KEISLING: Kane preliminary hearing: an embarrassment in a free society

Political show trial pits Philadelphia newspapers and corrupt state officials against an alleged news source

The unholy alliance between the courts, the political establishment, and Pennsylvania newspapers gave Kathleen Kane’s preliminary hearing the air of a show trial held by a corrupt and repressive regime, which after all perhaps it was.

by Bill Keisling

In any other U.S. state but Pennsylvania, this week’s court hearing in Norristown would have been about whether Philadelphia Daily News reporter Chris Brennan should be jailed for protecting his source for a news story.

Instead, reporter Brennan months ago readily divulged his supposed source for an article he wrote in 2014. Brennan curiously sang full-throat, like a canary, to a grand jury.

As a consequence, the preliminary court hearing this week was about whether Pennsylvania Attorney General Kathleen Kane should be jailed for allegedly giving information to reporter Brennan.

All this not only shows that some of Pennsylvania’s oldest newspapers and their reporters are in league with AG Kane’s political enemies in the courts…

It also shows that these reporters and their newspapers these days feel they are bound by no journalistic ethics whatsoever.

That Pennsylvania newspapers aren’t talking about these serious journalistic lapses and lack of independence from court officials, let alone debating them, speaks volumes.

The newspapers openly hope to help court officials throw the state attorney general out of her job, and into jail.

As such, Monday’s preliminary hearing against AG Kane in Norristown was a farce, and an embarrassment.

It was embarrassing all the way around.

Kane’s political and personal antagonists in the courts and in the press hoped the hearing would be embarrassing for her. And perhaps it was.

But mostly the hearing was an embarrassment for Pennsylvania and its troubled courts, and the state’s dying corporate newspapers.

At Kane’s preliminary hearing, witnesses could see the sorry spectacle of what things would look like, not only if American courts ran the newspapers, but if newspapers ran the courts.

And it wouldn’t be pretty.

At the start of Kane’s preliminary hearing, about one hundred reporters packed the five rows of benches in the Montgomery County courtroom.

The prevailing sentiment among the reporters, as expressed by a harried, gray-haired radio reporter who sat on the courtroom bench next to me, was that, “Hopefully Kane will waive the preliminary hearing.”

The hope was that Kane and her lawyers wouldn’t contest anything at the hearing so that the reporters would only be tied up for fifteen minutes or so. They then could file their pre-conceived stories that the attorney general was headed for trial, retirement, and perhaps jail.

The old boy reporters then could repair to a bar for a well-deserved drink, slap each other’s backs, and swap ribald jokes.

It turns out the law, due process, and legal procedures are tedious for these confused and lazy Pennsylvania reporters, and above their pay grade, and level of comprehension.

Law, after all, is a tedious process, grinding, as the old lawyer’s saw goes, slowly, and exceedingly fine.

Most of the reporters present at the hearing, it was apparent, would just rather get on with the main event: Kane’s public execution, and silencing.

A public stoning, after all, would be much easier to cover than a legal hearing.

These bobble-headed reporters preferred that someone would simply shoot the dog — or in this case, the bitch — so they would not have to think too deeply nor worry too much if at all about the adjudication of whether the dog should be taken out and shot.

And so the reporters were sorely and visibly disappointed when it became apparent that Kane and her defense team were actually going to contest the evidence and the two witnesses presented by the prosecution at Monday’s preliminary hearing.

You could hear some of the reporters groaning as Kane’s lawyer began to ask questions.

The hearing that began at 1 pm dragged on for more than four hours, until after five.

Only fifteen or twenty minutes into the hearing, by 1:30 pm, when it became apparent that Kane’s lawyer, Gerald Shargel, was going to challenge everything and everyone, reporters began to drop out and leave the courtroom.

By a half an hour to an hour into the hearing at least a quarter of the impatient reporters were gone, leaving large gaps in the once-filled benches.

The nub of the unseemly case against Kane, as I say, is whether she leaked information to Philadelphia Daily News reporter Brennan for a 2014 news article.

But Daily News reporter Brennan didn’t testify at the preliminary hearing against the attorney general. Were thankful court officials protecting Brennan? one had to wonder.

Though he remained unseen, reporter Brennan was mentioned frequently at the hearing.

The testimony of the two law enforcement officials on the stand centered chiefly around how reporter Brennan found himself in possession of an envelope from the AG’s office.

Unspoken at the hearing was that reporter Brennan and his newspaper were, and continue to be, of invaluable service to the court officials and political enemies now merrily prosecuting AG Kane.

Reporter Brennan testified at the grand jury against Kane, and presumably will take the stand against her at trial.

All this of course is quite odd, and unseemly.

As I say, in any other state, where the newspapers and courts both are healthy, and keep each other at arm’s length, this hearing almost certainly would have been about whether a reporter like Brennan should be jailed for protecting his source, and not whether the source should be jailed for providing information to the reporter.

But not in sick Pennsylvania, where ethics and decency are these days regularly turned on their heads.

The willing role of reporter Brennan and his newspaper to sell a source down the river was just one of the biggest unspoken outrages of this entire unseemly hearing.

This unholy alliance between the courts, the political establishment, and Pennsylvania newspapers gave Kane’s preliminary hearing the air of a show trial held by a corrupt and repressive regime, which after all perhaps it was.

If the newspaper reporters make lousy lawyers, it was also apparent that state court officials would make even worse newspaper publishers.

This wholesale dishonesty about what was going on between the courts and the newspapers only bred more dishonesty.

By giving the Daily News information about her “political enemies,” the prosecutors contend, Kane was, in the words of a judge or a court official, “seeking retaliation.”

When a court or a government runs a newspaper, as we would be led to believe from this Montgomery County / Philadelphia Daily News joint venture against Kane, no one ever comes to a newspaper to provide his or her side of a story, as Kane allegedly attempted to do.

If you did, you would be prosecuted for conspiracy for “seeking retaliation,” as Kane now finds herself.

All this gave the preliminary hearing against AG Kane the strange and unsettling feel of a show trial hosted by an authoritarian state like China, or some Eastern-block nation.

It all seemed jarring in suburban Philadelphia, ten minutes down the road from Valley Forge, a birthing place of American independence and liberty.

Kane herself seemed almost stoic and accepting at her preliminary hearing.

She sat quietly behind the bar most of the time with her head down, wearing eyeglasses, apparently reading.

In person the attorney general seems diminutive, even demur.

During a break I ventured to the bar to ask Kane whether Daily News reporter Brennan received witness fees for his cooperation with prosecutors.

Kane smiled, and said she didn’t know.

This hearing had the air of a political show trial, I told her.

“My lawyers says he’s never seen anything like it,” she replied. “That’s why I’m fighting.”

A woman’s place

Also noteworthy was the predominant role of women at the hearing. To avoid the unpleasant truth about what was really going on — the persecution of a woman — two women were appointed to handle Kane’s hearing.

Montgomery County District Attorney Risa Vetri Ferman, the old boys’ cats paw in this affair, was nowhere to be seen. “She’s running for county judge,” the radio reporter explained to me. “You won’t see Ferman here.” In her place another woman, Michelle Henry, a prosecutor from neighboring Bucks County, had been brought in to handle the case against Kane, assisted by MontCo First Assistant DA Kevin Steele.

The local district judge presiding was also a woman: Cathleen Kelly Rebar.

So together these two women, Henry and Rebar, set about the job of taking down Kane, the most successful woman in Pennsylvania political history.

Kane easily appeared to outclass the two other women, both in the way she handled herself, and her ability to spin the law, and the hearing. Kane moved through the courtroom like some spectral and mysterious figure in a blood-red dress, while the other two plodded along.

Prosecutor Henry came across as shrill and testy, the sort of woman lawyer these days who are a dime a dozen in divorce proceedings and sexual assault hearings. She’d predictably puff herself up, hands on her hips, and pretend to some indignation when, after all, of course, it was an act, and not a very good one.

District Judge Rebar, on the other hand, though poised and youngish, simply was out of her depth in the points of the law. “Show me where that’s on the books,” she repeatedly told Kane’s lawyer. Various times Rebar would furiously thumb through a book on criminal procedure before her, searching for guidance.

And so these two work-a-day women, Rebar and Henry, went about their appointed job, with not much grace, learning or thoughtfulness, of knocking Kane from her high pedestal.

Kane’s lawyer, Shargel, meanwhile, contentiously attempted to have the charges against his client thrown out.

The conspiracy charges against Kane made no sense, Shargel told District Judge Rebar.

Where are the other conspirators? he asked. What was the conspiracy?

“Parties (in a conspiracy) who are agreeing have to know what they are agreeing to,” he pointed out.

Montgomery County First Assistant DA Steele held aloft grand jury transcripts and countered that Kane’s own grand jury testimony elaborated on her discussions with her former aide, Adrian King, to send a package of information to Daily News reporter Brennan.

“Kane by her own words says she spoke with Adrian King about doing this,” Steele said. That was the “conspiracy.” ???

Moreover, the prosecution’s case doesn’t make sense, Shargel countered.

If Kane’s desire was to seek “ret aliation”against former Corbett prosecutor Frank Fina, as court officials allege, Shargel offered, there was an “easier and quicker way” to retaliate against Fina than to arrange a package drop to newspaper reporter Brennan.

“Fina had a pornography collection of thousands of emails,” Shargel said at the close of the hearing.

If Kane was seeking retaliation against Fina, she could simply release his porno emails.

Magistrate Judge Rebar countered that that had nothing to do with the charges at hand, even though she was aware from press reports that Kane’s defense was “wedded” to the stash of porno emails.

Rebar, instead, pointed out that, in Pennsylvania, preliminary hearings are almost always perfunctory affairs, meant to test whether prosecutors have met the bare minimum, “prima facie” requirements for the charges and the defendant to stand trial.

Prima facie meant “at first blush,” Rebar explained.

And there was certainly a lot of blushing at this hearing.

“I will determine that the commonwealth has met their burden in all charges,” Rebar finally announced at the close of the hearing.

With that, the case now moves to a jury.

Those looking for evidence about how far the state of Pennsylvania and its press have fallen, and continue to fall, will do well to pay attention to the coming trial.