Commentary: Beemer's task is to get truth out about porn scandal

By Peter F. Vaira

The most important task Bruce Beemer must perform in his short but crucial term as attorney general is to clear up the porngate scandal. The bar, the courts, and the public must know what was going on with the mass ex parte communications between state prosecutors and the judges of the courts of Pennsylvania.

Prosecutors and former prosecutors I have spoken with are offended by the scandal. The full details have been kept secret for too long. The delay in exposing the limits of this scandal appears to many as another instance of lawyers protecting lawyers. This is a quagmire that former Attorney General Kathleen Kane inherited when she took office, and it should have been exposed in its entirety on her watch.

There is solid evidence that, for several years, prosecutors in the Attorney General's Office were sending ex parte communications to judges they appear before or were likely to appear before. This is not a group of guys having beers, deciding who would like to see email photos of women in various sexual acts, or would like to see emails containing ethnic or racial jokes. This lasted too long, and appears to have been a concentrated effort to compromise the courts. This is misconduct of the highest order.

Based on the length of time and the number of contacts, some prosecutors, me included, regard this behavior as criminal. That the individual judges who received the emails took no action is not a defense; it is credible evidence that the prosecutors' efforts were successful. The information that has been released so far indicates that there is too close a relationship among many prosecutors, judges, and grand jury judges. Aside from the off-color emails, what other ex parte communications regularly took place?

Rule 3.8 (d) of the Pennsylvania Rules of Professional Conduct expressly requires a prosecutor to provide to the defense, and the court, any information that would affect a case being tried. It is the attorney general's duty to disclose all those emails to the defense counsel, the judge involved in all those cases, and the Supreme Court in its oversight capacity. This is not attorney work product, as some attorneys in the Attorney General's Office have contended. If this action will expose some of the attorney general's colleagues or former colleagues, so be it. If it will expose judges with whom the Attorney General's Office has a good relationship, so be it.

I believe the courts and the Attorney General's Office fear that exposure will likely spawn hearings to determine if the ex parte communications affected the results of cases. I am sure this has troubled the Supreme Court in its oversight capacity. Troublesome as that may appear, this is not the old-boy legal system in the state courts of the South of the 1930s; this is Pennsylvania, which was once known for the quality of its judicial system.

The full extent of the scheme must be exposed and problems rectified. Aside from the powers conferred by statute, the attorney general has the residual historic power to ensure that there is responsible administration of justice in the prosecution of cases in the commonwealth's courts. If there are problems in this process, he has the authority to take steps to correct them. The attorney general is the only official from the executive branch who can accomplish this task. The bar, the courts, and the public await the long-delayed response.

Peter F. Vaira is a former U.S. attorney in Philadelphia. p.vaira@gpeff.com