Friday, February 20, 2015

Criminal charges recommended for AG Kane include contempt of court


HARRISBURG - The investigation into alleged leaks of confidential information by Pennsylvania Attorney General Kathleen Kane was conducted legally and should be allowed to proceed, the judge who oversaw the case argued in legal papers Wednesday.

"The truth is crying to be heard," Montgomery County Court Judge William R. Carpenter wrote of the case against Kane.

Carpenter's filing comes as Kane is asking the state Supreme Court to throw out criminal charges that a statewide grand jury recommended against her late last year. Kane is contending that Carpenter overstepped his authority last summer when he named a special prosecutor to investigate her office for the alleged leak.

The grand jury examined allegations that Kane had leaked secret grand jury information to the Philadelphia Daily News about a 2009 case that had been handled by one of her political foes.

Documents in the case unsealed last month show that the panel recommended that Kane, a Democrat, be charged with perjury, false swearing, obstruction, and official oppression.

In his 28-page filing, Carpenter wrote that the panel also recommended charging Kane with criminal contempt.

The disclosure is significant because Kane and her lawyer, Lanny Davis, have contended that the special prosecutor in the case failed to unearth evidence sufficient to charge Kane with contempt of court. Instead, they noted, the special prosecutor recommended charges of perjury and other offenses. This, they said last month, proved that she did not violate the law for the leak itself.

At the time, Davis called such charges "the last refuge of a desperate prosecutor who has struck out."

In a statement Wednesday night, Davis said he believes that Carpenter's filing used words that indicate he has already pronounced Kane guilty, demonstrating "what we have said for some time: The investigation of Kathleen Kane has been nothing more or less than a selective, biased investigation that seems to have abused the Grand Jury process."

Davis, in an interview, reiterated that he has not yet seen the grand jury's presentment, which is still secret. He called on Carpenter to explain why previous documents he authored in the case did not list the contempt charge.

After the grand jury recommended charges against Kane, Carpenter sent the case to Republican Montgomery County District Attorney Risa Vetri Ferman, who was to decide whether to file charges.

Last month, the high court placed a stay on any prosecution until legal arguments are heard on the underlying issue of whether Carpenter had the power to appoint the special prosecutor, Montgomery County lawyer Thomas E. Carluccio.
Kane has admitted that she shared information with the Daily News, but said she did so in a lawful way.

In his filing, Carpenter, a Republican and former top prosecutor in Montgomery County, called the grand jury that recommended charges against Kane "a diverse group of honest, diligent, hardworking American citizens."

The judge also argued that both state law as well as past high court opinions gave him the authority to name a special prosecutor. Moreover, he wrote, state law allows a court to exercise "whatever power is necessary to be able to function as a court."

In this case, Carpenter argued, there was an allegation that someone in the Attorney General's Office - possibly Kane herself - had leaked secret grand jury information to the Daily News about a 2009 case that had been handled by Kane's Republican predecessors.

Normally, the Attorney General's Office would lead the statewide grand jury investigating a possible leak. Because of the inherent conflict, however, Carpenter said he appointed a special prosecutor to independently investigate the matter.

"Without the ability to investigate a breach in a nonpartisan manner, the administration of justice would clearly be frustrated," Carpenter wrote.

Carpenter said Kane was seeking special treatment simply because she is the attorney general.

He said she was trying to "suppress all evidence against her" before a criminal complaint had even been filed, before any court hearings had been held, before Montgomery County prosecutors had even evaluated the case.

"No other citizen would be granted such relief and citizen Kane should be treated no better than any other citizen," the judge wrote on his opening page.

Carluccio, in a separate 60-page filing Wednesday, pointed out that Kane did not challenge his authority to investigate potential leaks throughout his nearly seven-month-long inquiry. He noted that Kane even appeared and testified before the grand jury last fall.

"It was not until it became clear to the attorney general that her true activities, and involvement, in the illegal disclosure of grand jury information had been discovered by the grand jury that she sought to challenge the legality of the investigation," Carluccio wrote.

Kane has relied heavily on a state Supreme Court ruling that invalidated a special prosecutor and special grand jury set up five decades ago in Philadelphia. Carpenter argued that was inapplicable to the Kane investigation, and had been superseded by more recent high court opinions.

Oral arguments on the matter before the high court are scheduled for March 11 in Philadelphia.


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