- Associated Press - Monday, February 22, 2016

HARRISBURG, Pa. (AP) - Lawyers who are prosecuting a Pennsylvania Supreme Court justice on ethics charges argued in a filing Monday that they should be allowed to use emails that he was sent, even if they can’t prove he ever read them.

Judicial Conduct Board attorneys said the emails fit a pattern because their content is similar to salacious and objectionable emails that they know were opened by Justice Michael Eakin.

“A comparison of the content of the emails that Justice Eakin sent and the content of the emails that he received demonstrates that the humor contained in each is similar,” board attorneys wrote in response to a set of questions by the Court of Judicial Discipline.

“This similarity of content bespeaks the fact that Justice Eakin knowingly accepted such emails from the members of (a) golfing group and Attorney (Terry) McGowan and that he, in fact, enjoyed such attempts at humor as were contained in the emails,” the board wrote.

Eakin is currently suspended with pay while he awaits a March trial in Philadelphia on ethics charges that could result in his removal from the bench.



To prepare for trial, the court posed a number of questions, including whether Eakin fully disclosed the emails the board now has when the scandal first broke in 2014. At that time, he was cleared, but the more recent disclosure of Eakin’s emails by Attorney General Kathleen Kane led the board to launch a fresh investigation.

The board said Eakin did not provide a full set of emails that went through his private “John Smith” account at Yahoo.com.

“In essence, Justice Eakin’s position on his ‘John Smith’ emails in the 2014 investigation was that he did not retain emails and, as such, could not reconstruct his email history in order to determine whether he sent or received any emails that were inappropriate or offensive and that he did not review or recollect the emails that were disseminated to the media,” the board said.

The filing disclosed that a lawyer appointed by the Administrative Office of Pennsylvania Courts filed a report in December that found no sexual harassment among members of Eakin’s staff. The board has said email traffic between Eakin and a deputy attorney general, about a female employee of Eakin’s, was a “sexually suggestive thread/conversation.” The Judicial Conduct Board argued the report isn’t admissible.

Also Monday, the board and Eakin’s lawyers told the court that they have made a good-faith effort to mediate the case through prominent Philadelphia lawyer Dick Sprague, and said they wanted a hearing for the court to consider “additional proposed stipulations which could lead to a resolution.”

Eakin’s lawyer, Bill Costopoulos, declined comment.

“All I can say is that I cannot comment beyond the four corners of that which was filed,” Costopoulos said late Monday. “I can tell you that I believe the Court of Judicial Discipline will be setting a hearing in the very near future at which time everything will be addressed on the court floor, in a public setting.”

Eakin, a Republican and former Cumberland County district attorney, has been on the high court since 2002. He has apologized for emails he’s described as insensitive but argued they did not merit discipline.

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