Pennsylvania AG Kane grand jury may miss New Year’s Eve deadline
HARRISBURG — There’s nothing magical about the New Year’s Eve deadline for a grand jury to finish its work examining whether Attorney General Kathleen Kane violated grand jury secrecy by leaking documents to a Philadelphia newspaper, and the outcome could take weeks or months to be revealed, legal experts said.
Several people close to parties involved in the investigation suggest the grand jury could continue to meet through mid-January.
“We don’t discuss the grand jury activities. It is not public,” Kane’s spokeswoman, Renee Martin, said.
Kane’s lawyers have said she did nothing wrong and committed no crime.
Even if resolution of the matter is imminent, experts said, the result may not be.
“There’s no way to anticipate the timeline,” said longtime criminal defense attorney William C. Costopoulous of Lemoyne in Cumberland County.
Judges sometimes seal grand jury presentments. And the grand jury’s recommendations could be referred to a district attorney, who may decide that further investigation is necessary.
The results could range from clearing Kane, or making no report; directing Kane to explain at a hearing why she should not be held in contempt of court; or recommending criminal charges such as perjury or obstruction of justice.
If the grand jury finds no wrongdoing or need for a critical report, it could issue a report specifically clearing the parties involved, Costopoulous said.
“The range of possibilities is fairly broad,” said Bruce Antkowiak, a former federal prosecutor and law professor at St. Vincent College in Unity.
Kane testified last month before the grand jury in Montgomery County and acknowledged that she knew her office provided the Philadelphia Daily News information from a 2009 case about a man never charged with a crime, possibly to embarrass a former prosecutor with whom Kane is feuding.
Kane of Clarks Summit near Scranton is the first woman and first Democrat elected as attorney general. She said she believed the material leaked was not covered by grand jury secrecy.
The investigation of a statewide law enforcement official by a court-appointed special prosecutor is unusual, if not unprecedented, experts said. Pennsylvania Supreme Court Chief Justice Ronald D. Castille, who must retire Wednesday because he is 70, appointed as prosecutor Thomas Carluccio, a Norristown attorney selected by Montgomery County Judge William Carpenter.
Castille said there’s precedent for court-appointed special prosecutors to handle grand jury leaks.
But since the state’s first elected attorney general took office in 1980, none has undergone such an inquiry, said G. Terry Madonna, a political science professor at Franklin & Marshall College in Lancaster. Former Attorney General Ernie Preate, a Scranton Republican, resigned in 1995 upon pleading guilty to a federal mail fraud charge.
With grand jury secrecy, some “assumptions must be made” to analyze the investigation, said former Montgomery County District Attorney Bruce Castor, a Republican county commissioner.
“The first assumption I make is that the special prosecutor has no enforcement authority over the laws of the commonwealth,” Castor said.
“Anything the special prosecutor uncovers could be inadmissible if it was gathered by a person without the authority to do so.”
That may result in a referral of any findings to a district attorney, who may want to “reinvestigate” by talking with witnesses and reviewing documents, Castor said.
Castor and experts believe the court has authority to decide contempt of court, which they consider an “offense against the court.” The penalty for contempt in a grand jury leak is up to six months in prison.
There’s inherent authority for the court to investigate a leak when “there is a conflict of interest,” Antkowiak said. Kane “could certainly not investigate herself.”
“If there’s no solution, a potentially serious criminal act goes unaddressed,” Antkowiak said.
Kane has said she intends to seek re-election in 2016. But a critical grand jury report could be “very nasty” and affect her career, Castor said. Nothing prevents the transfer of the grand jury’s work to another grand jury, if needed, though that could cause legal obstacles and delays, he said.
Brad Bumsted is Trib Total Media’s state Capitol reporter. Reach him at 717-787-1405 or [email protected].