In 1890, a legal lion cub named Louis Brandeis coauthored an article in the Harvard Law Review
titled “The Right To Privacy.” The article continues to resonate in the
age of Facebook, Stingrays, facial recognition and automated license
plate readers.
Three years later the young lawyer wrote
his fiancé that he had started thinking “about the wickedness of people
shielding wrongdoers and passing them off (or at least allowing them to
pass themselves off) as honest men.” He finally got around to writing
an article about that for Harper’s Weekly, titled “What
Publicity Can Do” 20 years later, three years before he made it to the
United States Supreme Court. “Sunlight is said to be the best of
disinfectants,” Brandeis said.
Louis Brandeis
Brandeis was very quotable.
“The right most valued by all civilized men is the right to be left alone.”
“If we desire respect for the law, we must first make the law respectable.”
“The only title in our democracy superior to that of President is the title of citizen.”
But the line about sunlight as a
disinfectant may be the one most quoted by contemporary lawyers. A half
dozen defenders in the many Twin Peaks cases have pulled it out of their
briefcases for example.
To some people, Louis Brandeis for
example, it seems obvious that justice should be transparent rather than
secret. Evidence and information should be exposed to the light,
Brandeis would have argued, rather than in a locked box guarded by an
inquisitor or a prosecutor. The odds in a criminal case should favor
defendants. The point of American justice is not to convict people who
might be guilty. The point is to protect people who are accused because
anybody can be accused.
Bernard E. DeLury, Jr.
Monday afternoon a New Jersey judge
named Bernard E. DeLury, Jr. (photo above) officially disagreed with
Brandeis’ sunlight metaphor. DeLury and Brandeis don’t often come up in
the same conversation. DeLury never wrote for the Harvard Law Review. He
went to law school in Camden and then he worked for a casino. Of course
he did.
Yesterday afternoon DeLury ruled that
former Pagans Ferdinand “Freddy” Augello must shut up about being framed
for the murder of the venerable, soon to be blessed, entrepreneur and
radio personality April Kauffman six years ago. DeLury thinks Augello’s
words are dangerous. DeLury thinks sunlight is dangerous.
DeLury’s intention is not to protect
Augello’s right to a fair trial. His intention is to protect prosecutors
and to conceal from the people of New Jersey and the United States who
actually killed April Kauffman, and why someone wanted to do that, and
how this mostly secret case came to be, and how much it cost and why
Freddy Augello got to be a scapegoat.
DeLury silenced Augello because Augello
asked questions like that and used the internal contradictions in the
evidence the government will use against him to answer the pretty
obvious questions that people in a democracy have a right to ask. DeLury
obviously thinks Augello is already guilty. So does most of the press
in Philly, New Jersey and New York.
From the government’s point of view,
from the press and the judge’s point of view, Augello was a
self-admitted Pagan. It is only logical that he should be treated the
way he has been treated.
“Look, Freddy. You were in the Pagans outlaw motorcycle gang. What else did you expect?”
The Justice Casino
Criminal justice has become the justice casino
in America largely because prosecutors play the role of the house and
criminal defendants must either just give it up or take their chances
playing the slots. There are prisons to fill. There are pockets to line.
There are careers to advance. There are trips to be taken to the south
of France.
Augello was basically offered life in
prison last week for pleading guilty. Or, he was told, he could
inconvenience the court by putting up a fight in which case the state of
New Jersey would take his life away piece by piece. Augello told the
prosecutors to come and get it.
Beyond doubt, the most poignant thing
about this case is that Augello still believes in the system. He wants
to go to trial. He thinks the worst is behind him. He thinks the worst
was the Swat raid when a squad of deluded cops who think they are Seal
Team Six wrecked his home, terrorized everyone in it, stole all his
stuff and threatened to kill his dog. Freddy thinks it is so obvious
that he is innocent that he is eager to get his trial over with so he
can go back to his old life.
Snitches
One of the people who will testify that
Freddy did it is a snitch named Andrew (Chef) Glick. Glick is a former
Pagan who actually got caught red-handed selling drugs and he has a less
idealistic view of the justice casino that Augello. Earlier this year,
the FBI arranged for a trustworthy, Toronto Star propagandist
named Peter Edwards to interview Glick. Glick told Edwards why he
suddenly remembered that Augello had arranged the murder of April
Kauffman. “I was looking at 40 years for weapons and drugs,” Glick
explained.
Edwards filled in the narrative: “The
FBI alleges that April Kauffman’s murder was arranged by her husband,
Dr. James Kauffman, a physician in Egg Harbour Township, N.J., and
members of the Pagan’s, including Glick’s former buddy Ferdinand
(Freddy) Augello, former president of the local Pagans chapter.”
“She was targeted for murder because she
threatened to tell authorities how her husband and members of the
Pagans were involved in a massive opioid trafficking ring, authorities
say. Her threats came in the midst of an ugly divorce from the doctor,
Glick said.”
This was not, according to DeLury, at all prejudicial to Augello’s case.
Another witness who will testify against
Augello at trial is a piece of work named Joseph Mulholland. According
to prosecutors, Joe Mulholland’s cousin Francis Mulholland actually
killed April Kauffman. Francis Mulholland conveniently died. Joe
Mulholland confessed that he drove his cousin to the hit because Freddy
Augello told him to do it. Joe Mulholland hasn’t been charged with
murder and he will not be. DeLury thinks the detail that Joe Mulholland
claims to have actually participated in April Kauffman’s murder taints
the case, in favor of the defense, so he wants that fact suppressed lest
it poison the jury.
The hour long ABC News special
broadcast about the case, promoted by the district attorney, that
featured interviews the district attorney and his chief investigator and
included details about the case that had not been released to the
defense, was not a problem when it aired a month ago.
But you know what is prejudicial in the
case? Freddy Augello’s Facebook page. That’s right. You know why it is
prejudicial? Because it unfairly asserts Freddy Augello’s innocence of
the crime for which he has been charged and it has published evidence
from the case that would tend to be exculpatory.
Yesterday DeLury said both Augello and
the prosecution must now stop talking about the case. DeLury said that
if Augello is allowed to comment on the case his remarks might
jeopardize his right to a “fair trial.”
By defending himself on Facebook,
“Defendant Augello has the potential to taint, prejudice and disqualify
an innumerable number of jurors,” Assistant Prosecutor Seth Levy told
the judge. “The only hope for a fair trial in this case is to stem the
current flow of discovery to the public.”
“Many of the witnesses made statements
of a derogatory nature toward or against the interests of such violent
organizations as La Cosa Nostra and The Pagan Outlaw Motorcycle Gang,
both of which are known to take violent retaliation against perceived
rats,” Levy said.
DeLury thought that made pretty good
sense. Particularly the part about telling all the prospective jurors
that the Pagans should properly be regarded as an “outlaw motorcycle
gang” equivalent to “La Cosa Nostra.”
The judge ruled, “the parties shall take
immediate steps to remove to the greatest extent possible any materials
and information that the parties have posted concerning this case that
remains under their control, such as personal social media sites, and
organizational or business websites, within 48 hours.”
That means only Augello’s Facebook page has to come down because it is under his control. Edward’s article can stay up. The ABC News special can be rebroadcast at any time. Every prejudicial, misleading, or untruthful statement by prosecutors that has been repeated in news media anywhere can stay up because the news media is separate from the local district attorney. Only Freddy’s Facenook page has to come down
That means only Augello’s Facebook page has to come down because it is under his control. Edward’s article can stay up. The ABC News special can be rebroadcast at any time. Every prejudicial, misleading, or untruthful statement by prosecutors that has been repeated in news media anywhere can stay up because the news media is separate from the local district attorney. Only Freddy’s Facenook page has to come down
Yesterday’s ruling was surreally
reminiscent of French poet Anatole’s France’s wisecrack that “the law,
in its majestic equality, forbids the rich as well as the poor to sleep
under bridges, to beg in the streets, and to steal bread.”
Augello’s trial is scheduled to begin September 11.
