In Porngate, prosecutors urge that most serious charge against Eakin be dropped

Prosecutors in the ethics case against former Pennsylvania Supreme Court Justice J. Michael Eakin urged Thursday that the most serious charge against him be dropped, a step that would allow the justice to keep his $153,000 annual pension.

The prosecutors with the Judicial Conduct Board also joined with Eakin in providing the judicial court with a common narrative about the content of his offensive emails in the Porngate scandal.

Eakin's lawyer, William Costopoulos, said Eakin and the judicial board now agree that there is no need for the former justice to face a public trial before the Court of Judicial Discipline. The trial is scheduled for March 29, but Eakin wants the court to cancel it.

"Where do we stop this scrutinization?" Costopoulos asked. "Where do we stop this trivialization?"

The judicial board prosecutors did not return telephone calls Thursday.

Eakin, 67, a Republican who has served on the high court since 2002, suddenly resigned Tuesday, giving up his fight to remain on the court in the face of misconduct charges filed by the board in December.

The board has described Eakin's emails as salacious, misogynistic, and offensive to minorities and others.

Eakin has tearfully apologized for the messages, but argued for weeks that they did not warrant his removal from the bench.

The emails joked about women being given date-rape drugs, mocked Muslims, Latinos and gays, and found humor in domestic violence.

In recommending Thursday that the most serious charge against Eakin be dropped, the Judicial Conduct Board made no mention that the effect of that would be to protect his pension.

The filings revealed that on Wednesday, the day after he resigned, Eakin pledged never to seek office again. The board contended that Eakin had already suffered "the most serious sanction" by leaving the bench and agreeing never to return.

In their filing, the prosecutors noted that Eakin had agreed with their characterization of the content of his emails, and saluted his "cooperative actions." They said his resignation had saved "trial costs and expenses," sped up the proceeding against him, and helped to "facilitate judicial economy."

The motion asking the court for permission to withdraw the most serious charge was signed by the board's three deputy counsels - not by its chief counsel, Robert Graci.

Graci recused himself from the case after the board came under heavy criticism for its first review of Eakin's emails in 2014. That review, overseen by Graci, found that the messages were at worst only "mildly pornographic." The board cleared Eakin of any wrongdoing.

Attorney General Kathleen G. Kane later lambasted the review as a cover-up, and the Daily News revealed that Graci was an old friend of Eakin's who had worked on his 2011 judicial campaign. Embarrassed, the board launched a new review last year. Graci bowed out of the second review.

If the Eakin investigation is brought to a sudden end, some critics say, the Judicial Conduct Board itself would escape further scrutiny of its initial review.

Although prosecutors are now urging withdrawal of the most serious charge they filed against Eakin, the Court of Judicial Discipline could reject that.

Under the state constitution, current or former judges deemed to have brought a court into "disrepute" may be stripped of their pensions.

The finding that Eakin brought disrepute to the court was contained only in the last of four counts the board filed against him. This is the one that the board now wants to withdraw.

The joint stipulation, meanwhile, says Eakin sent about 20 messages with inappropriate content and received about 100.

Last month, Judge Jack Panella, who oversees the three-member panel from the Court of Judicial Discipline that is to hear the case, condemned any attempt at a deal to avoid a public trial. Panella dismissed the proposed deal sight unseen.

In the filings Thursday, Eakin and the Judicial Conduct Board nonetheless found a way to present much of their agreement to him.

In an interview, former state Chief Justice Ronald D. Castille, said he saw merit in allowing his former colleague on the court to keep his pension.

"He worked for 20 some years to get the pension, and I don't think he should lose it for 18 emails," Castille said.

However, Castille said he hoped that other vital issues would be resolved.

"There are larger things that the court might want to look into - how did the Judicial Conduct Board give him the pass the first time?" Castille asked. "I think there are some questions that still have to be answered."

mfazlollah@phillynews.com

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