Kane strategy seen as legal quagmire
Has Pennsylvania Attorney General Kathleen G. Kane opened the door for criminal defense lawyers to rummage through her office's most sensitive internal email documents?
Has Pennsylvania Attorney General Kathleen G. Kane opened the door for criminal defense lawyers to rummage through her office's most sensitive internal email documents?
Kane surprised many in the state's legal community last week when she released two internal emails of a Pennsylvania judge who had supervised the grand jury investigation of convicted child abuser Jerry Sandusky, a former Pennsylvania State University assistant football coach. They are appalled that Kane would cede the presumption of confidentiality by voluntarily releasing the emails.
"She has said that this [information on the attorney general's server] is all public information," said Samuel C. Stretton, who represented state Senior Judge Barry Feudale, whose emails were released. "She is saying everything is now fair game."
Stretton told The Inquirer on Friday that he was considering filing a lawsuit in an attempt to block Kane from releasing more emails because he claimed she is "violating grand jury secrecy."
"It's totally illegal. And that has to be stopped," he said.
Kane's release of the emails and her claim that they show a state judge may have leaked confidential information may serve a tactical purpose: showing that other state officials engage in the same conduct of which she's been accused.
"She is becoming absolutely Nixonian, and it pains me to say that because I am a Democrat," said Jeffrey Lindy, a criminal defense lawyer in Philadelphia not involved in the Kane matter. "I have not seen anything like this since the days of [President Richard] Nixon's downfall."
The dispute over Kane's actions comes amid her ongoing legal troubles.
The state Supreme Court suspended her law license in September after she was charged in Montgomery County with perjury, obstruction of justice, and official oppression for allegedly leaking secret court documents to reporters and then lying about it under oath. Kane has pleaded not guilty. Meanwhile, the state Senate is taking preliminary and unprecedented steps to potentially try to remove her from the elected position she's held since January 2013.
The stakes in this rapid-fire legal fight are potentially high. As Kane herself underscored in a statement Wednesday, Feudale, whom she accused of judicial misconduct, was no ordinary judge.
For a dozen years, Feudale was the presiding grand jury judge in a string of high-profile investigations: the so-called Bonusgate and Computergate corruption probes, the Pennsylvania Turnpike Commission inquiry, and the Sandusky scandal and related pending cover-up charges against top Penn State leaders.
Already, at least one criminal defense lawyer, Alexander Lindsay, who is representing Sandusky, has seized the opportunity to try to gain access to internal grand jury communications he maintains could help overturn his client's conviction.
"It opened the door; it was a significant factor," Lindsay said of Kane's release of the judge's emails.
Lindsay argues that prosecutors, having limited success at the start of the Sandusky investigation, leaked confidential grand jury information to sway public opinion and spur others to bring claims of abuse to law enforcement.
On Thursday, acting on a motion by Lindsay, Centre County Common Pleas Court Judge John Cleland ordered Kane to provide him with any information showing that there was leaked information.
Cleland gave Kane until Wednesday to comply, and her spokesman, Chuck Ardo, said she will indeed do that.
Kane released emails by Feudale declaring that convicted sex offender Sandusky will "die in jail," and discussing with Inquirer reporters the possibility of leaking state Supreme Court orders removing him as supervising grand jury judge.
In justifying the release of Feudale's emails, Kane said in a statement Thursday that emails on the Attorney General's Office server are "not considered private communication" and that she was prepared to respond to subpoenas seeking information about leaks regarding the Sandusky investigation.
Elizabeth Ainslie, a defense lawyer at Schnader Harrison Segal & Lewis in Philadelphia and a former federal prosecutor, is representing former Penn State president Graham B. Spanier, who is trying to stop his criminal indictment in the Sandusky case from going to trial. She said Kane's statements and email release might give a bit of a boost to criminal defense lawyers. But she, too, added that requests for documents would be limited by privileges attached to internal law enforcement information.
"I doubt it has opened the door to any blanket 'Let me see what you've got' approach," Ainslie said. "It might make it easier for criminal defense lawyers to frame their requests for documents."
Criminal defense lawyer Ellen Brotman said Kane's release of the judge's emails was hardly a blanket waiver of privilege because it involved no attorney/client matter.
Lawyer Lindy said that, in his view, Kane's release of the judge's emails and her contention that emails on her state office's servers are not private "is not creating any opening for the criminal defense bar. It is just making the criminal justice system look incredibly bad."
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