Castille to Kane: Release all the justices' e-mails

Pennsylvania's chief justice on Wednesday endorsed the recommendation of a group of defense lawyers and others that Attorney General Kathleen G. Kane release all e-mail traffic between the state Supreme Court and prosecutors, not just messages with sexually explicit material.

Chief Justice Ronald D. Castille said this would address concerns that members of his court might have grown too close to prosecutors, swapping e-mails in a camaraderie that shut out others.

"I think the attorney general should release all of them," Castille said.

Castille spoke after the president of the state Association of Criminal Defense Attorneys and the executive director of the American Civil Liberties Union of Pennsylvania, among others, urged him and Kane to make public all the e-mails to or from justices that the attorney general retrieved in an internal inquiry this year.

In the open letter Tuesday, they said even e-mails without pornography raised "a separate and potentially more significant issue" about possible "highly improper" contacts between justices and prosecutors who may be involved in cases that ultimately come before the court.

Renee Martin, a spokeswoman for Kane, said, "We haven't received a letter, and when we do, we will review it."

Castille said he lacked the authority to order other justices to make their e-mails public. He said such an action would take a majority vote of the court. Both he and another justice, Correale F. Stevens, said they had no problem with the attorney general's releasing their messages.

"If there is any suggestion of impropriety, people have a right to know about it," Stevens said.

This fall, Kane touched off a statewide scandal when she revealed that in years before she took office, state prosecutors and agents routinely shared pornography using their state e-mail accounts.

While scores of past and current staffers were said to have taken part, Kane, a Democrat, named only eight former officials, all with ties to Republican Gov. Corbett.

Castille, a Republican, demanded that she disclose whether any judges had been in the X-rated loop. This led to the revelation that another justice, Democrat Seamus P. McCaffery, had swapped 234 such e-mails - news that helped drive McCaffery into retirement Oct. 27.

The same review found that other justices on the seven-member court had sent or received an additional 1,200 e-mails in exchanges with the attorney general's staff. None contained sexually explicit material, Castille has said.

Now, lawyers are urging Kane to make public the remaining 2,600 McCaffery e-mails that did not contain sexual images, as well as the 1,200 involving other justices.

Their letter was signed by James Swetz, president of the defense lawyers' group; Reggie Shuford, ACLU state executive director; State Sen. Daylin Leach, the top Democrat on the Judiciary Committee; and Lawrence Fox, a veteran lawyer at Drinker, Biddle & Reath and the founder of a legal ethic program at Yale University.

In a separate statement Wednesday, Lynne Marks, who leads the reform organization Pennsylvanians for Modern Courts, also called for a review of the entire set of e-mails.

Rather than a blanket release, Marks called for the appointment of a special master to go through the e-mails and issue a public report to spotlight any misconduct, including improper communication between a judge and a lawyer or other party who may have a case before the court.

Castille said Kane should make public any e-mails involving any of the state's 450 county and appeals judges, and not just those on the high court. He also said her review should scrutinize e-mails sent after May 2012 as well.

Kane is the custodian of the e-mails, he said.

Neither Kane nor Castille has identified the justices besides McCaffery involved in e-mail exchanges with members of the Attorney General's Office.

However, a sampling of e-mails obtained by The Inquirer show that at various times, McCaffery sent e-mails to a group of recipients that included an agent in the Attorney General's Office and fellow Justices Max Baer, J. Michael Eakin, and Stevens - who at the time was a Superior Court judge.

On occasion, McCaffery also sent e-mails - one a joke about a wife upset at her husband's deer hunting with buddies - to a group that included the agent of the Attorney General's Office; John Hohenwarter, the chief state lobbyist for the National Rifle Association; and Eakin and Baer.

Hohenwarter and the justices did not return calls seeking comment.

Shuford, the state ACLU leader, said his primary concern was the high's court impartiality, particularly if any e-mails between justices and attorneys show that some lawyers might have an unfair edge.

"The bottom line should be that everyone who comes before the court should feel that they will be treated fairly and equally - and that no other party or litigant has an unfair advantage," he said.

Shuford declined comment on McCaffery's e-mails. Generally, he said, public officials need to "err on the side of being as ethical as possible. And so, really, the first problem might be in sending the e-mails at all to anyone who might appear before the court, or have issues before the court."

cmccoy@phillynews.com

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