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Louis A. DeNaples testifying before the Pennsylvania Gaming Control Board in Harrisburg in 2006, accompanied by the Rev. Joseph Sica, his friend.
CAROLYN KASTER / Associated Press
Louis A. DeNaples testifying before the Pennsylvania Gaming Control Board in Harrisburg in 2006, accompanied by the Rev. Joseph Sica, his friend.
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Released calls put police on edge

A lawyer in the Pa. leaks case got law enforcement phone records. Some fear a risk to other probes.

A lawyer investigating leaks in the probe of a Poconos casino operator obtained cell-phone records for prosecutors and state police - raising concerns in Pennsylvania's law enforcement community that others could use the same tactics to compromise sensitive investigations.

Sprint-Nextel last month handed over the records for the Dauphin County district attorney, his chief deputy, and two troopers assigned to an organized-crime unit without telling the prosecutors or police, according to people with knowledge of the case.

The disclosure astonished some veteran prosecutors, who said they had never heard of such an incident before. One legal expert said it raised a "nightmarish" scenario: the possibility that criminal defendants could obtain phone records to identify confidential informants or find domestic-violence victims.

"This could get somebody killed," said Francis Chardo, the first assistant prosecutor in Dauphin County and one of the prosecutors whose records were disclosed.

He said he was speaking in general terms, not on the specifics of the leaks case, which is being argued in secret.

The Pennsylvania District Attorneys Association and state lawmakers are already talking about legislation to plug what they say is a gap in state law that allows defense attorneys to subpoena telephone records of law enforcement agencies, and others, without notice.

"We're very concerned about the potential havoc this could cause," said Kathleen McDonald of the Philadelphia District Attorney's Office, legislative liaison for the state association. She said the association would discuss the matter this weekend in Erie.

"We're going to look into legislation to make sure that people's privacy rights, particularly in law enforcement, are protected," she said.

Sprint-Nextel turned over calling records after receiving a subpoena delivered by the office of Sal Cognetti Jr., a lawyer for Joseph Sica, a Roman Catholic priest and friend of Scranton businessman Louis A. DeNaples, sources said.

DeNaples and Sica were charged with perjury by a grand jury in Harrisburg, accused of lying about their organized-crime associations during a hearing on whether DeNaples deserved a casino license.

DeNaples passed the background check and last year opened his $415 million slots hall, Mount Airy Casino Resort.

Cognetti, a Scranton defense lawyer, would not address the subpoena but criticized media organizations for not seeking to have a hearing in June on the leaks investigation opened.

DeNaples' attorney, Richard A. Sprague, declined an e-mailed request for comment.

Sprint-Nextel turned over records for Dauphin County prosecutor Edward M. Marsico Jr., Chardo, and the troopers, sources said. The company turned over 18 months of records for Chardo and the detectives, sources said.

Marsico declined to comment on the records' release, as did State Police Lt. Col. Frank Pawlowski, who supervises the police's gaming unit. Generally, he said, detectives' phone records could "open up the heart of many investigations."

Sprague and Cognetti are fighting the perjury charges in part by trying to launch an investigation of the investigators. After DeNaples filed an appeal, the state Supreme Court ordered Dauphin County Court Judge Todd A. Hoover to hold a hearing on whether a special prosecutor should investigate the leaks.

They also issued subpoenas to reporters across Pennsylvania who had written about the DeNaples grand jury, seeking to learn their sources.

As with the reporters, the DeNaples team issued subpoenas for records directly to prosecutors; they objected, and Hoover quashed them.

Meanwhile, Cognetti subpoenaed the records from Sprint-Nextel, the cell-phone provider for the prosecutors and state police. By the time Marsico and Chardo found out, the DeNaples team had the records, sources said.

The maneuver irritated Hoover, according to people familiar with the case. He did not return a call seeking comment. But the tactic appears not to have violated any rules, legal experts say.

Under Pennsylvania procedure, people accused of crimes have a right to subpoena witnesses and records to aid their defense - and, at least in criminal cases, no obligation to tell the other side of their plans.

"Once there is an official proceeding, either side is free to subpoena whatever documents or witnesses they think are relevant," said David Rudovsky, a Philadelphia civil-rights lawyer.

"I don't think there's any requirement I give the court notice or you notice," he said. "I think that's between you and Sprint."

In civil cases, it's different: Lawyers must notify the other side when they seek records.

Pennsylvania's criminal judges often do not review subpoenas before they are issued, legal experts say.

Technically, records under subpoena are to be delivered to a court hearing.

"If they simply produced the documents without coming to court, it would seem to me that's wrong, particularly if it's cell-phone records," said Will Spade, a defense lawyer and former federal prosecutor.

But that's also common practice, said Bruce Antkowiak, associate professor at Duquesne Law School and author of a book on Pennsylvania criminal procedure.

As a practical matter, he said, companies would rather avoid making trips to courthouses across the country to deliver records.

"It's a nightmarish problem for law enforcement people," he said. One solution, he said, may be some kind of rule that requires cell-phone companies to give notice when someone seeks law enforcement records.

Sprint-Nextel also doesn't typically tell customers when their records have been subpoenaed.

For example, an attorney for The Inquirer called Sprint-Nextel to see if anyone had sought reporters' records. The company said it would not answer without a court order, said Scott Baker, general counsel for The Inquirer's parent company, Philadelphia Media Holdings.

Sprint spokesman Matthew Sullivan declined to answer questions about the DeNaples case. In a statement, he said the company received "tens of thousands" of subpoenas and other requests each year and followed all state and federal laws before disclosing customer information.

Pennsylvania offers few protections against such tactics. The state's wiretap law says nothing is wrong with a company's disclosing a customer's cell-phone records to anyone - except to law enforcement officers, who must obtain a subpoena or warrant.

Rudovsky said there should be greater privacy protections for cell-phone histories and other personal records - or, at least, a requirement that companies tell the customers when someone wants them.

Ironically, he said, one reason the law recognizes few privacy rights for phone records is that prosecutors and police have argued for years that no such rights exist.


Contact staff writer Joseph Tanfani

at 215-854-2684 or jtanfani@phillynews.com.

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