head directly to sentencing where the Prosecutors were hoping to seek a 12-year long prison sentence.
This affirmation does not guarantee that the matter is over now, however, this decision is hoped to be the end of Rabbi Eisemann's years long legal saga, as the defense team has previously stated that if the Appellate Division denies the Prosecutors appeal, it is likely that the Prosecutors will then agree to drop the case instead of actually holding a whole new trial.
The Tzibbur is asked to continue to daven for Osher ben Chana Frumet.
To join a FAA WhatsApp Group, click here.
To join the FAA WhatsApp Status, click here.
No comments:
Post a Comment