NORRISTOWN >> Lawyers for a Philadelphia newspaper have asked a judge to quash the request of Montgomery County prosecutors who are seeking original documents leaked to the newspaper allegedly at the direction of Pennsylvania Attorney General Kathleen G. Kane.
Michael A. Schwartz, a lawyer representing Philadelphia Media Network, the parent company of The Daily News and The Inquirer, and reporter Christopher Brennan, filed papers in county court on Friday, raising Shield Law protections as the reason to quash a Jan. 27 subpoena issued by prosecutors who seek documents to use at Kane’s upcoming trial on alleged perjury charges.
“First, because the original documents (and forensic testing on, or other analysis of, these documents) could be used to identify Mr. Brennan’s confidential source, the Pennsylvania Shield Law provides absolute protection against their forced disclosure,” Schwartz wrote in court documents.
“Second, because the commonwealth has not established that the original, un-redacted documents are crucial to its case against Kathleen Kane, the qualified Reporter’s Privilege (under the U.S. and Pennsylvania constitutions) protects against the documents’ forced disclosure,” Schwartz added.
Judge Wendy Demchick-Alloy, who will preside over Kane’s Aug. 8 perjury trial, will hold a hearing on the matter at a later date.
Kane, 49, 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 alleged conduct.
With the charges, authorities alleged Kane orchestrated the release of secret information about the 2009 Investigating Grand Jury No. 29 to Brennan, then at The Daily News, in order to retaliate against a former state prosecutor, Frank Fina, with whom she was feuding and who she believed provided information to 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.
Brennan previously invoked the Shield Law when he testified two years ago under subpoena before the 35th statewide grand jury investigating Kane so as not “to disclose the identity of the confidential source or to disclose any information that could lead to the discovery of the source’s identity,” Schwartz wrote in court papers. Schwartz said he provided to the special prosecutor copies, but not the originals, of the documents that Brennan received from the confidential source “but redacted from those documents handwritten markings that could lead to the discovery of the source’s identity.”
District Attorney Kevin R. Steele, who is leading the prosecution against Kane, now has subpoenaed the newspaper company for the original, un-redacted documents. During a hearing last week, Steele told the judge prosecutors want to perform forensic testing on the documents.
Schwartz said he has informed Steele that he objected to the recent subpoena because complying with it could reveal Brennan’s confidential source. Schwartz has maintained custody of the original documents, court papers indicate.
Additionally, Schwartz argued in court papers, as reported by the grand jury, several witnesses have already testified and, presumably, will testify again at trial, that Kane directed the leak of the documents to Brennan. Thus, Schwartz argued, prosecutors cannot show that obtaining the original documents and performing forensic testing on them is crucial to their case.
County prosecutors alleged they also discovered evidence that Kane signed a so-called “secrecy oath” on her second day in office on Jan. 17, 2013, promising her secrecy for statewide investigating grand juries one through 32. The oath compelled Kane to maintain the secrecy of all matters occurring before past and present statewide grand juries, prosecutors alleged.
Kane has claimed she did nothing wrong and has implied the charges are part of an effort to force her out of office because she discovered pornographic emails being exchanged between state employees on state email addresses.
Kane, who is represented by defense lawyer Gerald Shargel, has continued to maintain her innocence and vowed to keep fighting to clear her name while serving out the remainder of her term. Kane is up for re-election this year.
