Montco DA op­poses house ar­rest for Kane

Daily Local News (West Chester, PA) - - FRONT PAGE - By Carl Hessler Jr. chessler@21st-cen­tu­ry­media.com @Mont­coCourtNews on Twit­ter

Dis­trict At­tor­ney Kevin R. Steele said house ar­rest would be “in­ap­pro­pri­ate” for Kath­leen Kane.

NOR­RIS­TOWN >> Mont­gomery County prose­cu­tors want a judge to deny for­mer Penn­syl­va­nia At­tor­ney Gen­eral Kath­leen Kane’s re­quest for a house ar­rest suit­abil­ity study as she awaits sen­tenc­ing for per­jury and abuse of power con­vic­tions.

“In Mont­gomery County, house ar­rest is a sel­dom used sen­tenc­ing al­ter­na­tive gen­er­ally re­served for de­fen­dants who suf­fer from se­ri­ous, de­bil­i­tat­ing med­i­cal con­di­tions or who care for a per­son with this type of con­di­tion. As far as we are aware, Ms. Kane has no such con­di­tion, and con­se­quently, an ex­cep­tion should not be made for her,” Dis­trict At­tor­ney Kevin R. Steele wrote in court doc­u­ments filed Fri­day.

Steele ar­gued house ar­rest “would be an in­ap­pro­pri­ate dis­po­si­tion” for a de­fen­dant fac­ing pun­ish­ment “for mul­ti­ple jury

con­vic­tions re­gard­ing her abuse of power as well as two counts felony per­jury.”

On Thurs­day, Kane, through her lawyer Marc Robert Stein­berg, sought a house-ar­rest study, claim­ing that she is a non­vi­o­lent of­fender with no prior record and a low risk of re­cidi­vism and the pri­mary care­giver for two mi­nor chil­dren and there­fore is an ap­pro­pri­ate can­di­date for house ar­rest.

But Steele ar­gued that dur­ing a pre­sen­tence in­ter­view by court of­fi­cials Kane re­ported she shares fifty-fifty cus­tody of her chil­dren with Mr. Kane.

“The com­mon­wealth sub­mits that, be­cause there is an­other par­ent with equal cus­tody of the chil­dren, this fac­tor should not weigh in fa­vor of house ar­rest,” Steele wrote.

Kane, 50, a first-term Demo­crat and the first woman ever to be elected to the state post, faces a pos­si­ble max­i­mum sen­tence of 14 to 28 years in state prison on felony charges of per­jury and mis­de­meanor charges of ob­struct­ing ad­min­is­tra­tion of law, of­fi­cial op­pres­sion, false swear­ing and con­spir­acy when she’s sen­tenced Oct. 24 by Judge Wendy Dem­chick-Al­loy.

State sen­tenc­ing guide­lines could al­low for less jail time for Kane, who has no crim­i­nal record.

Stein­berg, re­fer­ring to state sen­tenc­ing guide­lines, said the felony per­jury charge calls for a sen­tence rang­ing from pro­ba­tion to nine months and sug­gested house ar­rest would be an ap­pro­pri­ate pun­ish­ment.

While Steele did not re­veal the pre­cise sen­tence he will seek for Kane, he said house ar­rest, un­der the county’s In­ter­me­di­ate Pun­ish­ment Act, is a sen­tenc­ing al­ter­na­tive avail­able only to a de­fen­dant who would have other­wise re­ceived a county jail sen­tence. Steele added, “A de­fen­dant who is sen­tenced to a state prison sen­tence is not el­i­gi­ble for house ar­rest.”

Quot­ing county pro­ba­tion statis­tics, Steele said cur­rently there are only 60 con­victed de­fen­dants in the county un­der house ar­rest su­per­vi­sion, and of those, 42 were con­victed of driv­ing un­der the in­flu­ence. Thus, Steele said, there are only about 18 non-DUI of­fend­ers cur­rently un­der house ar­rest in the county.

“Clearly, based upon the small per­cent­age of nonDUI crim­i­nal cases end­ing with a sen­tence of house ar­rest in Mont­gomery County, this is a rare ex­cep­tion and not the rule,” Steele wrote.

Stein­berg, a lo­cal lawyer who was hired to rep­re­sent Kane only for the sen­tenc­ing phase of her case, ar­gued state law al­lows for house ar­rest as an al­ter­na­tive, ap­pro­pri­ate form of pun­ish­ment for non­vi­o­lent of­fend­ers. He said the sen­tenc­ing op­tion is avail­able “to make the of­fender more ac­count­able to the com­mu­nity and to help re­duce the county jail over­crowd­ing prob­lem while main­tain­ing pub­lic safety.”

If Kane, a for­mer Lack­awanna County prose­cu­tor who was elected at­tor­ney gen­eral in 2012 and was con­sid­ered a ris­ing star among Democrats, is ul­ti­mately given a house ar­rest sen­tence, her case could be trans­ferred to Lack­awanna County, Stein­berg sug­gested. Stein­berg claimed Lack­awanna County Com­mu­nity Cor­rec­tions of­fi­cials are will­ing to su­per­vise Kane on house ar­rest.

It’s un­clear when Dem­chick-Al­loy will rule on the mat­ter.

Kane was con­victed by a jury in Au­gust of charges she or­ches­trated the il­le­gal dis­clo­sure of se­cret grand jury in­for­ma­tion to the me­dia and en­gaged in acts de­signed to cover up her con­duct. Kane re­signed her post two days later and has re­mained free on own re­cog­ni­zance bail while await­ing sen­tenc­ing.

Kane’s trial lawyer Ger­ald L. Shargel hinted at an ap­peal, say­ing Kane’s de­fense team would “fight to the end.”

Kane did not tes­tify at trial.

At trial, Steele and co­pros­e­cu­tor Michelle Henry al­leged Kane or­ches­trated the il­le­gal re­lease of se­cret ma­te­ri­als per­tain­ing to the 2009 statewide grand jury No. 29 to a re­porter in or­der to ex­act “re­venge” on a for­mer state prose­cu­tor with whom she was feud­ing.

Kane also was con­victed of ly­ing to the 35th statewide grand jury in Novem­ber 2014 to cover up her leaks by ly­ing un­der oath when she claimed she never agreed to main­tain her se­crecy re­gard­ing the 2009 grand jury in­ves­ti­ga­tion.

Prose­cu­tors said they dis­cov­ered ev­i­dence that Kane signed a so-called “se­crecy oath” on her sec­ond day in of­fice on Jan. 17, 2013, promis­ing her se­crecy for statewide in­ves­ti­gat­ing grand ju­ries 1 through 32. The oath com­pelled Kane to main­tain the se­crecy of all mat­ters oc­cur­ring be­fore past and present statewide grand ju­ries, prose­cu­tors al­leged.

Kane claimed she did noth­ing wrong and has im­plied the charges were part of an ef­fort to force her out of of­fice be­cause she dis­cov­ered porno­graphic emails be­ing ex­changed be­tween state em­ploy­ees on state email ad­dresses.

How­ever, a judge ruled Kane could not raise the porno­graphic email de­fense at trial. De­fense lawyers hinted that might be the ba­sis for an even­tual ap­peal.

DIG­I­TAL FIRST ME­DIA FILE PHOTO

For­mer Penn­syl­va­nia At­tor­ney Gen­eral Kath­leen Kane, cen­ter, at her pre­lim­i­nary hear­ing at the Mont­gomery County Court House in Nor­ris­town Nov. 10, 2015.

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