Court blinks in Kathleen Kane case

Kane hearing recalls infamous PA court bribery scandal: In the Interest of McFall

by Bill Keisling

Despite a noisy political battle that’s been raging for more than half a year, the public still can’t read much in court documents about the case against Pennsylvania Attorney General Kathleen Kane.

Nevertheless, Kane won important victories last week at a hearing in Norristown — though you’d be hard-pressed to know it by reading the state press, or even the scant court documents available for public inspection.

Going into the hearing on April 27, Kane was accused of criminal contempt for firing one of her deputy attorneys general, James Barker.

A few weeks earlier, on April 10, Republican Montgomery County Judge William Carpenter appointed a three-judge panel, including himself, and scheduled the April 27 hearing, “to show cause as to whether (a protective) Order was violated” by Barker’s sacking.

“In the event that the Protective Order was violated,” Judge Carpenter wrote, “an Indirect Criminal Contempt Proceeding will follow forthwith.”

Needless to say, had AG Kane been found in criminal contempt in the present poisonous atmosphere, she would have faced perhaps insurmountable pressure to immediately resign from office.

This latest extraordinary crisis was averted by what amounted to garden variety lawyering by Kane’s attorney, Gerald Shargel, of the New York firm Winston and Strawn.

In a memorandum filed with the court before the hearing, Shargel apparently objected to Judge Carpenter’s appointment of the “three-judge panel,” and that unusual panel’s very lawfulness, and requested Carpenter recuse himself from the case. Kane’s lawyer also denied that Barker’s sacking had violated a valid protective order.

I say Shargel apparently objected to these things, because going into this hearing — which perhaps could end the career of the state attorney general without so much as a jury trial — none of the court filings in this very public case were available for the public to read.

Kane’s filing nonetheless caused Judge Carpenter to continue, or delay, his proposed contempt hearing, and to instead hold oral arguments on the issues raised by Kane and Shargel’s memorandum.

Since I planned to attend the hearing, I naturally wanted to read the court documents involved in the case.

But no such luck.

When I visited the website of the Montgomery County Clerk of Courts and typed the docket number (CP-46-MD-0000926-2015), as you would for any other normal criminal case in the commonwealth, I was informed no such case, or documents attached to it, exists.

I phoned the Montgomery County Clerk of Courts, only to be told no Kane documents were on file in the office. A secretary suggested I call the court prothonotary; but staff in that office likewise professed ignorance.

A prothonotary’s office clerk referred me to Montgomery County District Attorney Risa Vetri Ferman.

So I called the DA’s office. A secretary said she would take my message.

“You know,” I told her, “this is an important public case, involving the state attorney general. The public should be allowed to read the court filings.”

The secretary said someone would get back to me.

Of course, no one did.

So I found myself attending the hearing without the benefit of reading about the issues supposedly under “public review.”

The hearing itself, as you could guess by the aforementioned, was a memorable kangaroo court proceeding. A bailiff announced Judge Carpenter and two of his Montgomery County brethren judges. The three of them came in and took places at the bench up front.

While the three judges sat there, in front of a courtroom filled with lawyers for the Kane case, and a couple dozen reporters (the large courtroom was only about a quarter filled, if that) Carpenter announced, “I’d like to take a moment to do a sentencing.”

Thereupon a scruffy defendant in a jumpsuit and shackles was led before the three-judge panel and sentenced by Carpenter to one-to-three years for some domestic dispute, while the other two judges, the special prosecutor, and the rest of us looked on. The unhappy defendant was led away, cursing about the court, his public defender, and others; and I was left to wonder whether this poor fellow was sentenced by Carpenter, or the entire triumvirate.

It was ridiculous, and inappropriate, to hold this unrelated sentencing at the start of the Kane hearing. But it underscored just what is going on in Montgomery County: anything goes.

On the docket this morning we have a wife beater, a shoplifter, and the state attorney general, who’s been accused by the Philadelphia Daily News of giving them information for a news story. All rise.

Things only got more ridiculous, and surreal, in the Montgomery County courtroom.

The three judges suddenly got up and left the courtroom, perhaps to go to the john, to order lunch, to look for the missing Kane documents, or to consult the Daily Racing Form. We weren’t told.

After a few minutes the three judges came back in. Almost immediately, before he even had a chance to seat himself, Judge Carpenter complained that Kane’s “Memorandum,” mentioned above, wasn’t presented to the court in the form of a motion.

Carpenter then complained that Kane’s memorandum contained material “I did not unseal” from the secret grand jury stuff, implying that Kane couldn’t even raise these secret issues in her own defense.

Seated before the bench were Kane’s lawyer, Shargel, with his team of two other lawyers. To their left sat the Republican “special prosecutor” Thomas Carluccio, who’d been appointed by Judge Carpenter to go after Kane.

Lawyer Shargel began by telling Carpenter he had to get off the case.

Judge Carpenter, Shargel said, “displayed bias that should warrant disqualification and recusal,” by appointing the special prosecutor and then having private and one-sided, or ex parte, chats, or other communications, with his cats paw, Carluccio.

Carpenter sat there looking none too happy, drumming his lips with his fingers. He’s a white-haired man with a puffy face.

Shargel reminded the judge(s) that it wasn’t just a matter of improprieties that must stand the legal test, but the “appearance of improprieties that undermine public confidence in the courts.”

One of the reasons I wanted to read the invisible court documents was to see whether Shargel, an out-of-stater, cited the benchmark state case commonly mentioned by Pennsylvania lawyers in such circumstances: In the Interest of McFall.

McFall sprung from a notably outrageous Pennsylvania court corruption scandal that still draws snickers from writers, court watchers, and good-government types.

In the 1980s, members of the Philadelphia Roofers Union passed out bribes to at least eleven Philadelphia judges. The scheme was discovered by a FBI agent who happened to be visiting a judge’s office one day when a roofer brought in an envelope stuffed with cash and laid it on the counter for the judge.

The FBI promptly began an investigation, and several cooperating judges agreed to wear listening devices in their robes as they sat in court to hear cases.

In McFall (one of the victims was Anthony McFall), the state Supreme Court ended up vacating the convictions of those who appeared before the judges wearing the FBI bodytaps, as the judges were working for and with investigators, and not providing impartial, independent justice, or due process.

The 1991 McFall opinion, written by state Supreme Court Chief Justice Robert Nix, states, “The public confidence in the integrity of the criminal justice system will not be served by leaving unredressed the role of a judge in deciding key phases of criminal prosecution while also working for prosecuting authorities during the same period of time….

“…Appellees contend that as a result of (the judge’s) participation with federal authorities, defendants in her courtroom were denied due process of the law….

“We now focus on restoring justice to appellees whose rights to an impartial tribunal have been trampled upon and also to repair any damage to the public’s confidence in the courts of this Commonwealth. The circumstances in the instant case are such that this Court need not reach the constitutional issue of due process because we conclude that the appearance of impropriety compels us to affirm the grant of new proceedings in view of the blatant potential conflict of interest of the trial judge.

“In order for the integrity of the judiciary to be compromised, we have held that a judge’s behavior is not required to rise to a level of actual prejudice, but the appearance of impropriety is sufficient,” Nix wrote.

So that’s Judge Carpenter’s problem in the Kane case. Judge Carpenter isn’t just working for Kane’s special prosecutor: he’s working with him.

There’s more than one way to run a wire, and wires sometimes are invisible. Carpenter may not have a listening device in his robe, but is he nonetheless wired to Special Prosecutor Carluccio, as Pinocchio is strung to Geppetto?

Judge Carpenter not only appointed Special Prosecutor Carluccio to this case, but he also last month took it upon himself to appoint his two Montgomery County comrades-in-robes to oddly sit beside him in the Kane hearing.

Working as such with the special prosecutor to hound Kane all these months begs the question: is there an independent judge in this case, and is Kane being denied basic due process?

Kane’s lawyers, having argued that Carpenter should get off the case, then argued the other matters before Carpenter’s unusual trifecta tribunal.

Shargel argued that Kane had a duty to fire Deputy AG Barker, supposedly the subject of this hearing, and that Kane was merely doing her job.

“Barker wasn’t doing his job,” Shargel said.

Was the Montgomery County court supposed to be a “monitor or trustee” of the state attorney general’s office? Shargel asked. Should AG Kane have to come to Montgomery County Judge Carpenter for review and permission for even the smallest matter that comes up in the state AG’s office?

As for all the secret documents hidden from view in the case, Shargel said, “We have the right to have this information be made public.”

When it was his turn to speak, Special Prosecutor Carluccio laid into Kane. Carluccio is an unusually tall, severe-looking man with a balding head.

Carluccio assured the court they had Kane by the short hairs in this Barker firing business. He asked the judge(s) for permission to issue subpoenas so they could get to the bottom of Barker’s firing, and to further investigate the state AG’s office, including the office “reorganization” that supposedly led to Barker’s dismissal.

But that’s not what happened.

Within two hours of the hearing, Carpenter, acting alone, issued an order unsealing the long-secret grand jury presentment against Kane.

But then, just as strangely, Carpenter and the other two judges issued a second order turning the Barker matter over to District Attorney Ferman for “further investigation.”

There apparently would be no “Criminal Contempt Proceeding” against Kane before these three judges — Manny, Moe and Jack — conducted by their own appointed special prosecutor, anytime soon.

Then something else remarkable happened.

This week a minimal docket sheet showed up on the court’s web page, mentioning all the above.

Listed too is a “Montgomery County Court of Common Pleas Court Summary” of the case.

That page is blank.