Kane accuses judge in leak case of bias, animus

Lawyers for Pennsylvania Attorney General Kathleen G. Kane on Monday sharply criticized a Montgomery County Court judge, saying he should be removed from handling a case against her because he is biased and dislikes her.

The lawyers denounced Judge William R. Carpenter in a 15-page memo submitted to the state Supreme Court as Kane seeks to block a grand jury's recommendations that she face criminal charges.

In December, Carpenter approved a report from the jurors finding that Kane had illegally leaked secret information to embarrass a political foe and then lied about it.

The jury recommended that Carpenter hold her in contempt at some point and that Montgomery County's district attorney arrest her on charges of perjury, obstruction, false swearing, and official oppression.

Kane, a Democrat, has denied an illegal leak. Her lawyers have asked the Supreme Court to rule that Carpenter had no legal authority to appoint a special prosecutor to investigate her.

In his own filing last week, Carpenter, a Republican, said Kane was seeking special treatment simply because she is attorney general.

"Citizen Kane should be treated no better than any other citizen," he wrote, adding, "The truth is crying to be heard."

Kane's lawyers - three signed the brief - quoted this last line as evidence that Carpenter was a "zealous advocate" who had displayed a "clear and emotionally charged partisan support for one position and personal animus towards a particular litigant."

They said Carpenter had no authority to name lawyer Thomas E. Carluccio as special prosecutor to investigate the leak because Pennsylvania's independent-counsel statute expired in 2003 after five years on the books.

To drive home their point, they quoted from a state legislator who said in 1997 that the state needed a law to authorize creation of independent counsel precisely to investigate attorneys general.

In his filing last week, Carluccio said this misread the history of the law creating independent counsels.

He noted it was passed after the attorney general at that time, Ernest D. Preate Jr., pleaded guilty to corruption charges related to campaign contributions. He said this was the sort of high-level corruption that an independent counsel needed statutory authority to investigate, but that judges had long had power to look into leaks from grand juries they preside over.

With Monday's filing, the stage is set for the Supreme Court to hear oral arguments on March 11 in the leak case.

Kane may face a battle that grew steeper Monday with the news that Gov. Wolf and the legislature would no longer seek to fill the seven-seat court's two vacancies this year.

That means five justices will decide the Kane case. Of them, four have voted in support of having judges appoint special prosecutors investigate leaks in previous opinions over the last decade.

Kane's lawyers say those cases are substantially different from the current investigation involving Kane. They say a better precedent is a 1962 Supreme Court opinion invalidating a special grand jury appointed to look into corruption in Philadelphia in that decade.

215-854-4821 @CraigRMcCoy