Star-chamber justice in Pennsylvania

It’s time to unseal and make public the presentment against PA Attorney General Kathleen Kane

by Bill Keisling

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman,” U.S. Supreme Court Justice Louis Brandeis wrote.

But that policeman hasn’t been on the job in Pennsylvania, and hasn’t been for some time.

The public’s confidence has again been shaken by yet another scandal involving the state courts, or the state’s chief law enforcement executive: the attorney general.

This time the public gets a twofer: the same sorry spectacle involves both scandal-plagued institutions.

With the Jerry Sandusky affair, state leaders brought us a self-censoring scandal, one so bad we couldn’t talk about it in mixed company, in front of children.

This time around state leaders have somehow managed to outdo themselves yet again. This time they have brought us a scandal the public can’t even clearly think or speak intelligently about, because we have no clear idea what the scandal is about.

After months of leaks in the press, innuendo, and overtly bare-knuckle partisan politics, the Pennsylvania Supreme Court on January 22 released 80-some pages of court papers announcing what most have already read through those newspaper leaks: a grand jury has issued what is known as a presentment recommending criminal charges be filed against Democratic Pennsylvania Attorney General Kathleen Kane.

In Pennsylvania, grand juries don’t issue indictments. They issue presentments. What exactly then is the grand jury presenting against our attorney general?

It’s not at all clear.

The public doesn’t know because the courts have strangely sealed the presentment, as well as issued gag orders involving related issues.

The secrecy concealing all this from public view has itself become a scandal, perhaps greater than the underlying controversy.

In the scant papers released last Thursday there’s an opinion written by a supervising judge, William Carpenter, who mysteriously writes that a state grand jury has recommended Kane be charged with “perjury, false swearing, official oppression and obstruction.”

AG Kane, ironically, has not been accused of leaking grand jury material, which reporters from the Philadelphia Inquirer for months have breathlessly accused her of doing. The Inquirer oddly has been complaining that Kane gave grand jury material to its corporate sister, the Philadelphia Daily News, even as the Inquirer duplicitously published leaks from the same grand jury.

After the release of the 80 pages of mystery court papers, Kane’s pugnacious spokesperson and attorney Lanny Davis issued a statement saying the supposed case against Kane was “targeted, one-sided, biased and, I believe, highly politicized.”

Davis writes, “This entire process seems more today than ever before a railroad train with biased misuse of the Grand Jury system. There have been, as we all know, massive leaks from this Grand Jury process, that Attorney General Kane is guilty of illegal leaks.”

But the special prosecutor appointed by the court, Thomas Carluccio, a Republican, Davis points out, “failed to obtain evidence that the attorney general illegally leaked documents.”

“Now we know why the special prosecutor went to such lengths to keep these papers sealed,” Davis goes on. With the light of day, everyone now knows he failed to obtain the recommendations (for a criminal charge from the grand jury) of illegal leaking that he sought from the beginning.”

All this, Davis writes, “leaves me with the firm impression that this investigation of Attorney General Kane has been largely driven from the beginning by angry men, many of them embarrassed by extreme pornography found on their state-paid-for computers sent during office hours; men who an outside legal expert described were responsible for ‘inexcusable delay’ in getting child predator Jerry Sandusky off the street; men who are on a political vendetta against the first elected female Attorney General ever in Pennsylvania.”

Davis himself, in his statements, takes care to point out that even he is hamstrung and can’t openly talk about the issues in the case, due to gag order(s) and the strained misreading of the rules of a politicized grand jury and court system in Pennsylvania.

‘What the hell is going on here?’

All this it begs the question: What exactly is all this about?

Is this simply politically manufactured smoke meant to imply a fire, and to force Kane to resign? The public unfortunately won’t know until or unless the presentment is unsealed or the entire mess makes it way to open court.

Already the bal-masquéd affair has set off fierce controversy and confusion in state legal and political circles, and among the public at large.

One Pennsylvania lawyer relays to me some obvious questions.

“Contempt is the charge for violating grand jury secrecy. How did the grand jury not recommend contempt of court if they say there was a leak?” the lawyer asks. “But Kane’s not been charged with leaking grand jury information, but perjury, false swearing, and obstruction, for testifying that she didn’t leak anything. But they couldn’t show there was an illegal leak? Huh?”

Those of us who have followed Pennsylvania’s courts in recent decades can suggest the answer to that: Complaints have made the rounds for years that the state’s grand jury system, in other cases and perhaps this case, has been misused by insiders to punish whistleblowers and enemies of the old-boy-controlled courts and political system.

My friend the confused attorney goes on to state the obvious remedy to the gathering darkness and stench: “Judge Carpenter needs to unseal the presentment so we can see what the hell is going on here.”

The lawyer points out that the sealed presentment itself seems to fly in the face of the state’s Judicial Code, which supposedly governs lawful and fair court proceedings.

“The usual reason to seal a presentment is to assure that the person against whom the presentment is made can be taken into custody and arraigned when charges are filed, so the alleged criminal is not given the opportunity to know about as-yet unfiled charges and have the opportunity to flee,” he says.

The paragraph in question relating to sealed, or unpublished, presentments in the state’s Judicial Code reads as follows:

42 Pa.C.S. Sec 4551(b)
(b) Sealed presentment.–The supervising judge to whom a presentment is submitted may, on his own motion or at the request of the Commonwealth, direct that the presentment be kept secret until the defendant is in custody or has been released pending trial. (In such cases) no person shall disclose a return of the presentment except when necessary for issuance and execution of process.

So what are they saying? That Attorney General Kathleen Kane is going to light out to parts unknown in the Poconos, or perhaps flee to Tanzania once she finds out about all this? That’s preposterous.

This raises more troubling questions about what’s going on, and whether our courts and its rules are being misused for political ends.

Fairness, and openness?

Are court secrecy and gag orders being used unfairly against Kathleen Kane?

One would certainly think so.

But, on Thursday, January 22, Kane’s spokesperson Davis complained that the judge’s release of the 80 pages of court documents, and other actions of the judge, themselves were a violation of the Judicial Code, and hurt his client’s right to a fair trial.

Davis cites other sections of the Judicial Code related to unsealing a presentment:

“Section 4552 (b) … authorizes the supervising judge to make a Grand Jury report public. But Section 4552(c) states that ‘if the supervising judge finds that the filing of such report as a public record may prejudice fair consideration of a pending criminal matter’ then the ‘supervising judge…shall order such report sealed and such report shall not be subject to subpoena or public inspection during the pendency of such criminal matter except upon order of the court.”

Davis continues, “There can be no dispute whatsoever that this (80-plus-page) Report accusing Kathleen Kane of illegal leaks of Grand Jury information ‘may’ prejudice her legal position before due process and trial. Thus under the express terms of the (Judicial Code), with all due respect, it seems to me that Judge Carpenter may have violated this provision by making the Report public.”

So all sides in this mess, including Kane’s, are claiming strange and unusual rights to secrecy here, unattainable to everyday defendants, in defiance of the public’s right to know what’s going on with their courts and their attorney general.

A travesty in a free an open society

There are other hidden issues here that must now, like bad cards, be laid on the table.

Weeks earlier, Kane complained about a gag order issued by a judge that evidently prevents her from speaking about or releasing information to the public concerning pornographic emails shared by one of the “angry” prosecutors involved in all this.

Are the courts protecting a prosecutor and officer of the court who was chuckling over porno emails (sent by a Supreme Court justice, no less) when that prosecutor should instead have been going after Jerry Sandusky?

There are endless other questions that can only be answered by presenting the presentment to the public, or in open court proceedings.

For example, the documents released January 22 mention two AG office employees who, supposedly upset by Kane’s handling of grand jury material, went to a judge with their complaints. What exactly are their concerns? Who are these two employees? Are they disinterested officers of the court?

Or, are they holdover political patronage appointees from deposed AG Republican Tom Corbett’s office, catspaws of bad actors in this muddle who, like Rosencrantz and Guildenstern, have a hidden mission to carry out, a rogue actress to silence, or a political ax to grind?

Or perhaps are they Barney and Betty Hill, who claim to be abducted by a UFO?

We won’t know until and unless the presentment is presented to the public, as should now be done.

This black-hole-blowup shows the drastic need for reform in our disgraced courts, and in our politicized AG’s office.

The public is quickly tiring of all the parties involved in this affair, including the press, and everyone’s endless bumbling and backstabbing.

A pox on all their houses, the public may well yet rightly say.

A fair court system no doubt must protect the integrity of our grand jury system. The rights of an accused must also be protected.

But no one here seems interested in protecting the public, which will end up paying a high price for this travesty if corrective action isn’t taken, and secret proceedings and traducements like this become the new norm.

The entire episode is anathema to a free and open society, fair courts, and good government.

Fair and open court proceedings are meant as a reform from the sort of hidden, star-chamber ‘justice,’ and churning vendetta-charged rumor mill, we see here.

Bill Keisling has written several books about corruption in Pennsylvania courts and the attorney general’s office, including “We All Fall Down, a chronicle of the impeachment of State Supreme Court Justice Rolf Larsen”.