Kane behind ouster of judge from corruption role

HARRISBURG - In a bitter and secret legal fight, state Attorney General Kathleen Kane has succeeded in ousting the judge who has long overseen corruption investigations in Pennsylvania, The Inquirer has learned.

After a conflict that had been roiling since she took office in January, Kane took the unusual step of asking the state Supreme Court to remove Judge Barry F. Feudale as the supervising grand jury judge in Harrisburg.

Kane told the high court in April in sealed papers that the judge was no longer fit to run a grand jury. Among other concerns, she cited an episode in which Feudale, stopping at her offices, showed a secretary a 10-inch knife.

Feudale, 67, has overseen grand juries in some of the Attorney General's Office's biggest cases, including the Bonusgate scandal in the legislature and the Pennsylvania State University child sex-abuse case. Asked about Kane's allegations, he called them "a sneak attack" that twisted facts.

"Kane is a politician first, second, and third, and perhaps an AG. . . fourth and fifth," he said.

Kane's communications director, Joe Peters, rejected Feudale's criticism. "She's attorney general, first and only," he said.

The dispute is part of a larger struggle, between the new attorney general and her office's old guard of career prosecutors, that has spilled over into how several high-stakes cases are being handled - including a probe into political corruption in several counties, Philadelphia among them, according to people familiar with the situation.

The scope and specifics of that investigation could not be learned.

The battle between Kane and Feudale could also have repercussions for the recent charges against eight people in a pay-to-play scandal at the Pennsylvania Turnpike.

A lawyer in the case said the defendants had heard rumors about Feudale's removal and had been wondering why - and if the reasons might somehow undermine the prosecutions and help the defense.

The dispute features strong personalities. The judge is a hiker, climber, and kayaker, fond of piloting his Cessna to county courthouses across the state, and blunt-spoken on and off the bench.

Kane, a former Lackawanna County prosecutor, came out of nowhere to beat her party's choice in the 2012 primary and become the first woman and first Democrat elected Pennsylvania attorney general. She has been a thorn in Republican Gov. Corbett's side and garnered national headlines Thursday by declaring she would not defend the state ban on gay marriage.

In documents submitted to the high court, Kane argued that Feudale should be removed because of behavior that included demeaning her and her predecessor, Linda Kelly, in an e-mail to a prosecutor who had left Kane's staff.

The e-mail went to Frank G. Fina, a onetime top prosecutor in that office who built many of its most explosive cases. The judge e-mailed: "The Last General aka 'Private' Kelly, could not lead and was indecisive to the point that she was almost ineffective."

Asked about the remark, Feudale said recently: "It was a cheap shot. I shouldn't have said that."

In the e-mail, the judge also disparaged a review Kane has launched into how the office pursued Penn State child molester Jerry Sandusky.

Feudale wrote that the review was "PATENT in its POLITICAL intent," but that Fina, who led the Sandusky investigation, should cooperate with it.

In May, the Supreme Court ruled in Kane's favor. The court's order did not bar him from serving as a judge, but removed him from the grand-jury position. The order was sealed and has not been made public.

In an interview, Feudale said he would not talk about any grand-jury investigations. But he did discuss the circumstances of his removal.

He acknowledged that his e-mail ripping Kelly was a mistake, but said he stood by the criticism of Kane's Sandusky-related probe. Feudale shared a copy of the e-mail with reporters.

He also said the knife incident had been distorted. The knife was a Gurkha dagger that Feudale said he had picked up in Nepal years ago and kept in his office as a conversation-starter.

Feudale said he had been tarred as "some wingnut with a Gurkha knife." He added: "They made it seem like I had this knife and I was running around with it, crazy.

"I did not brandish it."

A Democrat, Feudale was a Northumberland County judge from 1987 until 1997. He then worked as a "floating" senior judge, assigned by the Supreme Court to hear cases in 63 of the state's 67 counties.

Over the last 12 years, chief justices have appointed him to preside over a series of investigating grand juries. Judges in that role are crucial players, refereeing fights over subpoenas or evidence and even putting a personal stamp on the outcome. In 2010, when the Bonusgate grand jury filed a scathing report on the legislature, Feudale wrote that the evidence left the jurors "mad as hell."

Though it is rare for an attorney general to seek the ouster of a grand-jury judge, a collision between Kane and Feudale seemed almost inevitable.

Kane campaigned hard on the promise that she would review how her predecessors had handled the Sandusky probe. She questioned why it took as long as it did, raising the specter that then-Attorney General Tom Corbett might have dragged his feet in the case at a time when he was running for governor.

As a career prosecutor, Fina led that probe and a string of others that helped make Corbett's reputation - notably, the Bonusgate and Computergate investigations of Democrats and Republicans in the legislature.

But Kane's pledge to review the Sandusky case meant Fina and other longtime prosecutors would come under scrutiny.

Kane's election meant a Democrat was taking over an office run in recent years by Republicans. Fina left, as did most of the office's corruption team. Kane named onetime Philadelphia federal prosecutor H. Geoffrey Moulton Jr. to head the internal review.

Feudale said he met with Moulton soon thereafter - and, as part of the review, gave him a copy of the e-mail sent to Fina.

That is when Feudale's problems began to intensify.

He was already clashing with Kane by then, questioning her charging decisions and even her hiring choices, as well as her handling of the case against Penn State administrators charged with covering up Sandusky's abuse.

In a May opinion - one of his last before he was removed - he chided Kane's office in the Penn State case, saying it needed to accelerate. "Continued delay in this case," he wrote, "is not in the interest of justice."

Feudale said in an interview that Kane's office ended his once-unfettered access to grand-jury files. He said a guard told him: "You can't go anywhere without an escort; it would be a security breach."

Kane, in her petition to remove Feudale, asserted among other things that his friendship with Fina clouded his objectivity on investigations.

Fina, who now works for the Philadelphia District Attorney's Office in Philadelphia, declined to comment for this article.

As Feudale explains it, he was leaving his chambers one Friday afternoon this spring and decided to take the knife home. On the way to his car, he stopped at Kane's office to inquire about a new filing in the Penn State cases.

While there, he said, he did something he probably shouldn't have. He showed a secretary the knife, and began teasing her: If the A.G.'s Office was so worried about security, then "how did I get this in?"

He said he can't recall whether he removed the knife from its sheath - as Kane's office asserted.

By the following Monday, the situation was turning toxic.

Feudale said he had to write an opinion in the case against onetime Penn State officials. To do so, he had to review grand-jury records in the Attorney General's Office, put there under lock and key as part of Moulton's inquiry.

When he went to review the documents, Feudale said, he was met by two armed guards.

He said the guards took umbrage at the fact that he had a bagel with him.

"You will not eat that bagel when you are under my supervision," the judge said a guard warned - to which he responded: "Are you nuts? Get this man away from me."

Feudale was in Texas for his son's military graduation when he received word that Kane's office had filed a "writ of prohibition" to remove him as the supervising judge.

Among the things Kane cited: the knife incident - plus another several years ago in which, by his account, he carried a penknife in his backpack when visiting a fellow judge in Lancaster County.

In an interview last week, Lancaster County Judge Louis J. Farina said he was surprised that Kane's office had cited that incident.

Farina said the event was at least four years ago. He said Feudale, "a big hiker" who often has a backpack, took a knife from his pack - perhaps "a penknife, something small" - to show guards they had missed it.

"We sort of had a little laugh about security," Farina said. "It was not an event of any consequence whatsoever."