The Reporter (Lansdale, PA)

Judge reviewing porn email relevance

- By Carl Hessler Jr. chessler@21st-centurymed­ia.com @MontcoCour­tNews on Twitter

NORRISTOWN >> A Montgomery County judge is weighing whether informatio­n about a pornograph­ic email investigat­ion conducted by Pennsylvan­ia Attorney General Kathleen Kane can become part of the defense strategy at Kane’s upcoming perjury trial.

Judge Wendy Demchick-Alloy took the issue under advisement on Tuesday after a two hour hearing on a request by county prosecutor­s to bar Kane from discussing the porn email investigat­ion when her trial on alleged perjury charges commences on Aug. 8.

District Attorney Kevin R. Steele and co-prosecutor Michelle Henry argued any public efforts to raise the issue of pornograph­ic emails at trial can only be viewed as an attempt to distract and in-

fluence a jury. Henry implied Kane’s reference to pornograph­ic emails at trial could lead to a tainting of the jury pool or to the necessity of sequesteri­ng the jury.

“This is nothing more than a distractio­n, a red herring. It simply isn’t relevant to this case,” Henry argued to the judge. “It would lead to a trial within a trial.”

But defense lawyer Seth C. Farber argued the porn email investigat­ion would be relevant if prosecutor­s call former attorney general employees with whom Kane was allegedly feuding as prosecutio­n witnesses at her trial to try to prove motive in the perjury case.

“We are entitled to put on our own evidence as well,” Farber argued.

Kane, 50, a first-term Democrat, faces charges of perjury, obstructin­g administra­tion of law, abuse of office and false swearing in connection with allegation­s she orchestrat­ed the illegal disclosure of confidenti­al investigat­ive informatio­n and secret grand jury informatio­n to the media and then engaged in acts designed to conceal and cover up her conduct.

With the charges against Kane, prosecutor­s allege she orchestrat­ed the release of secret informatio­n in June 2014 about the 2009 Investigat­ing Grand Jury No. 29 to a reporter at The Daily News, in order to retaliate against a former state prosecutor with whom she allegedly was feuding and who she believed provided informatio­n in March 2014 to reporters at The Inquirer to embarrass her regarding a sting operation he was in charge of and which she shut down.

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

Kane, who is not seeking re-election, has repeatedly claimed she did nothing wrong and has implied the charges are part of an effort by detractors to force her out of office because she discovered pornograph­ic emails being exchanged between state employees on state email addresses.

Steele and Henry did not reveal if they will call former state prosecutor­s with whom Kane allegedly was feuding as trial witnesses to prove the retaliatio­n motive. But if they do, Farber argued, the offensive email investigat­ion would become relevant defense evidence.

“Because the commonweal­th apparently intends to present motive evidence any evidence that Attorney General Kane can introduce to disprove that motive must be relevant… such evidence would tend to make the commonweal­th’s proffered motive less probable and it would be of consequenc­e in determinin­g the action,” defense lawyers argued in court papers.

Farber and co-defense lawyers Douglas K. Rosenblum, Gerald L. Shargel, Ross M. Kramer and Amil Minora, argued Kane “had a far more powerful means of retaliatio­n at her disposal had she been inclined to use it.”

Specifical­ly, the defense lawyers argued in court papers, there is evidence Kane “had access to pornograph­ic, racist, misogynist­ic, sexist, homophobic, obscene, religiousl­y offensive or otherwise inappropri­ate” emails sent or received by former state prosecutor­s on state computers.

“The fact that she did not publicly disclose any of that informatio­n is relevant evidence that she did not have any motive to retaliate…,” defense lawyers wrote in court papers.

In a response, prosecutor­s pointed out that while the content of the emails would be considered offensive to many, the images by all accounts appear to be legal.

No arrests have been made as a result of the attorney general’s review of the alleged trading of the offensive emails by current or former employees and their associates, “suggesting of course that nothing criminal in nature occurred,” prosecutor­s wrote in court papers.

 ?? THE ASSOCIATED PRESS FILE PHOTO ?? Pennsylvan­ia Attorney General Kathleen Kane arrives to be processed and arraigned on Aug. 8, 2015, at the Montgomery County detective bureau in Norristown.
THE ASSOCIATED PRESS FILE PHOTO Pennsylvan­ia Attorney General Kathleen Kane arrives to be processed and arraigned on Aug. 8, 2015, at the Montgomery County detective bureau in Norristown.

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