Flawed ethics reviews, sharp criticism, and a justice's path to resignation

031516_justiceeakin_1200
J. Michael Eakin resigned last week from the high court. Whether he will keep his pension is unclear.

When the Pennsylvania Judicial Conduct Board first cleared state Supreme Court Justice J. Michael Eakin of any wrongdoing with his emails, its chief counsel praised him for being "helpful and cooperative."

How helpful was the justice?

"I have not retained copies of any email at all," he told the board in 2014.

What about his emails with suggestive pictures or racially offensive jokes?

"I recall no such emails," Eakin said.

The justice resigned Tuesday after tearful apologies about his troubling emails failed to quell public outrage, but his fight goes on.

And his unlikely ally is none other than the Judicial Conduct Board, the agency responsible for prosecuting him on ethics charges.

Shortly after Eakin resigned, the board asked the state Court of Judicial Discipline for permission to drop the most serious charge it had brought against him. The move was widely seen as an effort to help Eakin keep his $153,000 annual pension.

The favorable treatment the panel showed Eakin was the latest twist in a disciplinary process that critics say treats the powerful and the connected far too leniently.

James Schwartzman, the Philadelphia lawyer who chairs the panel, vigorously defended the board against that criticism, saying its scrutiny of Eakin had been "as thorough as thorough can be."

He blamed "misreporting of the facts by various news organizations [and] misinterpretation of what has occurred" for the blows to the panel's image.

Doubt about the Judicial Conduct Board first flared in 2014, in the first round of the Porngate scandal. State Attorney General Kathleen G. Kane ignited the furor when she discovered that her office's computer servers had for years been hubs for judges, state prosecutors, and others to exchange pornographic emails.

Supreme Court Justice Seamus P. McCaffery was the most high-profile official identified as being involved, sending or receiving emails containing more than 1,500 X-rated pictures and videos.

After the news broke, the Supreme Court ordered the Judicial Conduct Board to investigate McCaffery over his emails, as well as allegations he might have fixed a traffic ticket, improperly sought to influence a lower court, and crossed ethical lines in regard to legal referral fees paid to his wife.

Then, McCaffery, the Supreme Court, and the Judicial Conduct Board secretly struck a deal under which McCaffery agreed to retire but was allowed to keep his pension. In return, the board dropped its investigation of him.

But amid his bid to keep his job, McCaffery allegedly threatened to reveal that Eakin, too, had exchanged offensive emails. When that became public, the Judicial Conduct Board launched an investigation of Eakin in the fall of 2014. The Supreme Court, too, hired an outside lawyer to review Eakin's emails, as well as those of other justices.

The board's chief counsel, Robert A. Graci, later cleared Eakin, calling his emails at worst only "mildly pornographic." The Supreme Court's fact-finder, Pittsburgh lawyer Robert L. Byer, called Eakin's emails "unremarkable."

In a recent interview, Byer said the high court had told him to examine only three areas "of immediate concern at the time": whether messages contained pornography; whether they revealed improper discussions between justices and lawyers about cases; and whether they suggested justices should have recused themselves from any cases.

He said any further review of the emails was "beyond the scope of my assignment."

In his view, he said, it was the conduct board's task to review emails that, while not pornographic, had images or jokes offensive enough to violate ethical rules.

According to interviews, Justice Thomas Saylor, then the incoming chief justice, defined Byer's role.

"The [initial] focus, as outlined by the attorney general at the time, was on pornography - the allegations were that pornography was being swapped," said James Koval, a Saylor spokesman.

On Saturday, Kane said Saylor was leaving the "false impression" that she had played a role in "the yearlong cover-up of Justice Eakin's emails."

She added: "For this cover-up, his court, its special counsel, and the Judicial Conduct Board must answer, not I."

In late 2014, both the Supreme Court and the Judicial Conduct Board concluded that Eakin had done nothing wrong.

The matter was considered closed until nearly a year later, when Kane suddenly denounced both reviews, kicking the scandal into its second round.

While Kane had previously cast a light on the X-rated emails of various state officials, in 2015 she widened her lens with Eakin. For the first time, she raised additional questions about his email with jokes that mocked women, minorities, immigrants, and others.

She made the allegations minutes after she was arraigned on a new perjury charge in her pending criminal case.

Since then, there has been a steady series of disclosures raising questions about the conduct board's initial review.

The Daily News revealed that Graci, the chief counsel, was an old friend of Eakin's and had worked on his 2011 election campaign. The Inquirer disclosed that a board member had himself received pornography on government computers - from McCaffery.

Most recently, court filings revealed that the board kept no transcripts of its initial interviews with Eakin.

Embarrassed by Kane, both the conduct board and the Supreme Court started over last fall, each again reviewing Eakin's emails. The result was a complete reversal.

The Supreme Court's new outside expert - Joseph Del Sole, a former state Superior Court judge paid $88,000 for his work - called the emails "offensive, tasteless, insensitive, juvenile, and repugnant to reasonable sensibilities." And the Judicial Conduct Board charged Eakin with ethical lapses.

But the board blamed Kane for any failings in its first review, accusing her of not turning over a complete set of Eakin's emails.

Kane, in turn, said she had tried to alert the board to more Eakin messages, but was ignored. Schwartzman, the panel chairman, called that an "absolute lie."

This year, the Court of Judicial Discipline has been pressing the conduct board to reveal details of how it investigated Eakin. It has had mixed results.

Among other pointed questions, the court asked the board whether Eakin or Graci had ever disclosed their social and political ties. In a recent filing, the panel refused to answer, dismissing the question as "irrelevant."

Judge Jack Panella, leader of the judicial tribunal hearing Eakin's case, responded meekly. In a court hearing, he called the board's overall filing "excellent" and did not push for the board to give an answer.

Schwartzman said board secrecy rules barred him from talking about Graci's actions.

Graci did not return a call for comment.

After the Daily News revealed Graci's ties to Eakin in late 2015, he removed himself from the second review of Eakin's conduct.

Three weeks before the newspaper broke its story, Graci took part in a deposition of Eakin as part of its reopened investigation. This time, a stenographer was present, and the transcript was made public last week at the insistence of the Court of Judicial Discipline.

In questioning Eakin, Graci said at one point that the justice had been exchanging emails with a group of old friends, adding: "But the information's been made public, as unfortunate as that might be."

At another point, Graci observed that the justice's emails might have been intended as jokes, but that "if you read them out of context, might have a different flavor to them."

His friend's words struck a chord with Eakin.

When it comes to exchanging jokes with a small group of friends, Eakin responded, "You made a very good point. . . .. don't know that I can say with a straight face that a judge should never, ever, do that kind of stuff."

cmccoy@phillynews.com

215-854-4821 @CraigRMcCoy

Continue Reading