There have been numerous legal filings concerning the actions of state Attorney General Kathleen Kane, including criminal charges against her. In addition, there have been many disclosures that employees and former employees of the Attorney General’s Office have been sending and receiving obscene emails with many others, including members of the judiciary. Many of the senders were employees on staff of the attorney general prior to Kane taking office.
In this flurry of charges and counter-charges, the bar and the courts have side-stepped a major issue. There is substantial evidence that employees of the attorney general have been communicating privately with the judiciary. This includes attorney general personnel and judges involved in both civil and criminal cases. A number of people have been dismissed from employment, or have retired. There are many others still employed in the Attorney General’s Office or in other prosecutors’ offices. What was the extent of these communications? How many attorney general personnel and members of the judiciary were involved? These figures, and the identity of the people involved, have never been fully disclosed. The fact that such people may no longer be employed by the attorney general or are no longer a member of the judiciary should not be a reason for not making an inquiry. What effect has the private communications had on what should be the arm’s-length relationship between the prosecutor and the court?
The Pennsylvania Supreme Court acted swiftly in response to the allegations involving former state Supreme Court Justice Seamus McCaffery. Since then there has been no reaction from the judiciary. This is not a one-event situation. These communications have been continuing for several years. This has surely affected the separation of powers between the executive branch and the judiciary. The executive branch may have polluted and seriously affected the judiciary.
Former Chief Justice Ronald D. Castille, in an interview with the Philadelphia Daily News, “said the emails, if judges exchanged them, could cause problems two ways under the state’s Judicial Code of Conduct. First, using state computers to exchange the emails would violate that code. A conflict of interest is also possible if a judge exchanged explicit emails in private with a prosecutor who also appeared in his court to argue cases.” Castille told the Daily News, “If you’re emailing back and forth with the Attorney General’s Office as a judge it might show you have a conflict that will require you to recuse yourself from these cases.”
The Supreme Court has the power and the duty to assure the bar and the public that the judiciary will remain independent, and not suffer from such compromise. Presently there is no reaction from the bench or bar; they all seem to be awaiting the outcome of the Kane prosecutions. The Kane prosecution should not prevent the Supreme Court from cleaning up the situation caused by these questionable private communications. The Supreme Court must determine the relationship between the senders and the recipients, and what effect those private relationships have had on the independence of the courts, and what effect those relationships had on civil and criminal cases in which those individuals were involved. What other private relationships exist aside from the sending of pornographic material? Criminal and civil defendants, and civil claimants, are entitled to a fair shake, and entitled to a prosecutor who is only dealing with the merits of a criminal or civil prosecution, and is dealing on an arm’s-length relationship with the court. This includes the grand jury process, which is very vulnerable to relationships developing between the prosecutor and the grand jury judge. It is time to stomp out these informal private relationships.
I urge that the Supreme Court take steps as it did in the McCaffery affair, but to go further and appoint a special counsel to examine what effect these private communications had on cases before the courts. The special counsel would have the power to empanel a grand jury, summon witnesses, and make findings that would assist the Supreme Court. The special counsel should have the mandate and power to interview the senders and the recipients of these emails, and determine what other private relationships exist.
I do not suggest that the special counsel cause a grand jury report to be issued. These reports are simply a judicial fiction, are written by the prosecutor, and should be abolished by the legislature. The Supreme Court should hear an unvarnished report from its appointed special counsel, be able to speak and communicate with that person on a lawyer-to-client basis, and not be confined to a grand jury report.
I suggest that the special counsel position be given to an attorney with a demonstrated reputation for investigative skill and independence, preferably from outside of Pennsylvania. I also suggest appointing a judge with the reputation of skill and courage as a supervising judge as required by the statute. Many jurists have not lived up to the requirements of supervising judge.
It is time for the Supreme Court to put this tawdry affair to rest, move beyond the allegations and counter-allegations of the Kane prosecution, and address a major issue: the corruption of the judiciary.
Peter F. Vaira is a member of Greenblatt, Pierce, Engle, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at email@example.com.
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