Judge reviewing porn email relevance
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.