NORRISTOWN >> Montgomery County prosecutors maintain embattled Pennsylvania Attorney General Kathleen G. Kane’s claim that she is the victim of “selective and vindictive prosecution” is frivolous and not a basis on which to dismiss the alleged perjury charges she’s facing.
“In her most recently-filed pretrial motion, defendant asserts a selective and vindictive prosecution claim. In doing so, she writes yet another chapter in her wearied feud with individuals not employed by either the Montgomery County or Bucks County district attorney’s offices,” Montgomery County District Attorney Kevin R. Steele wrote in court papers filed on Monday. “In short, defendant’s selective and vindictive prosecution claim is frivolous.”
Steele argued Kane’s claim is frivolous “because there have been five independent determinations of probable cause.” Steele cited the grand jury presentment recommending criminal charges against Kane; the supervising grand jury judge’s approving the presentment; former District Attorney Risa Vetri Ferman’s conclusion, after her office’s own investigation, that criminal charges were warranted against Kane; and a district court judge moving the charges to trial after two preliminary hearings.
Steele has asked county Judge Wendy Demchick-Alloy to deny Kane’s requests for a dismissal of the perjury charges lodged against her last year and for an evidentiary hearing on her claim.
It’s unclear when Demchick-Alloy might rule on the matter. Kane faces trial Aug. 8 on 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.
Last week, Kane, through her lawyers, filed papers alleging two former prosecutors in her office, Frank G. Fina and E. Marc Costanzo, instigated the investigation against her after they became “incensed” by Kane’s review of their work in two high-profile cases, including the investigation of former Pennsylvania State University coach Jerry Sandusky.
Kane’s lawyers alleged Fina and Costanzo in May 2014 sent a letter to county Judge William R. Carpenter “to report the release of grand jury information” and suggested an investigation.
“Attorney General Kane was singled out for investigation and subsequent prosecution in this case as a result of the initiative of prosecutors with personal antagonism towards Attorney General Kane…,” Gerald L. Shargel, Kane’s lead defense lawyer, wrote in court filings. “Such selective and vindictive prosecution is unconstitutional, and, as a result, the charges in this case should be quashed in their entirety.”
But Steele argued under a selective prosecution claim the only decision subject to review is the “charging decision,” which was made by Ferman as the former district attorney. Steele argued Fina and Costanzo had no role in the decision to file charges against Kane.
“Because Fina and Costanzo had no role in the charging decision in this case, the claim fails as a matter of law,” Steele wrote.
Steele maintained Kane “alleges a grand conspiracy orchestrated by two prosecutors, who are not even prosecuting her.”
“Consequently, any action of Fina and Costanzo in relaying information to Judge Carpenter is not a part of the charging decision and is another reason her motion lacks merit,” Steele wrote.
With the charges against Kane, prosecutors allege the 49-year-old first-term Democrat orchestrated the release of secret information about the 2009 Investigating Grand Jury No. 29 to Christopher Brennan, then a reporter at The Daily News, in order to retaliate against a former state prosecutor, 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.
County prosecutors allege they 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, who is not seeking re-election, 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.
