Amid intense last-minute lobbying, a divided Pa. Supreme Court mulls action in porn scandal

A divided Pennsylvania Supreme Court is expected early this week to decide what to do about one of its justices caught up in the scandal over pornographic e-mails sent among state employees.

But what action the court may take against Justice Seamus P. McCaffery, who has acknowledged sending sexually explicit messages from a personal account, remains very much an open question amid intense last-minute lobbying, sources close to the court said.

Chief Justice Ronald D. Castille has urged his colleagues to handle the matter swiftly and decisively by suspending McCaffery from his judicial duties and appointing a special master to investigate the matter.

McCaffery, on the other hand, has called the chief justice's push for suspension part of a "vindictive pattern of attacks" against him.

He and at least some other justices believe the question is best left up to the Judicial Conduct Board - the state body that handles judicial ethics complaints but that Castille and his advisers feel has been painstakingly slow in taking action.

The debate has even prompted a former member of the state's highest court to weigh in. Former Justice Russell M. Nigro, whose tenure ended when he lost a statewide retention vote in 2005, suggested a compromise in an interview Saturday night.

"I think the appropriate thing would be a referral to the Judicial Conduct Board and the appointment of a special prosecutor to that board focused only on this particular set of issues," Nigro, a lawyer and mediator in Philadelphia, told The Inquirer. "It would be much cleaner, would be a quicker way to get to the bottom of it, and get it resolved so the court can get back to normalcy."

Where the court's five other justices stand is less clear. Most did not return calls seeking comment.

"The court needs to talk and see what we're doing," Justice Correale F. Stevens, an appointee of Gov. Corbett and the newest member of the bench, said Saturday. "My concern remains the public perception of the court."

That the court's Philadelphians - McCaffery, a Democrat, and Castille, a Republican - find themselves at loggerheads should surprise no one who has followed either man in recent years.

Since at least 2008, the two have been engaged in what until this month had largely been a quiet war waged behind chamber doors. They have sparred over control of the Philadelphia courts, a litany of ethical disputes, and even their shared history as U.S. Marines.

(In 2012, Castille, who lost a leg in the Vietnam War, rebuked McCaffery, who joined the service out of high school but never saw combat, over his use of an Ernest Hemingway quote on the "hunting of men" in the signature line of his e-mails.)

"It's ongoing, it's very deep, and it's personal," said Bruce Ledewitz, a Duquesne University law professor who has followed both men's tenure on the court.

But the revelation of McCaffery's involvement in the state's burgeoning pornographic e-mail scandal, which has already led to the ousters of three top government officials, dragged the two justices' falling-out into messy, public view.

In defending his call for McCaffery's suspension, Castille has said he would have advocated the same action against any judge who had sent similarly graphic messages.

On Saturday, at an annual conference put on by the Philadelphia Bar Association at Atlantic City's Borgata Hotel & Casino, Castille led off his "state of the court" speech with a joke about the rapidly developing scandal.

"I'm going to tell you what's going on at the Supreme Court," he said, according to several conference attendees, "not including the last few days."

And what a few days they have been.

On Wednesday, Castille released an accounting of more than 230 e-mails McCaffery sent between 2008 and 2012 to state employees that contained graphic sexual images and videos. Those messages, sent from a private e-mail address, were uncovered during state Attorney General Kathleen Kane's review of her predecessor's handling of the Jerry Sandusky child sex-abuse investigation.

The next day, McCaffery shot back, apologizing for what he called a "lapse in judgment," but taking Castille to task for what he described as a "cooked-up controversy."

From there, developments grew even more bizarre. Another justice - J. Michael Eakin, the appointed liaison to the Philadelphia courts - was shown to have been sent pornographic and racially tinged e-mails on an anonymous private account.

Eakin reported himself to the Judicial Conduct Board, blamed McCaffery for leaking the e-mails, and all but accused the justice of blackmailing him in an attempt to get him to sway Castille's thinking - allegations McCaffery then flatly denied.

Robert A. Graci, chief counsel to the conduct board, told the Legal Intelligencer on Friday the board would conduct "an independent investigation into matters addressed in Justice Eakin's letter," but would not tell the paper whether that probe included Eakin's claims that McCaffery had threatened him.

But for Castille, the conduct board's work has been disappointingly slow so far.

Along with McCaffery's sexually explicit e-mail traffic, the board is investigating his role in two other matters.

The first stemmed from a 2012 report Castille commissioned that found McCaffery had met with a top administrator at Philadelphia Traffic Court while his wife and judicial aide, Lise Rapaport, contested a traffic citation inside. She was acquitted.

The second arose from stories last year in The Inquirer raising questions about fees Rapaport received for referring cases to law firms while she worked in her husband's judicial office.

McCaffery has denied any impropriety in either instance, and, in his statement on the porn e-mails last week, blamed Castille for exaggerating the circumstances of both.

"He has done everything possible within our court to undermine me with my colleagues," McCaffery said.

(McCaffery has also sued The Inquirer, saying the articles about the referral fees painted him and his wife in a false light.)

So far, though, the conduct board has said nothing publicly about either complaint, and where the matters stand is uncertain.

The board's operations are confidential until disciplinary action is taken.

After a full investigation, the 12-member panel can quietly dismiss a complaint or file formal charges to be tried publicly before a separate Court of Judicial Discipline.

With the question over the porn e-mails now involving accusations from nearly half the high court's members, Nigro said Saturday the board should act as quickly and transparently as possible.

"There's going to be a lot of pressure from the general public," he said. "The legal profession and the public need a swift resolution so the court can get back to its work."

After all, said Ledewitz, contrasting the state high court's open conflict with the relative civility between politically opposed justices on its federal equivalent, "even [Ruth Bader] Ginsburg and [Antonin] Scalia can go out to the opera together."

215-925-2649