Kane: Judge's emails legally obtained

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Pennsylvania Attorney General Kathleen Kane.

Pennsylvania Attorney General Kathleen G. Kane said Wednesday that her office had obtained emails among a state judge, his lawyers, and Inquirer reporters because they were housed on her office's computer servers.

Responding to an article in The Inquirer reporting that Kane's office had obtained the emails and offered to provide them to other media outlets, Kane said any suggestion that she had acquired the emails from any source other than her servers was "false."

Kane provided no details, but sources said she obtained them because Judge Barry Feudale mistakenly sent the messages to the old email address of a former top prosecutor in the Attorney General's Office.

Though Feudale sent the messages on his private computer, Kane made his emails public Wednesday. She said they were evidence that Feudale had engaged in judicial misconduct - that his "overriding concern was how to leak sealed Supreme Court documents without being caught."

Kane's statement clarified how she had obtained Feudale's emails, acquired after he had been removed from his post as a judge overseeing a statewide grand jury and was communicating with his lawyers and the journalists.

On Tuesday, Kane's spokesman, Chuck Ardo, told The Inquirer that her office "may have" turned over email traffic from Feudale to judicial regulators and disciplinary agencies. Yet he also said the office had no role in obtaining or distributing any of Feudale's messages.

He made these seemingly contradictory points after The Inquirer informed Kane's office that it was preparing to report that a consultant to Kane had leaked copies of the Feudale messages to Philadelphia news organizations.

Ardo said Wednesday that it had taken time to sort out the facts.

He said he was only able to confirm the existence of the emails within "the last day or so."

In her statement, Kane did not address how Feudale's emails ended up in the hands of Ken Smukler, a veteran political operative who is one of Kane's consultants.

Smukler said Tuesday that he had obtained emails of two Inquirer reporters from "individuals outside the Attorney General's Office."

Two people familiar with the matter said Smukler had offered copies of the emails to news organizations in recent days. He would not confirm that, but said Wednesday that any questions about his actions "pale in comparison to the substance of these emails."

Kane attached to her statement full copies of emails among Feudale, Inquirer reporters Craig R. McCoy and Angela Couloumbis, and two lawyers representing Feudale, William Costopoulous and Samuel C. Stretton.

Feudale acknowledged that he might have sent his emails to Fina's old address, but reiterated Wednesday that Kane had violated his privacy.

"I am no less outraged and saddened," he said.

For a dozen years, Feudale presided over a series of grand juries hearing evidence in high-stakes cases, including the Computergate and Bonusgate corruption probes and the investigations of Jerry Sandusky's sex crimes.

Kane, shortly after taking office, successfully asked the Supreme Court to remove him from that post, though he remains a senior judge. She said Feudale had unfairly criticized her and had mocked her predecessor, and once brandished a knife in her building.

Feudale said Kane had been upset at his criticism of her handling of key criminal investigations and had trumped up a case against him.

Stretton, Feudale's lawyer when Kane successfully sought his ouster, said Wednesday that the Rules of Professional Conduct for lawyers require them to notify the sender when an email is mistakenly sent to the wrong address.

"I think she certainly crossed an ethical line by not informing him," Stretton said.

Fina, too, said he believed that Kane had violated his privacy rights by reading and copying emails sent without his knowledge to his old email address at the Attorney General's Office.

"I invite and hope that a special counsel is appointed to look into Kane's conduct in this whole matter," said Fina, now an assistant district attorney in Philadelphia.

Feudale sent the emails in question in July 2013 - seven months after Fina had left his state position.

Kane's staff obtained them by 2014, sources said, at a time when prosecutors were building a criminal case against her.

Kane has pleaded not guilty to perjury, conspiracy, obstruction and other charges in the allegedly leaking of confidential grand jury material in a bid to embarrass Fina. Before she was charged, prosecutors say, she ordered her staff to cull through office emails in an effort to learn about the pending criminal case.

Sometime between September and December 2014, they say, the head of Kane's security detail, Patrick Reese, entered the names of Inquirer reporters Couloumbis and McCoy into the office computer server, hunting for emails from them. Reese was later charged along with Kane. He has pleaded not guilty to contempt of court.

Kane made just two emails public, though four other emails were in their text - messages sent to the two Inquirer reporters and to the judge's lawyers.

At one point in the exchange, Feudale told the reporters he could not share information because to do so would improperly reveal information from grand jury matters.

But, as Kane noted, he also discussed providing them with copies of the Supreme Court order to remove him and a follow-up order rejecting his appeal. He asked the reporters for assurances that the legal material would "only be used as background and you will not reveal me as the source."

Feudale said he believed the material raised no issues of grand jury secrecy and said that he viewed the documents as arguably public.

Kane has referred the emails to the Judicial Conduct Board, the state Supreme Court, and the state Ethics Commission.

For the most part, the emails show Feudale presenting his side in his struggle against Kane's move to have the Supreme Court remove him as a grand jury judge.

As for Kane's access to Fina's old email account, Ardo said the Attorney General's Office keeps email addresses active after employees leave the office. He said it does that so victims and others in criminal cases "can continue to have a way to communicate with the office." He said he did not know how long email addresses remain active after an employee's departure.

But two former lawyers with the Attorney General's Office said the agency commonly shut down the email accounts of departing employees immediately.

They and other lawyers questioned whether the office had a right to open emails sent to an employee who no longer worked at the office, even if the message were stored on its servers.

"I would compare that to getting a letter for your neighbor, and saying that because it arrived at your address, you have a right to open it," said one former lawyer for the office.

Legal experts had mixed opinions on the emails Kane released Wednesday.

Geoffrey Hazard, emeritus professor of law at the University of Pennsylvania, Yale University, and Hastings College of the Law in California, said Feudale's emails "include material that appears quite improper, particularly discussing matters then pending or impending before him."

Kane's release of the emails "appears also improper, as 'trying the case' in the media," Hazard said.

Stephen Gillers, a professor of law at New York University, said he could not specifically address the emails, but offered general comments on legal conduct.

"A judge can speak to the press on or off the record," he said. "No judicial conduct rule categorically forbids it."

But a judge should not speak in a way that casts doubt on impartiality and integrity, or otherwise would undermine the public's trust in and respect for the judiciary, Gillers said.

"Most important is the protection of secrets," he said. "A judge should never reveal information the law makes secret, including grand jury proceedings, information in sealed court files, and the substance of deliberations with other judges on his court, even after an opinion has been issued."

cpalmer@phillynews.com

610-313-8212@cs_palmer

Inquirer staff writers Robert Moran and Dylan Purcell contributed to this article.