Friday, March 28, 2014

The Cautionary Instruction: Dustup between AG, DA, lead prosecutor has consequences

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
March 28, 2014
The attorney general of Pennsylvania, a former lead prosecutor in the AG’s office and the district attorney of Philadelphia are embroiled in a bitter dispute. The acrimony boiled over after Attorney General Kathleen Kane decided to drop a political corruption probe in Philadelphia.
However, the seeds of discontent were sowed soon after Kane’s swearing-in when she launched an investigation into the Jerry Sandusky investigation. One of the primary prosecutors in the Sandusky investigation was Frank G. Fina, the same prosecutor who oversaw the Philadelphia corruption probe. Fina is now front and center in this ugly public dispute along with his new boss Philadelphia District Attorney Seth Williams.
On March 17, the Philadelphia Inquirer reported that Kane's office shut down a corruption investigation that reportedly involved at least four Philadelphia Democrats accepting payments ranging from $500 to $2,000.
The following day, Kane held a press conference saying that she dropped the investigation because it became "nonprosecutable" once charges were dismissed against the informant in the case. Kane also said that the investigation was mismanaged, and that her office found evidence that it was racially biased.
Several days later Kane issue a statement that read in part, "The majority of the work, including 91 percent of the recordings by a confidential informant, took place 18 months prior to my inauguration, through three former attorneys general.”
"Furthermore, I do not have any animosity towards the lead prosecutor of this case. I do not know the former prosecutor any more than I know the individuals targeted in this investigation,” said Kane.
Fina countered in a Philadelphia Inquirer op-ed. “My colleagues and I conducted our investigation honestly, ably, and with integrity. I am willing to sit down at the same table with Kane … where we can each respond to any questions that are posed about the investigation.”
Williams was also sharply critical of Kane. The AG “drops a case supported by hundreds of hours of devastating tapes because the main witness got a deal on a bunch of government fraud charges," he wrote. "As a DA, I think this might be the most disturbing aspect of the whole sordid spectacle. You don't have to be a prosecutor to know this is how it's done."
This public spectacle should raise grave concerns for elected prosecutors. The buck stops with the attorney general or district attorney. Prosecutors have wide discretion and have to make difficult and often unpopular decisions every day.
Those decisions are generally made with the input of line prosecutors, investigators and staff. There may be dissent within the office on how or whether to proceed. Should that dissent be aired in public?
Should an elected prosecutor, accountable to the citizens who vote her into office, also be accountable to subordinate attorneys within her office? That would be a difficult way to run a prosecutor’s office.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.
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