By Kevin Zwick
Staff Reporter
Capitolwire
HARRISBURG (Aug. 26) – Attorney General Kathleen Kane blamed her legal woes on two former top prosecutors who she claimed “corruptly manufactured” the grand jury investigation against her to prevent the release of thousands of pages of pornographic emails and protect their jobs and reputations.
Kane claims the two former OAG investigators, Frank Fina and Marc Costanzo, had “for years … viewed and distributed pornographic, misogynistic, racist, obscene and offensive emails using their state-owned computers,” according to a court brief she filed in November.
When she was set to release the pornographic emails publicly, she claims Fina and Costanzo “triggered this grand jury investigation, they made materially misleading statements to the court to obtain a protective order, and through their scheming they avoided public exposure.”
The claims from Kane were part of her failed effort last fall to quash the investigating grand jury and vacate grand jury Supervising Judge William Carpenter’s protective order barring Kane’s office from involving itself in the investigation. The filing was included in hundreds of pages of documents, unsealed by the state Supreme Court Wednesday, related to Kane’s legal woes.
Kane’s lawyers, Amil Minora and Gerald Shargel, argued Fina and Costanzo “secured the appointment” of special prosecutor Thomas Carluccio, and that Fina and Costanzo gave “materially misleading statements” to a judge about a trove of pornographic emails.
Contained in the unsealed documents, Carpenter, a Montgomery County judge, said he requested a special prosecutor to investigate an alleged leak from the Attorney General’s office based on private, sealed testimony from “two individuals with knowledge.” The alleged leak of confidential material about an abandoned investigation into former Philadelphia NAACP leader J. Whyatt Mondesire’s finances, which led by Fina and resulted in no charges, is the basis for eight criminal charges against Kane. Prosecutors say she leaked the information to retaliate against Fina, who she believed was the source behind an article criticizing Kane for dropping a sting investigation of several political figures in Philadelphia.
Kane has maintained her innocence. In her unsealed court filing, she argued she didn’t violate any law regarding grand jury secrecy because “she took no oath of secrecy with regard to those proceedings.”
As the grand jury investigating Kane was underway last year, Carpenter issued a protective order on Aug. 27, 2014, which impeded the Office of Attorney General’s involvement in the case. Kane claimed the protective order allowed Fina and Costanzo to keep their jobs as prosecutors “despite having themselves engaged in an ongoing course of potentially criminal conduct” – sending or receiving pornographic images on government computers. Her lawyers claim Fina and Costanzo may have violated a Crimes Code Section on obscenity.
“The grand jury proceeding and the related protective order are now preventing Attorney General Kane from investigating and potentially prosecuting Fina and Costanzo,” Kane’s November filing states. “As a result, these two men – peddlers of pornography and obscenity depositing state paychecks – are allowed to maintain their positions as Assistant District Attorneys in the Philadelphia District Attorney’s Office. This is an injustice of the highest order that cannot be allowed to stand.”
But Carpenter said, in an opinion filed Dec. 12 to the Supreme Court, that Fina had experienced “threats” from Kane’s office.
“Mr. Fina told this Court that he believed that these messages or threats were related to that fact that he had been subpoenaed to testify before the Grand Jury,” Carpenter wrote in his opinion explaining his reasoning behind the protective order. CLICK HERE to download the entire filing. Carpenter’s order starts around page 195.
In a hearing with Carpenter, Fina said he was told by a reporter that his “personal emails” were uncovered and Kane’s office was mulling the release of some of them, which could be “embarrassing.” In another incident, Fina said his former colleague, Christopher Carusone, was approached by a former top Kane aide, David Tyler, who told Carusone to “tell your boy to back down or cool down,” making references to Fina’s emails and that Fina should “keep his mouth shut.” Carpenter was told of a third incident in which another reporter contacted Fina to inform him the OAG was telling reporters his emails would “discredit him.”
A review of the emails showed they contained dozens of pornographic images, with titles including “blonde banana split,” depicting two women using a banana as a sex object, “Sarah Palin for President,” depicting the face of the former Alaska governor photoshopped on the heads of nude women, “motivational posters” showing women performing sex acts at the workplace, as well as racial jokes, remarks about gays, and images making fun of overweight women.
The nearly 400 pages of unredacted emails and images appear to have been sent or received by dozens of current and former law enforcement officials, including top agents of the Office of Attorney General, long-time Philadelphia police detectives, and county prosecutors, as well as private businessmen. It’s impossible to note where the emails and contents originated based on what the court made public.
The emails were included as an exhibit to Kane’s filing, and her legal team described them as “a small selection of the hundreds of similar emails sent and received by Fina and Costanzo from their state-owned computers.”
Carpenter also wrote Fina and Costanzo were subjected to intimidation when they arrived to testify at the one of the OAG’s offices where the grand jury operated. George Kadish, Carluccio’s special assistant, told Carpenter that when Fina and Costanzo arrived to testify to the grand jury on Aug. 26, they said there were four OAG agents “waiting for them, giving them ‘dirty looks.’”
“These agents followed the two men into the elevator and rode up with them to the third floor. While on the elevator, Agent [Mike] Miletto got face-to-face with Mr. Fina,” wrote Carpenter, noting the agents later on “singled out Mr. Costanzo and started to disparage him.”
The protective order’s “purpose was/is to prevent the intimidation, obstruction and/or retaliation, in the ordinary sense of those words, of any grand jury witness in an effort to inhibit and/or impede that witness from testifying truthfully and fully before the Grand Jury,” Carpenter wrote. “In fact, the testimony of Mr. Fina, Mr. Costanzo and Mr. [George] Kadish [Carulccio’s assistant] reveals that there were attempts, direct and indirect, by agents of the OAG to sway Mr. Fina’s and Mr. Costanzo’s testimony before the Grand Jury.
“It was the substance of the threats combined with the timing of those threats, i.e., when the OAG became aware that both men were subpoenaed to testify, that created an atmosphere of intimidation,” he added.
Kane spokesman Chuck Ardo said he had no knowledge of the intimidation incidents referred to by Carpenter. He also said the emails released by the Supreme Court do not represent a complete record of the once-deleted emails recovered by Kane’s office during its review of the Fina-led Jerry Sandusky child sex abuse investigation.
“These are some of those emails,” Ardo said. Senior attorneys at the OAG are reviewing the documents released Wednesday, he said. Kane is still seeking clarity on the release of “ancillary” materials for her defense, he said, but the release of which could still potentially conflict the protective order.
Kane’s filing focuses on Fina’s and Costanzo’s participation in the porno email chain, but doesn’t mention others who participated in sending or receiving the emails, as revealed in the documents unsealed Wednesday.
Fina and Costanzo are currently employed by Philadelphia District Attorney Seth Williams.
“The Philadelphia District Attorney’s Office has clear human relations policies, so the District Attorney believes that a thorough review is necessary of the email chains and any actions current office employees took in their distribution. We will conclude this review as soon as possible,” the Philadelphia District Attorney’s office said in a statement.
CLICK HERE to go to the Supreme Court’s website to view the newly unsealed documents.
Fina and Costanzo should be fired and Judge Carpenter belongs in prison.