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Two more Pa. Supreme Court justices received offensive emails, records show

Pennsylvania Supreme Court Justices Max Baer and Kevin Dougherty were among numerous judges and court officials who received emails that a state ethics board deemed offensive when it filed misconduct charges against a third justice last month, documents show.

Kevin Dougherty (left) received three emails on another bench and Justice Max Baer received 10 offensive emails.
Kevin Dougherty (left) received three emails on another bench and Justice Max Baer received 10 offensive emails.Read moreFile Photos

Pennsylvania Supreme Court Justices Max Baer and Kevin Dougherty were among numerous judges and court officials who received emails that a state ethics board deemed offensive when it filed misconduct charges against a third justice last month, documents show.

In charging Justice J. Michael Eakin, the Judicial Conduct Board cited a series of emails he sent and received that it said would offend a reasonable person.

An Inquirer review of evidence in the Eakin case shows that Baer received 10 of those emails.

The review also shows that Dougherty, who took office this month, received three such emails when he was the top judge in Philadelphia Family Court.

The emails Baer received included racially insensitive images, gender stereotypes, and off-color jokes. One included a picture of a black man in colorful clothes and described him as "pimpin."

Dougherty and Baer both received an email criticizing illegal immigrants, saying they receive "welfare, food stamps . . . free education, free health care, a lobbyist in Washington," and "billions of dollars worth of public documents" printed in their native languages.

Eakin's lawyer, William Costopoulos, said Tuesday that he was "fully aware" of the two justices' emails.

"I have no interest in bringing harm to anybody or ruining reputations," he said, but added: "I do want fair treatment."

In its complaint against Eakin, a Republican, the Judicial Conduct Board said the emails in question had content that "a person of reasonable sensibilities would find offensive."

The board's report made no mention of Baer or Dougherty, both Democrats.

A spokesman for the board did not respond to requests for comment Tuesday.

Baer and Dougherty were unavailable for comment, a court spokesman said.

The emails Baer and Dougherty received were sent between 2008 and 2010 by another justice, Seamus P. McCaffery.

McCaffery, a Democrat, abruptly retired in 2014 after it was revealed that he had sent hundreds of pornographic and otherwise offensive emails. His departure came in the first round of a continuing scandal involving state officials' using government computers to exchange improper emails on state time.

The emails became public after state Attorney General Kathleen G. Kane said she had discovered that her office's computers had been a hub for the exchange of offensive emails among prosecutors, judges, and others.

Her spokesman, Chuck Ardo, on Tuesday said he could not say whether Kane was aware of the emails sent to Baer and Dougherty.

"She is certainly aware that the email chains included numerous officials involved in the judicial system, and believes that the exposure of these particular emails certainly buttresses her argument regarding an ol' boys network," he said.

Kane made public some of Eakin's emails last fall, soon after the state Supreme Court unanimously voted to temporarily suspend her law license after she was charged with perjury and other crimes. Prosecutors say Kane leaked secret grand jury information and later lied about it under oath. She has pleaded not guilty.

In a legal motion to win back her law license, Kane has said the high court's vote was fatally compromised by Eakin's participation. The evidence in Eakin's misconduct case now shows that he was not the only justice to take part in that vote who received offensive emails.

Kane first raised an alarm about the email traffic in 2014, when she made public some of McCaffery's emails.

A year later, Kane, a Democrat, reignited the scandal by releasing a selection of Eakin's emails. She strongly suggested that the legal establishment had overlooked Eakin's wrongdoing.

In 2014, an expert hired by the Supreme Court, Pittsburgh lawyer Robert L. Byer, cited the pornography sent by McCaffery, but cleared Eakin and all of his colleagues, including Baer.

Other than pornography, Byer wrote, "I found nothing of an improper nature" in emails sent by McCaffery. In an interview Tuesday, Byer said the Supreme Court had instructed him to focus his review on pornography and evidence of improper communication among lawyers and judges about pending cases. He also was asked to look for any emails that might have revealed relationships that would have required the justices to recuse themselves from any cases.

In a separate review, Eakin also was cleared by the Judicial Conduct Board, which examined his emails in 2014 and deemed them "mildly pornographic." It said discipline was not warranted.

Both the Supreme Court and the conduct board reopened investigations of Eakin after Kane questioned the previous reviews.

In its recent complaint against Eakin, the board cited about 120 emails. None was explicitly pornographic. Most involved jokes that the board said demeaned women and gays, and trafficked in stereotypes.

The emails McCaffery sent to Baer and Dougherty had similar content. None contained pornography.

While Eakin both sent and received such emails, the other justices only received them, according to the records reviewed by The Inquirer.

In addition to Eakin, Baer, and Dougherty, McCaffery sent single emails the Judicial Conduct Board later deemed offensive to three other justices who have since left the bench.

They were former Chief Justice Ronald D. Castille, who stepped down at the end of 2014; Correale Stevens, who left the bench at the end of last year; and Joan Orie Melvin, in 2010, two years before she was charged with election-related corruption. She later was convicted and left the court.

Castille, along with Baer and Dougherty, were among many recipients of a McCaffery email that included a photoshopped image of a battered Tiger Woods standing next to his smiling ex-wife, who was holding a golf club.

Dougherty also received an email with a video of a male stripper and the email mocking illegal immigrants. McCaffery sent him the three messages in December 2008 and January 2009.

Castille said in an interview Tuesday that he had asked McCaffery to stop sending him inappropriate emails in 2010 after McCaffery sent him a picture of a naked woman with body paint in Marine colors.

He later sent an email to McCaffery, with copies to all other justices, warning him that his emails could end up embarrassing the court.

McCaffery included former Justice Stevens in an email with a picture of a man and woman showering together, taken from the shoulders up. It was part of a joke about how to recruit sailors for the Navy.

Stevens was among 30 people who received that email in 2009 while he was still on Superior Court. On Tuesday, he said he could not recall the message, but was certain he had not forwarded it.

At some point, Stevens said, he, too, told McCaffery to stop sending him emails.

As for Melvin, McCaffery sent her an off-color joke. She could not be reached for comment.

In addition to sending questionable emails to his colleagues on the high court, McCaffery sent such messages to about 15 Common Pleas Court judges across Pennsylvania and to court administrators.

He also sent single emails to two former justices - attorney William Lamb, who served as a Supreme Court justice for a year in 2003, and Ralph Cappy, a former chief justice of the court, who died in 2009.

Lamb, who also got the email critical of immigrants, said he did not recall it. But he said he would not have forwarded or responded to such a message.

"I have a rule that you should never send an email you would be embarrassed to let your mother see," he said.

Often, McCaffery's emails had dozens of recipients. The one raising questions about immigrants went to 33 people, including Chester County's then-president judge, James P. MacElree.

MacElree replied - and his message back was included in the official evidence exhibit in the Eakin case. In it, MacElree added items to the list of supposed benefits for immigrants - "free lawyers" and "all the programs to set you free."

MacElree, now a senior judge in Chester County, said Tuesday he did not recall the immigration email, but added, "If I responded, that was my response."

Speaking generally, he said, "we have become so politically correct that it may actually dampen free speech."

He said there was too much "free stuff" available to people, which "on a long-term basis can be harmful to this country because of the disincentive to work."

When asked about his use of his court computer for sending and receiving McCaffery's emails, he said that "all of us have become more sensitive to that."

McCaffery, a former Marine who was a police officer for 20 years, scoffed at the Judicial Conduct Board's view that the emails he sent were offensive.

In an interview Tuesday, he said many of the messages he sent involved the armed forces and weaponry. That was of interest to Baer in particular, he said, because Baer's son had served in the military.

He said he and others involved in the email exchanges had been wrongly criticized: "It was all harmless banter between friends."

mfazlollah@phillynews.com

215-854-5831 @mfazlollah

Staff writer Dylan Purcell contributed to this article.