Attorney General Kane expected to appear before state grand jury
HARRISBURG — Attorney General Kathleen Kane intends to travel to Norristown on Monday to appear before a state grand jury that’s investigating her office.
If she reports to the grand jury, as sources have indicated, it will be to comply with a subpoena.
Asked about the planned trip to Montgomery County, Kane’s aide Renee Martin reiterated, “The attorney general intends to meet her obligations.”
Martin said that, by law, she could not acknowledge the existence of a grand jury, whose workings are secret.
A close observer predicted Kane likely will testify.
The attorney general did not return phone calls Sunday.
The grand jury reportedly is investigating a leak from Kane’s office to the Philadelphia Daily News of confidential 2009 documents on a political activist whom prosecutors ultimately did not charge with a crime.
Thomas Carluccio, a Montgomery County criminal defense lawyer, is the special prosecutor heading the inquiry, The Philadelphia Inquirer reported.
Leaking grand jury material can result in a contempt of court citation, punishable by up to six months in prison.
The choices essentially are to “take the Fifth or answer the question,” said Wes Oliver, a law professor at Duquesne University.
Under the Fifth Amendment to the U.S. Constitution, ratified in 1791 as part of the Bill of Rights, a person cannot be required to give self-incriminating testimony. It’s unlikely a statewide politician with political aspirations would take the Fifth, experts said.
The question is expected to be whether Kane leaked or approved a leak of what might have been grand jury material.
The Philadelphia Inquirer reported that Kane twice failed to respond to the grand jury subpoena — once because of a scheduling conflict and the second time because of a car crash on Oct. 21.
She has been recovering in her home in Clarks Summit, near Scranton, since the crash. Her doctor diagnosed a concussion and cervical trauma, commonly referred to as whiplash, Martin has said.
Getting an extension for health reasons or needing more time before appearing before the grand jury are possible but unlikely options, experts said.
Last week, Martin said, the pain in Kane’s neck and back intensified and Kane planned to continue physical therapy in consultation with a neurologist. Her doctor prescribed an undisclosed type of medication.
Kane’s doctors advised that she not return to work before Nov. 24, Martin said. She keeps in touch with staff to run her office of 700-plus employees.
“I don’t look at the computer because it gives me headaches,” Kane told Pennlive.com in an interview last week. “A lot of decisions I need to make can be made over the phone — whatever needs to be done on the computer, I have printed out and brought to me.”
Kane was a rear-seat passenger in a state vehicle that hit a parked car in a 15 mph zone in Dunmore, just east of Scranton and south of Kane’s hometown. Police said the agent driving her Chevrolet Tahoe was not speeding. A second agent was in the back seat with Kane.
Kane was not wearing a seat belt and hit her head on the back of the front seat, Martin said. Both agents were injured in the crash, Kane’s office said.
Kane’s office did not release the police report for 10 days.
Kane told The Scranton Times-Tribune that she takes the blame for failing to provide timely information to the public.
“I didn’t think of it, to be honest with you,” said Kane, who blamed it on her political naivete. “I was just saying to somebody, ‘I didn’t think I was that important to say, “Hey, we were at a car accident. Here’s what happened.” ‘ But I guess it is interesting.
“Next car accident, it’ll be out,” she added. “I felt sick (after the crash). It wasn’t anything I thought, ‘Well, OK, I have to call the press.’ ”
She told the newspaper that she called her husband so he could tell their kids.
“I didn’t want them to be worried,” she said.
Taking pain medication does not disqualify someone from testifying before a grand jury, experts said, but a witness could argue that medication limits his or her ability to understand questions.
If that occurs in Kane’s case, Judge William Carpenter, who is overseeing the grand jury, likely would decide the issue.
“We always ask, ‘Are you under the influence of drugs or alcohol?’ ” said former Montgomery County District Attorney Bruce Castor, who is not involved in the leak investigation. “Frequently, the answer is yes.”
He said prosecutors typically follow up by asking whether the person understands what’s happening, and that answer usually is yes.
Castor said he does not recall a person’s being disqualified because of taking a legally prescribed medication.
“Unless you are on a heavy dose of codeine, it won’t affect your ability to testify,” said Oliver. If prescribed pain medication were a bar to testifying, “a lot of people could get out of a lot of testimony.”
Kane might be able to get an extension if she can show the need because of her injury, Oliver said. But he said that still might not preclude a prosecutor from asking whether the attorney general knew about, approved or did not approve a leak of information to a newspaper.
The grand jury’s term expires Dec. 31, but experts said if its work is not completed, a summary of its investigation could be transferred to another grand jury.
Brad Bumsted is Trib Total Media’s state Capitol reporter.