Wednesday, January 29, 2014

Anastasia Wants To Get Off The Witness List

By Ralph Cipriano
for Bigtrial.net

George Anastasia would prefer to cover Salvatore Pelullo's fraud trial as a reporter, rather than having to testify as a witness in the case.

Pelullo's lawyer, however, has placed the veteran crime reporter on a potential witness list. And because potential witnesses are barred from being in the courtroom, Anastasia has been prevented from reporting on the United States of America v. Salvatore L. Pelullo et al. 

Today, however, a lawyer for Anastasia filed a motion for a protective order at the federal courthouse in Camden, seeking to knock the reporter off the witness list. A hearing is scheduled for 4:30 p.m. tomorrow in Courtroom 4D before U.S. District Court Judge Robert B. Kugler.

"J. Michael Farrrell, defense counsel for defendant Salvatore Pelullo, has listed award-winning reporter George Anastasia as a potential witness for the defense for the apparent purpose of preventing Mr. Anastasia from lawfully reporting about this trial," wrote Maxwell S. Kennerly of The Beasley Firm in a 10-page motion filed today.

"Any information that Mr. Anastasia possesses is the result of his news gathering activities," Kennerly wrote. "Mr. Anastasia does not possess any first-hand knowledge relevant to this case; he merely reported about the ongoing developments in articles that he penned for The Philadelphia Inquirer from the time search warrants were executed in the spring of 2008 until he left the paper in October 2012 ... Since leaving The Inquirer, Mr. Anastasia has been reporting on criminal trials on the website bigtrial.net."

"It's an important first-amendment issue," Anastasia said. "Anybody could manipulate the system by doing this. You could keep a reporter from covering a story if you didn't want him to cover it. All you have to is put him on the witness list."

Pelullo, an Elkins Park businessman, is one of seven defendants in the federal fraud case being tried at the federal courthouse in Camden. The most notorious defendant is mobster Nicodemo S. Scarfo, the son of jailed former Philadelphia mob boss Nicodemo "Little Nicky" Scarfo.

The government alleges that Scarfo and Pelullo orchestrated the systematic looting of a Texas-based mortgage company, FirstPlus Financial, by secretly taking  control of the board of directors in June 2007. Over the next 10 months, authorities allege, Scarfo and Pelullo helped themselves to $12 million. The money was spent to purchase luxury items such as an $800,000 yacht named "Priceless," a $200,000 Bentley, and a $200,000 downpayment on a $700,000 home in Egg Harbor Township.

In a previous big trial story, Anastasia laid out his differences with Pelullo and his lawyer:

On a personal note, I may not be able to cover the rest of the FirstPlus trial because Salvatore Pelullo has listed me as a potential witness and witnesses are not permitted in the courtroom during testimony ...

Pelullo's second attorney, J. Michael Farrell, would not say why I might be called and said he was reluctant to discuss the issue with me because I might tell the prosecution. In a brief discussion during the morning break, Farrell would offer not further explanation. I have never discussed the case with Pelullo's lawyers and am hard pressed to understand why I would be called as a witness ...

I told him, 'You don't want me on the stand.' He called that a `threat' and said I would remain on the list. 

Everything I know about this case has appeared in stories that I wrote for The Philadelphia Inquirer from the time search warrants were executed in the spring of 2008 until I left the paper in October 2012. I have probably written more about the alleged scam than anyone else.

But what I could provide as a witness for the defense is baffling ...

In his motion, Kennerly said the courts are usually protective of a reporter's First Amendment rights.

"Both this Court and the Third Circuit Court of Appeals have firmly held that news reporters enjoy under the First Amendment a qualified privilege for news gathering activities," Kennerly wrote. It's a "privilege premised on the principle that compelled production 'can constitute a significant intrusion into the news gathering and editorial processes' and 'may substantially undercut the public policy favoring the free flow of information to the public.'"

"Aditonally, New Jersey statutory law expressly confers a privilege on any person engaging in news gathering activities," Kennerly wrote. "George Anastasia is considered a news reporter as defined by New Jersey statutory law and any information that he possesses is subject to this reporter's privilege."

To overcome a reporter's qualified privilege, Kennerly writes, Pelullo's lawyer has to demonstrate that he tried to get this information from other sources, that the information is only available through the journalist and his sources, and finally, that the information sought is crucial to the case.

"Since defendants have failed to show that any testimony they expect Mr. Anastasia to provide meets any of the criteria necessary to overcome his newsperson's privilege, he must be removed from the witness list," Kennerly concluded.

In an 8-page opposition motion, however, attorney J. Michael Farrell argues that Anastasia's First Amendment rights must be balanced against "countervailing interests," and may be outweighed by the "evidentiary needs of a criminal defendant."

"Mr. Anastasia possesses relevant knowledge and has admissible testimony to provide constitutionally necessary to the defense of defendant Pelullo and other defendants," Farrell writes. "Defendant Pelullo has a good faith basis for identifying Mr. Anastasia as a potential defense witness in support of his defense, in part, that he is not and has never been an associate of any organized crime family."

"Mr. Anastasia is the most eminent, knowledgable and long-standing investigative journalists on Philadelphia and New Jersey organized crime and had never received information of any kind linking Mr. Pelullo to those groups until, at the earliest, 2006."

 

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