Judge orders Kane to explain aide's firing

HARRISBURG - A judge on Friday ordered Attorney General Kathleen G. Kane to prove she did not violate his court order when she fired a top aide this week - and said she would face contempt charges if she did.

Montgomery County Judge William R. Carpenter directed the embattled attorney general to appear at an April 27 hearing before a three-judge panel to review the circumstances of her decision to oust James Barker, a chief deputy attorney general.

Barker was among several top aides to Kane who testified last year in the leak investigation that now threatens her career.

The Inquirer has reported that his testimony appeared to contradict Kane's claims that she didn't violate any laws when she authorized the release of confidential information to the Philadelphia Daily News.

During that inquiry, Carpenter issued a protective order to prevent any witnesses from being harassed or intimidated. He said this week that even though the investigation had ended, his order was still in force.

If the panel of judges find that Kane violated it, "an indirect criminal-contempt hearing proceeding will follow forthwith," Carpenter wrote in a filing Friday. A contempt-of-court finding can result in jail time.

Kane has been unavailable for comment since Barker's ouster on Wednesday and was again on Friday, her office said.

In a statement, her lawyer and personal spokesman, Lanny Davis, reiterated what Kane's spokeswoman said this week - that Barker's firing was unrelated to his testimony.

"I can reassure Judge Carpenter that the personnel decisions over the last two years, including the most recent ones, were 100 percent appropriate management decisions by Attorney General Kane, consistent with her campaign themes and commitments to the people of Pennsylvania for reform and efficiency in the Office of Attorney General," Davis said.

Kane's office initially described Barker's dismissal as part of a "restructuring" of the attorney general's criminal division.

In a later statement, the office said the 53-year-old appeals chief was fired because of alleged leaks out of a sitting grand jury, although it did not specify which leaks.

"The decisions on restructuring and personnel are about change to an office that desperately needed new leadership that is accountable and responsible to Pennsylvanians," that statement said. "There is not the slightest grain of truth to the notion that there is anything retaliatory about these restructuring and personnel changes. Any innuendo to the contrary is entirely false."

In an interview Friday, Barker said he believed his firing was a direct result of his testimony.

"That is the only conclusion I can draw," he said.

He said he was dismissed by his supervisor after arguing a case Wednesday at the U.S. Court of Appeals for the Third Circuit in Philadelphia.

When he returned to Harrisburg, he was fired on the spot.

He said his supervisor told him he couldn't discuss the reason, according to Barker. Agents then escorted him from the building, he said.

The grand jury over which Carpenter presided found that Kane leaked confidential information to the Daily News last year in a bid to embarrass one of her critics.

The panel recommended charging her with perjury, obstruction, contempt of court, false swearing, and official oppression.

The investigation, led by Montgomery County lawyer Thomas Carluccio, has since been turned over to Montgomery County District Attorney Risa Vetri Ferman, who is weighing whether to charge Kane.

Carpenter's protective order was issued in late August, shortly after the leak probe began. It said employees of the Attorney General's Office "shall refrain from engaging in, or soliciting, any act of obstruction, intimidation, or retaliation against any witness summoned" by the grand jury and that any person who engaged in such an act may be prosecuted.

His order Friday said Montgomery County Judges Richard P. Haaz and William T. Nicholas would join him on the three-judge panel that will decide whether Barker's firing amounted to retaliation. Nicholas is a senior judge and the county's onetime president judge.

Former prosecutor L. George Parry, a veteran Philadelphia lawyer, said Kane's evolving explanation for why Barker was fired may hurt her.

"The first explanation out the door is that this was part of a standard restructuring of the office, and then we are told there is something possibly more sinister going on," Parry said. "That certainly raises a lot of questions. . . . It's hard to understand what she's trying to accomplish."