Bernard DeLury and Louis Brandeis

OFF THE WIRE

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.

Facebook

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

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.