No high court discipline for Justice Eakin on offensive emails
Pennsylvania Supreme Court Justice J. Michael Eakin's emails were "juvenile and repugnant," and offensive to women and minorities, but any discipline for his conduct should be left to the Judicial Conduct Board, a special counsel to the high court has concluded.
Pennsylvania Supreme Court Justice J. Michael Eakin's emails were "juvenile and repugnant," and offensive to women and minorities, but any discipline for his conduct should be left to the Judicial Conduct Board, a special counsel to the high court has concluded.
The special counsel's 25-page report, however, left unanswered a key question: whether two previous reviews of the justice's messages had failed to flag the offensive content, and if so, why.
The report released Monday found that Eakin, using a personal email account, exchanged messages containing crude jokes between 2008 and mid-2014 that "would be offensive to women, African Americans, immigrants, and other groups."
But the matter does not warrant immediate action by the high court, according to the report by the Pittsburgh law firm of Joseph A. Del Sole, hired last month to investigate the justice's emails and report back with its findings.
"We consider some of the materials that Justice Eakin sent, and many that he received, to be of serious concern," Del Sole wrote. "However . . . we do not believe that they give rise to the type of extraordinary circumstances warranting immediate intervention of the court."
The court agreed, but Justices Debra Todd and Correale Stevens attached statements urging a thorough investigation of the emails by the Judicial Conduct Board.
"I am disappointed and offended, both personally and professionally, by much of the content," Todd wrote, adding: "It should be abundantly clear that all of our commonwealth's judges are expected to conduct themselves, in both their personal and public lives, in a manner that promotes the public's trust and confidence in the judiciary. Our citizens deserve nothing less."
Eakin, 66, a Republican, has apologized for the emails and said they do not reflect his character or beliefs. His lawyer - his wife, Heidi - said that while she agreed with the conclusion of the report, she was concerned that the justice was not interviewed for the latest review.
"It was a unilateral review," she said, "and the conclusions were drawn by someone who saw just one side of the situation."
The court hired Del Sole's firm after Attorney General Kathleen G. Kane revealed in late September that Eakin had exchanged what she called "racial, misogynistic pornography."
The emails were captured on her office's computer servers because at least one of the senders or recipients was an employee of the Attorney General's Office and used a state account.
Kane said she was turning over the justice's emails to the Supreme Court and the Judicial Conduct Board, which investigates complaints of judicial misconduct.
In doing so, she questioned why reviews late last year of Eakin's messages conducted by both the board and the high court did not flag the offensive content.
At the time, the board cleared Eakin of any wrongdoing in connection with his emails. And Robert Byer, the Pittsburgh-based lawyer hired by the high court, concluded last December that Eakin had received just one email that contained X-rated content, and sent none.
The Judicial Conduct Board, in a rare public statement last month, as most of its work is secret, said it believed Kane had not provided it all of Eakin's emails when it reviewed them last year.
Kane responded by releasing 48 emails sent or received by Eakin and said the board had access to all of them. The messages contained crude jokes, as well as pictures of naked women.
Del Sole's report did not delve into whether Kane had turned over all the emails, or whether the previous reviews were complete. It noted only that the materials the firm reviewed were "at least in part different" than those to which Byer had access.
The Del Sole review focused instead on the contents of Eakin's messages from his personal account, in which he used the name "John Smith." Of the 955 messages the firm examined, 157 were sent by Eakin; the remainder were received.
Eakin sent no messages containing pornographic material - at least not "according to contemporary community standards," the report said.
However, its authors said he forwarded "multiple emails that were insensitive, chauvinistic and offensive to women." They highlighted one in particular that contained a joke about spousal abuse.
Eakin also sent several emails with "male banter" about trips to strip clubs while on annual golf outings.
The report found that the justice received "a substantial number" of emails containing jokes that were racially insensitive and disparaging of women. Many were blast emails to a large number of recipients.
Del Sole said Eakin also received a number of photos of topless women, and occasional photos of fully naked women. In general, the report found, the images were of the sort that might rate a "R" movie rating, though one, depicting a man having sex with an obese woman with the subject line "Mission Impossible," was pornography, the report found.
None of the emails - sent or received - discussed cases before the court or other judicial matters, and none contained requests for judicial favors.
The high court has the power in extraordinary circumstances to discipline justices concurrently with action by the Judicial Conduct Board. It did so last year when it voted to suspend former Justice Seamus McCaffery, who had sent and received several hundred X-rated emails on his personal account.
But Del Sole noted that McCaffery was suspended for more than just the pornographic emails, including an allegation that he improperly interfered in lower-court cases. In Eakin's case, the report found - and the high court agreed - that any misconduct was not so extraordinary as to merit action by his fellow justices.
Stevens, one of three Republicans currently on the high court, cautioned in a bluntly worded statement that the Judicial Conduct Board "not minimize or sanitize the seriousness of this matter."
He also signaled that he believes the board did not do a thorough review last year, and urged changes to the disciplinary process.
In an interview Monday, Ronald D. Castille, the former chief justice of the high court, said the high court did not go far enough.
"I feel they should have taken action," he said, though he declined to say precisely what penalty the court should have imposed.
Castille repeated his call for the appointment of a special prosecutor to sort out the email scandal. He said the Del Sole report had left unresolved allegations that Kane might have held back emails - or, as Kane has suggested, that the Supreme Court's first special counsel and the Judicial Conduct Board had whitewashed Eakin's misconduct. "Those were serious charges that she made . . . and they ignored it," Castille said. "Those charges are still out there."
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