By Kevin Zwick
Staff Reporter
Capitolwire
HARRISBURG (Jan. 21) – State Supreme Court Justice J. Michael Eakin’s legal team says bawdy emails the judge received but didn’t send or forward should not be admissible as evidence at the judge’s misconduct trial.
If they were admissible, his legal team would attempt to call a list of witnesses who also received emails, including two sitting Supreme Court justices and over a dozen lower court judges, said Eakin’s lawyer, William Costopoulos.
“The receiving of these emails isn’t any conduct at all, sending is conduct,” Costopoulos said Thursday during a pre-trial conference before the Court of Judicial Discipline. “Our intention is to deal with the tip of the iceberg.”
If the court determines the “unsolicited emails” are admissible, Costopoulos said “I fully intend to do what I have to do just to be fair,” even if that means dragging more judicial officials into an ongoing email scandal.
It’s unclear, however, if the court would allow judges to be called in as witnesses which is restricted by judicial rules, but Costopoulos intends to argue for a three-judge panel of the CJD to rule on the issue.
The JCB has 30 days to file a trial brief and Eakin’s lawyers have an additional 30 days to respond, the panel ordered Thursday.
Eakin, 67, was temporarily suspended with pay from the high court in December and has apologized in public statements and before the CJD.
Using a private email account, Eakin sent 18 emails to a group of “golfing buddies” and a former state prosecutor that contained “nudity, gender stereotypes and ethnic stereotypes,” according to the Judicial Conduct Board’s misconduct allegations filed in December.
The Board’s complaint also listed dozens of emails that Eakin received but did not forward or send.
“By sending and receiving emails from 2008-2014 containing the aforementioned content, i.e., attempted humor based upon pictures of nude women; sexually-suggestive themes; gender stereotypes; homophobic content; socioeconomic stereotypes; violence towards women; race and/or ethnicity; and stereotypes of religious groups, Justice Eakin engaged in conduct so extreme that it brought the judicial office into disrepute,” the Judicial Conduct Board alleged.
Some of the exchanges included former OAG prosecutor Jeffery Baxter, a life-long friend of Eakin’s, and were captured on Office of Attorney General servers because Baxter used his government email address, the JCB said.
Attorney General Kathleen Kane released some of Eakin’s emails and thousands of others as an attack on what she has called the “old boy’s network” throughout the legal and law enforcement communities. She hired outside counsel to pour through hundreds of thousands of emails.
Eakin’s wife, Heidi, who serves as defense co-counsel, gave reporters a full-throated defense of her husband, saying blame should be laid on who throws the punch, not the person who is punched.
“Blame him for what he did, not what was done to him,” she said. She acknowledged that as a judge, Eakin should be held to a higher standard. But she said he also has the right to a private life.
Costopoulos concurred: “They are held to a higher standard, they have every reason to be held to a higher standard. But they do not live in monasteries and they are human.”
Lynn Marks, head of the court watchdog group Pennsylvanians for Modern Courts, said the focus should be on the emails that were forwarded or sent. But, she said, “a judge has to be aware that they are held to a higher standard.”
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