Pennsylvania Attorney General Kathleen Kane leaves the courtroom for a short recess on the second day of her trial at the Montgomery County Courthouse in Norristown.

Pennsylvania Attorney General Kathleen Kane leaves the courtroom for a short recess on the second day of her trial at the Montgomery County Courthouse in Norristown.

Dan Gleiter, PennLive.com/ Pool photo

Kathleen Kane’s hail-Mary appeal: ‘Selective and Vindictive’ Prosecution

The convicted Attorney General’s lawyers are already laying the groundwork.

While she was campaigning to be Pennsylvania’s first female attorney general, Kathleen Kane branded herself as a fighter — someone who wouldn’t get wrapped up in politics, but would instead combat what she saw as a network of complacency in Pennsylvania’s judicial system.

She’s thrown in the towel on politics. But Pennsylvania’s attorney general is still fighting.

After she was convicted on charges of perjury, conspiracy and obstruction, Kane’s team of lawyers is already laying the groundwork for filing an appeal of her conviction. Tuesday night, a jury of six men and six women convicted Kane on nine charges, including two counts of felony perjury that could send her to prison for a maximum of 14 years. Should the charges stick, she’s required to resign or she’ll be removed from office by the time she’s sentenced.

Based on the way her lead defense attorney and noted mob defender Gerald Shargel was talking last night, they’ll likely focus their appeal by arguing that charges should have been dismissed. Kane, in their eyes, was the target of selective and vindictive prosecution.

This means Kane wanted to fight the charges against her on the basis that she was targeted by the government for malicious reasons. And this argument fits neatly in the narrative she’s spouted for more than a year: That Pennsylvania government, made up of largely white males (this is true), is out to get her because she vowed to expose the porn and racism and sexism some of them were emailing each other on the state’s dime. It’s the “Old Boys’ Club,” she’s called it. And Kane says they’ve wanted to bury her since she was elected.

“We will continue this litigation,” Shargel said Tuesday night after the verdict. “We will continue this fight because we believe that our client has been wrongfully accused of misconduct.”

In April, Kane’s team of attorneys filed a motion to dismiss all the charges against her on the basis of “selective and vindictive prosecution,” writing that “leaks of grand jury information are not uncommon; neither are disclosures of other confidential information about criminal investigations.”

Montgomery County District Attorney Kevin Steele said the motion was frivolous, and pointed out that charges were filed on the recommendation of a grand jury, not a government official or otherwise. Montgomery County Judge Wendy Demchick-Alloy in June denied the motion in a one-sentence order.

In order to show selective and vindictive prosecution and have it be used as a full defense against criminal charges, a defendant has to show two things: 1. Other people in similar situations as the defendant aren’t generally prosecuted and 2. The defendant has been intentionally singled out.

Prosecution of this type of conduct

Kathleen Kane's defense team headed by Gerald Shargel speaks to the press after the verdict.

Kathleen Kane's defense team headed by Gerald Shargel speaks to the press after the verdict.

ED HILLE / Staff Photographer/ Pool photo

Kane’s lawyers are not going to have a hard time proving the first part, at least as it relates to some of the charges Kane faces. Leaks of grand jury information have been common in the last several years in Pennsylvania. Perjury after the fact? Not so much.

In 2007, several months before a grand jury recommended charges against casino magnate Louis DeNaples, media reported he was being investigated by a grand jury. In 2011, about six months before charges against Jerry Sandusky were announced, the Harrisburg Patriot-News reported the former Penn State football coach was being investigated, citing five sources.   

Both of those leaks were investigated by special prosecutors. Neither investigation led to charges against anyone.

Then there are the leaks associated with Kane. She was convicted of orchestrating the leaking of grand jury information to the Philadelphia Daily News for an article that ran in June 2014 about an abandoned investigation into former Philadelphia NAACP leader J. Whyatt Mondesire. Witnesses at her trial said she was motivated to exact revenge on former prosecutor Frank Fina — who led the Mondesire investigation — after an Inquirer story detailed how she dropped a sting case against Philadelphia politicians. Tucked in that story was the revelation that the person who offered gifts to the politicians, Tyron Ali, had been the subject of a grand jury investigation.   

Leaks continued to abound around Kane. The news that a grand jury was investigating her for leaking grand jury information was leaked to the media in early 2015, months before she was charged. And her former political consultant who testified against her last week said it was clear someone in that grand jury investigation was leaking to Kane, as she knew when and how he testified.

Later in 2015, the Inquirer ran a story accusing Kane of quashing subpoenas in a 2013 grand jury casino investigation involving Naples. This was leaked information. Bruce Beemer, still with the Office of the Attorney General at the time, declined to comment on the story because of grand jury secrecy rules.  

Was the government out to get her?

Kathleen Kane delivers a press conference in August after charges are filed against her.

Kathleen Kane delivers a press conference in August after charges are filed against her.

Screenshot via livestream

The idea that Kane was the victim of a targeted prosecution is going to be more difficult to prove, largely because there were at least five independent hearings and gatherings to determine probable cause in the case. Most notably, she was charged by the District Attorney in Montgomery County because a grand jury recommended charges against her — a move that could shield prosecutors from this kind of defense.

Kane and her attorneys have claimed that she’s been targeted based on her lawful actions while serving as the attorney general that — and she’s right here — didn’t really sit well with folks in the Office of the Attorney General at the time.

First, Kane ran on the premise that she was going to probe the Jerry Sandusky investigation, implying while she was running for the Office of the Attorney General that her predecessor Tom Corbett slow-walked the investigation for political reasons and failed to bring Sandusky to justice as soon as he could have. Her vow to look deeply into the Sandusky case is largely what allowed her to become the first woman and the first Democrat to be elected to serve as the Pennsylvania attorney general.

So one of her first moves once she took office in January 2013 was launching that investigation. She hired an independent prosecutor H. Geoffrey Moulton to parse through documents, conduct interviews with people in and out of the office and to go through emails and other communications sent by people in the office at the time of the Sandusky investigation, including Fina’s.

Moulton didn’t find any evidence to support the conclusion that Corbett and co. didn’t bring Sandusky to justice as soon as they could, at least not for purely political reasons (like, as Kane surmised, because Corbett was launching a bid to run for governor). What Moulton did find in the process was unexpected, but led to what’s known today as Porngate.

He found that ex-employees in the Office of the Attorney General were fraternizing with each other and with other members of the judicial system in Pennsylvania by passing around pornographic, racist and sexist emails on their state-owned computers.

The Porngate scandal has since exploded. Two state Supreme Court justices were ensnared in it, as were dozens of employees in the Office of the Attorney General as well as lawyers and judges across the state. Philadelphia District Attorney Seth Williams was, too, when he refused to fire Fina and prosecutor Marc Costanzo, both of whom were wrapped up in Porngate and had moved on to work for Williams.

Kane’s lawyers will likely argue that it was Fina and Costanzo who set the grand jury investigation into the Mondesire leak in motion. In May 2014, before the Daily News‘ story even ran, they’d gotten wind that the paper was working on an article about the Mondesire investigation and went to Judge William Carpenter, asking him to open a grand jury investigation into who leaked what and when.

Two years later, Kane stands convicted of being the person who leaked information about the Mondesire investigation, or at least was the person who directed others to do so. Now, all her lawyers have to do is prove she shouldn’t have been charged in the first place.

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