NORRISTOWN >> A Montgomery County judge has ruled that testimony about a pornographic email investigation conducted by embattled Pennsylvania Attorney General Kathleen Kane cannot become part of the defense strategy at Kane’s upcoming perjury trial.
In an order dated July 28, Judge Wendy Demchick-Alloy granted a request by county prosecutors to bar Kane from discussing the porn email investigation when her trial on alleged perjury charges commences on Aug. 8. The judge did not elaborate on her reasons for the ruling.
Kane has repeatedly implied the perjury-related charges lodged against her were part of an effort by detractors to force her out of office because she discovered pornographic emails being exchanged between state employees on state email addresses.
But during a pretrial hearing earlier this week, District Attorney Kevin R. Steele and co-prosecutor Michelle Henry argued any public efforts to raise the issue of pornographic emails at trial can only be viewed as an attempt to distract and influence a jury. “This is nothing more than a distraction, a red herring. It simply isn’t relevant to this case,” Henry argued to the judge. “It would lead to a trial within a trial.”
Kane, 50, a first-term Democrat who is not seeking re-election, 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 conduct.
With the charges against Kane, prosecutors allege she orchestrated the release of secret information in June 2014 about the 2009 Investigating Grand Jury No. 29 to a reporter at The Daily News, in order to retaliate against a former state prosecutor with whom she allegedly was feuding and who she believed provided information in March 2014 to reporters at 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.
Kane has repeatedly claimed she did nothing wrong.
Steele and Henry have not revealed if they will call former state prosecutors with whom Kane allegedly was feuding as trial witnesses to prove the retaliation motive.
But defense lawyer Seth C. Farber had argued the porn email investigation would be relevant if prosecutors call those former attorney general employees with whom Kane was allegedly feuding.
“Because the commonwealth apparently intends to present motive evidence any evidence that Attorney General Kane can introduce to disprove that motive must be relevant…such evidence would tend to make the commonwealth’s proffered motive less probable and it would be of consequence in determining the action,” defense lawyers argued in court papers.
Farber and co-defense lawyers Douglas K. Rosenblum, Gerald L. Shargel, Ross M. Kramer and Amil Minora, argued Kane “had a far more powerful means of retaliation at her disposal had she been inclined to use it.”
Specifically, the defense lawyers argued in court papers, there is evidence Kane “had access to pornographic, racist, misogynistic, sexist, homophobic, obscene, religiously offensive or otherwise inappropriate” emails sent or received by former state prosecutors on state computers.
“The fact that she did not publicly disclose any of that information is relevant evidence that she did not have any motive to retaliate…,” defense lawyers wrote in court papers.
In a response, prosecutors pointed out that while the content of the emails would be considered offensive to many, the images by all accounts appear to be legal. No arrests have been made as a result of the attorney general’s review of the alleged trading of the offensive emails by current or former employees and their associates, “suggesting of course that nothing criminal in nature occurred,” prosecutors wrote in court papers.
