- Associated Press - Sunday, February 15, 2015

HARRISBURG, Pa. (AP) - The Pennsylvania Supreme Court, not known for being shy about defending its prerogatives, has put itself in a curious situation.

After months of intrigue and court silence, the justices surprised Pennsylvania’s legal community by saying they would hear public arguments on Attorney General Kathleen Kane’s legal challenge to the court’s self-appointed power to launch special prosecutions.

The case in question is a court-ordered investigation into whether Kane’s office illegally shared secret investigative material with the Philadelphia Daily News. The result was a grand jury’s recommendation that Kane be charged with perjury and other offenses.

The justices may not ultimately agree with Kane that the courts lack the authority to appoint prosecutors to run grand juries or investigate her office. But, say lawyers and court watchers, the justices must at least clean up a murky and messy process that has been dogged by questions about legality and constitutionality.

“The court definitely needs to clarify this, both from the constitutional perspective and the procedural perspective,” said Michael Engle, a Philadelphia lawyer and past president of the Pennsylvania Association of Criminal Defense Lawyers who represented a witness in the court’s investigation. “The ground rules need to be clear to everybody.”

Not everything is.

The secret investigation became public in a Sept. 1 story in The Philadelphia Inquirer that cited anonymous sources.

No Pennsylvania statute authorizes court-appointed prosecutors and court officials say they have no written policy that spells out an appointment process. That did not stop the courts from appointing special prosecutors at least a handful of times before the Kane investigation.

Asked last fall about the process, the Supreme Court’s then-chief justice, Ronald Castille, said he can order the assignment of a special prosecutor, or a grand jury judge can apply to him for permission to appoint a special prosecutor if the judge finds that the attorney general’s office has a conflict of interest.

It is not clear that this case followed that process.

On Jan. 21, when the Supreme Court finally acknowledged the existence of the investigation, it unsealed 80 pages of case records and revealed the justices’ plan to consider Kane’s legal challenge.

Absent from the unsealed records is an application by the grand jury judge, Montgomery County Judge William Carpenter, to appoint a special prosecutor, or a record of the Supreme Court’s explicit permission. Rather, there was a letter in which Carpenter advised Castille that he had appointed a special prosecutor.

It also is not clear whether any other Supreme Court justices were aware of the investigation before the Inquirer published its story. Some lawyers now wonder whether the willingness to hear Kane’s challenge is a repudiation of a process the other justices never had a chance to stop.

“It’s a bad thing if a president judge or a chief justice starts to think they don’t need to consult with their colleagues,” said West Chester lawyer Samuel Stretton, who specializes in defending public officials accused of wrongdoing or misconduct.

Castille retired from the court Dec. 31 after reaching the mandatory retirement age of 70. Castille and each justice, including new Chief Justice Thomas Saylor, either declined comment or did not return calls requesting comment.

Kane has not been charged, and it is not clear if she ever will be. Carpenter sent the grand jury’s recommendations to Montgomery County prosecutors before the justices blocked, for the time being, any prosecution stemming from the panel’s findings. Montgomery County District Attorney Risa Ferman has not said what she will do with it.

It is important for the court to deal quickly with a complaint from the state’s top law enforcement officer, said Bruce L. Castor Jr., a former Montgomery County district attorney.

And Castor sees a path for the justices to take: Create clear rules for the appointment of a special prosecutor and limit it to the enforcement of court orders; encourage the Legislature to establish a process for situations when the attorney general’s office must be investigated; and order the grand jury’s findings to be used only as a referral to Ferman’s office for her to investigate, but not a basis for filing charges.

“Those,” said Castor, “are the most productive courses of action I can see.”


Marc Levy covers politics and government for The Associated Press in Pennsylvania. He can be reached at [email protected] Follow him on Twitter at www.twitter.com/timelywriter.

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