NAME THAT PARTY: Leak of grand jury information could cost Attorney General Kane

11/24/2014

HARRISBURG — As an assistant Lackawanna County prosecutor, Kathleen Kane testified at the 1999 trial of Judge Francis Eagen, charged with taking bribes. He had sought information about the investigation, she said, and she told him that grand juries operate in secret and their “strict rules” cannot be violated.

“For me to give out information to somebody who is not going into the grand jury is actually a criminal offense,” Kane told the jury.

The panel found Eagen guilty of obstruction.

Fifteen years later, a statewide grand jury in Montgomery County is investigating whether Kane, 48, of Clarks Summit, now state attorney general, leaked a grand jury's information to a Philadelphia newspaper. If Judge William Carpenter determines she did and finds her in contempt of court, Kane could be sentenced to six months in prison.

Other potential criminal exposure for Kane is hindering prosecution, obstruction or perjury, depending on the facts and her testimony, experts say.

At the least, they note, she has risked her credibility as a prosecutor and tarnished her political image.

Kane and her attorneys insist she did nothing wrong. But they acknowledge that she knew her office this year released an internal memo from a 2009 investigation of a political activist, J. Wyhatt Mondesire.

The probe never resulted in criminal charges. Mondesire could not be reached for comment.

Kane's defense sounds like she has “one foot on a banana peel,” said Northampton County District Attorney John Morganelli, who otherwise is supportive and sympathetic.

Before heading into the grand jury last week in Trooper, near Norristown, Kane told reporters that releasing information to the Philadelphia Daily News “was done in a way that did not violate statutory or case law regarding grand jury secrecy.”

The leak suggested that former Chief Deputy Frank Fina, who is at odds with Kane, did not aggressively pursue the Mondesire case, The Philadelphia Inquirer reported in September.

Kane did not commit a crime, nor did she cross an ethical line, her lawyer, Gerald Shargel of New York City, told reporters.

“Prosecutors view preventing leaks out of the grand juries as one of the most serious things they handle,” said Bruce Antkowiak, a former federal prosecutor who heads the criminology, law and society program at St. Vincent College near Latrobe.

In a U.S. Attorney's Office, “the place goes into a shutdown if they think there's a leak of grand jury information,” he said.

LEAKS, LEAKS, MORE LEAKS

Even if the grand jury does not recommend criminal charges, “this is not something that will sit well with the community of prosecutors,” Antkowiak said. Leaking grand jury information “is a blow to the credibility of any prosecutor.”

Grand jury secrecy protects defendants, witnesses and the integrity of an investigation, Antkowiak said.

The Montgomery County grand jury, run by a special prosecutor, was authorized by the Pennsylvania Supreme Court.

“It is interesting that certain reporters have spent thousands of words rewriting stories about the attorney general's alleged illegal leak when they ignore the plain language of the law about what is or is not grand jury information, and who is or who is not covered by the Grand Jury Secrecy Act,” said one of Kane's lawyers, Lanny Davis, a crisis communications specialist who helped President Bill Clinton.

“Yet they have ignored all the leaks they are receiving about grand jury information concerning this current grand jury,” Davis said. “Is it possible the reason they are ignoring that story is because they are the recipients of the leaks?”

There is precedent in Pennsylvania for a jail sentence for contempt stemming from a grand jury leak.

In 2007, James Kolojejchick, a former agent in the Attorney General's Office, was sentenced to 10 days in jail for violating a grand jury secrecy oath by making information available to a newspaper. The judge, Barry Feudale, pushed for stiffer penalties for such violations. The Supreme Court raised the maximum to six months.

PUBLIC RELATIONS DISASTER

Kane has insisted that court orders prevent her from telling the public the full story.

Voters might not understand the ins-and-outs of grand jury leaks, but the appearance that Kane is immersed in a serious legal battle is not good for her political image, said Jack Treadway, former political science chairman at Kutztown State University.

“When someone keeps showing up in these messes, it's not just a coincidence,” said Treadway, referring to a string of political difficulties for Kane, including her decision not to prosecute Philadelphia lawmakers who took cash from an undercover lobbyist, and an ex-traffic court judge who accepted a $2,000 bracelet, because she claimed the videotaped encounters were legally flawed.

“If you've done nothing wrong, you don't need all these high-powered lawyers coming in,” Treadway said in reference to Shargel, one of the top criminal defense lawyers in New York and Washington-based Davis, who was Clinton's special counsel.

Kane's appearance before the grand jury started another bad week for her, some observers said.

“The attorney general has certainly had a few bad days in what has been a tumultuous year,” said Chuck Ardo, former press secretary for Democratic Gov. Ed Rendell. “While we don't yet know whether her legal judgment in deciding not to prosecute in the public corruption case was sound, what we do know is that it was a PR disaster.

“In the same vein, hiring a high-powered criminal defense attorney and a well-known crisis manager to represent her in the grand jury leaks investigation sends the wrong message,” Ardo said. “Whether she is found to have violated the law or not, she has created the appearance of impropriety. Her status as a rising political star has dimmed considerably.”

Said Davis: “Only those who have a biased perspective would say that a public figure unfairly attacked, who is unable to respond due to a court order, would say that the public figure had a ‘bad week.' ”

‘ONE THING AFTER ANOTHER'

The day after her grand jury appearance, Kane implied for the first time, in a CNN interview, that child pornography was included in the email scandal centered in the Attorney General's Office. Her aide Renee Martin backtracked the next day, saying the material did not rise to the level of child porn and was not prosecutable.

The day after that, Martin doubled back: “When I said that the Pennsylvania attorney general has decided not to prosecute regarding the emails as pornography, including depictions of children contained in some emails, I misspoke.”

On Thursday, the Pennsylvania Turnpike corruption case Kane touted in early 2013 ended with guilty pleas by two final defendants. Her office agreed to plea bargains for all eight men charged; none will go to prison.

It was a tough case, said former Senior Deputy Attorney General Laurel Brandstetter, who resigned in August. Brandstetter often was the only state prosecutor against a dozen or more defense lawyers in the case.

“We often know corruption is going on. Proving it is a different story,” she said when asked whether the outcome disappointed her.

No single incident — such as dizzying press statements — has much impact on the public's perception of Kane, said Kyle Kopko, a political science professor at Elizabethtown College.

“People misspeak all the time,” Kopko said. The problem for Kane is “it's just one thing after another.”

In an email to other district attorneys, Morganelli cited troubling issues not just for Kane.

“If our elected AG can just be the subject of court orders barring her from speaking, investigating, etc., I would like to know on what authority, and who asked for it and why? This should be a huge concern of all of us,” Morganelli wrote. “I know many of you do not like Ms. Kane, or feel that she is not doing the right things, but what is happening to her and what she is saying or not being able to say scares me.”

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