Gov. Wolf signs justice reform legislation

With the Legislature out of session for the summer, Gov. Tom Wolf on Monday ceremonially signed six bills designed to boost the rights of crime victims in Pennsylvania, reported the Pennsylvania Capital-Star.

The legislation Wolf officially signed into law on June 28 are, per his office:

“House Bill 315, which criminalizes female genital mutilation by making it a first-degree felony.

“House Bill 502, which amends the Crime Victims Act to allow the victim to be present in any criminal proceeding unless the court determines the victim’s own testimony would be altered by hearing other witnesses.

“House Bill 504, which prevents prosecutors bringing up the victim’s sexual history or prior allegations of sexual abuse while prosecuting certain crimes.

“Senate Bill 399, which makes updates to the Sexual Assault Testing and Evidence Collection Act, including requiring the Pennsylvania State Police to create procedures for anonymous victims and establishing timelines for submitting, testing, and storing rape kits.

“Senate Bill 469, which establishes procedures protecting victims and witnesses with intellectual disabilities or autism spectrum disorder, including allowing for testimony and questioning to take place outside of a courtroom.

“Senate Bill 479, which expands the list of crimes for which an out-of-court statement made by a child under 12 can be used.”

The commonwealth has in recent years made headlines for bipartisan criminal justice reform, including a landmark law that automatically seals certain criminal records.

But at the Capitol on Monday, state Victim Advocate Jennifer Storm said this legislative session has been just as profound for crime victims. She called 2019 a “historic and unprecedented” year, thanks to the passage of nine bills that make “necessary and vital changes” to existing state law.

“At a time when our system is ever-changing and reforming,” Storm said, “we are obligated to ensure that crime victims are at the forefront of everything we do.”

Flanked by several state lawmakers, Wolf said he would “continue to pursue this goal into the fall session.”

Storm also mentioned Marsy’s Law, a proposed constitutional amendment that would enshrine crime victims statutes in the state Constitution.

It does not require Wolf’s signature, as Storm noted. Rather, “it will be the citizens of Pennsylvania who will decide if it will become law,” this November.

Critics, most prominently the state chapter of the American Civil Liberties Union, say Marsy’s Law will endanger the due process rights of the accused.

Storm has rejected those concerns, countering that the amendment will simply give crime victims recourse if their rights are violated — something they don’t have at the moment.

“Marsy’s Law changes that,” she said. “It is in my humble opinion the most important thing we can do for victims.”

Wolf has publicly backed the proposal.

“There’s a balance we’re trying to strike,” Wolf said in a response to a reporter’s question about the ACLU’s objections. “I’m not a big believer in slippery slope arguments.”

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GateHouse:Another Pennsylvania prosecutor on the hot seat

Matthew T. Mangino

GateHouse News

August 26, 2016

Pennsylvania’s top law enforcement officer was convicted, resigned and faces a jail sentence. This week, we learn the top prosecutor in the state’s largest jurisdiction is the subject of an expanding FBI probe. Philadelphia’s district attorney, Seth Williams, is on the hot seat.

Williams defeated 14-year incumbent Lynn Abraham in 2009. Abraham had been much maligned for her fierce pursuit of the death penalty, but as a public servant she never ended up on the other side of the law.

Pennsylvania has a dubious history of political corruption. Former Attorney General Kathleen Kane just resigned in disgrace. Former Treasurer Rob McCord resigned under federal indictment in 2015. Another former Treasurer, Barbara Hafer, was recently indicted — not to mention two Supreme Court Justices who recently resigned after being embroiled in the Kane/Porngate scandal.

Now it is Seth Williams’ turn. He has done nothing to endear himself to leaders in his own party.

When Governor Tom Wolf declared a moratorium on the death penalty to complete a study on its operation, Williams filed a King’s Bench action before the Pennsylvania Supreme Court challenging the governor’s constitutional authority to grant reprieves.

The first case the governor chose to exercise his authority was that of Terry Williams, a case that gained national attention regarding his guilt. Seth Williams argued that Governor Wolf’s reprieve was inconsistent with the historical use of the constitutional power.

Then Seth Williams chose to hire former attorney general prosecutor Frank Fina. Fina was a prominent figure in the Kane prosecution. Fina was irked by Kane’s reinvestigation of the Jerry Sandusky child sex scandal, a case he investigated while in the attorney general’s office. Fina is alleged to have leaked embarrassing information about Kane that ultimately led to her self-destruction.

Later when it was revealed that Fina was involved in the distribution of racist and pornographic emails while in the AG’s office, pressure began to mount on Williams to fire Fina, reported The Legal Intelligencer.

Although Williams decided to transfer Fina out of the special investigations unit, Williams was warned that the scandal was likely to continue and could affect some prosecutions being brought by his office.

Williams decided that Fina and two other staffers would get sensitivity training but keep their jobs. Williams said in a statement that Fina, and the others, had regret and remorse. Fina has since left the office. The problems for Williams have taken on more serious tone. This week, according to the Philadelphia Inquirer, Williams reported receiving $160,050 in gifts from 2010 to 2015. Gifts that were not previously included on his mandatory annual financial interests statements.

Williams failed to report receiving a free $45,000 roof repair on his home from a New Jersey builder, cash gifts of $1,500 and $10,000 from friends, and $20,800 in free airfare and lodging for vacations to Key West, Las Vegas, Virginia, and the Dominican Republic.

Williams also received $10,000 in travel expenses for an Eisenhower Fellowship program in Australia and South Africa, $5,000 from the Ministry of Justice of Thailand to travel there to teach leadership classes, and free trips to several state and national prosecutorial forums, reported the Inquirer.

Also it was revealed this week that a federal probe into the Williams’ political and personal finances has expanded to include a nonprofit he founded.

According to the Inquirer, a foundation, which Williams started in 2011, received a federal subpoena for financial documents. That’s a new phase of an ongoing probe, which for more than a year has been exploring whether Williams misspent political funds on personal expenses.

Williams was defiant in the face of reasonable action on the part of the governor and obstinate when it was revealed that some of his controversial new staff did not have “clean hands.” He now faces even greater challenges to his political survival. Late this week, Bill Bunch of the Philadelphia Daily News wrote, “Philadelphia desperately needs a new district attorney.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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The Crime Report: Pennsylvania’s Shakespearean Tragedy

Matthew T. Mangino

The Crime Report

August 19, 2016

The curtain has closed on a Pennsylvania political tragedy of Shakespearian proportion—a drama that included sex, rivalries, secret meetings, corruption, impeachment, a public trial.  and a litany of disgraced leaders.

Pennsylvania Attorney General Kathleen Kane, who resigned this week,was the first woman and first Democrat elected attorney general in a state that only began electing its attorney general in 1980. She campaigned as an outsider —a non-politician who had never before run for public office---who could shake up establishment politics in her state.

But her rise and fall offers a  lesson about the importance of experience in running senior criminal justice agencies—not to mention holding high government office.

As we approach a presidential election pitting a self-proclaimed outsider against maybe the ultimate insider, there is something to be said for experience. Although President Obama said “There is nothing that truly prepares you for the demands of the Oval Office,” understanding compromise that comes with being a U.S. Senator, diplomacy that comes with being secretary of state, and humility that comes with being first lady can be helpful.

Kane’s lack of experience running a large office, dealing with the public scrutiny of high political office, and the failure to understand the nuances of politics proved disastrous for the citizens of Pennsylvania and has struck at the very core of the state’s criminal justice system

A jury of six men and six women took little more than four hours to convict Kane of perjury, conspiracy, official oppression, and false swearing. Her trial began last week and was highlighted by testimony from three insiders: ex-first deputy Bruce Beemer; a former aide and former beau, Adrian King; and political confidant and consultant Josh Morrow.

Her perjury conviction is a felony and can land her in prison.

Kane was a rising star in Pennsylvania politics.  The former assistant county prosecutor won by an unexpectedly large margin when she beat a county prosecutor who was the son-in-law of the state’s first elected attorney general, Leroy Zimmerman.

She gained points during the campaign by attacking the sitting governor, her predecessor, Tom Corbett, and his handling of the Jerry Sandusky child molestation investigation.  Kane suggested that Corbett slow-walked the investigation so the matter would not come up during his campaign for governor.

She vowed to investigate the investigation.

The investigation of the Sandusky investigation led to nothing. But the special investigator hired by Kane to look into the matter, uncovered the pervasive distribution of pornographic emails within the AG’s office and among other state officials.

In the process, a feud began with the chief prosecutor of the Sandusky investigation, Frank Fina.  Fina left the AG’s office when Kane was sworn in and took a job in the Philadelphia District Attorney’s office.

All fingers pointed to Fina when a story broke that Kane discontinued a Philadelphia political corruption prosecution. In fact, Fina’s new boss, Philadelphia DA Seth Williams, agreed to take over the prosecution.  Kane was incensed and said that Fina’s alleged  action in leaking the story meant “war.”

She retaliated by leaking grand jury documents to the Philadelphia Daily Newsrelating to a 2009 case involving J. Whyatt Mondesire which Fina declined to prosecute. Then Kane lied to a grand jury about ordering the leak.

Kane’s tenure has been tumultuous to say the least.  Her law license has been suspended, and she  survivied an targent  impeachment attempt by the state house.

Kane arrived in office in January 2013 with little or no political experience. A former assistant district attorney for Lackawanna County, her period in office was filled with odd and frankly unbelievable conduct, followed by bluster about being the victim of the “old boys club.”  In the process, she released a series of crude and pornographic emails that cost the jobs of two Supreme Court justices, a member of the former governor’s cabinet and a member of the state board of probation and parole.

At a time when law enforcement, prosecutors and the justice system are being challenged, Kane’s “public service” debacle has done nothing to help. Kane was preoccupied with her own political survival.  She lacked credibility to be a force in law enforcement reform, rooting out corruption or building stronger ties to the community for prosecutors and the court system.

That was a cautionary lesson in itself, but to underline the poiny, Kane’s first deputy (and her appointed replacement) Bruce L. Castor Jr., said at a press conference that some of the mess Kane left behind won't be so easily wiped away. He said his first objective as attorney general will be regaining the trust of the public, which he acknowledged was ­damaged by Kane's tumultuous tenure.

Kane leaves office with a whimper. Although her lawyer suggests she may appeal, her resignation is the beginning of the end of an ugly period in Pennsylvania politics.

We would do well to keep that ugly chapter in mind when we think about our national leadership in the months ahead.

Matthew T. Mangino,  the former district attorney of Lawrence County, Pennsylvania  is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him on Twitter @MatthewTMangino). Readers’ comments are welcome.

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Mangino talks Kane conviction and resignation on WKBN-TV

Watch my interview on WKBN-TV regarding the conviction and resignation of Pennsylvania Attorney General Kathleen Kane. 

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Former DA Bruce Castor takes over Pennsylvania attorney general's office

Pennsylvania Attorney General Kathleen Kane will leave office at the end of business today. Her successor, Bruce L. Castor Jr., said at a press conference, some of the mess Kane left behind won't be so easily wiped away, reported The Legal Intelligencer.

Castor said his first objective as attorney general will be regaining the trust of the public, which he acknowledged was ­damaged by Kane's tumultuous tenure. He said he's the right person for the job, which he'll turn over in January when the newly elected attorney general is sworn in.

Castor is the former district attorney and former county commissioner from Montgomery County, Pennsylvania.

Pennsylvania Attorney General Kane Resigns

Embattled and now convicted Pennsylvania Attorney General Kathleen Kane will resign from office effective tomorrow, August 17, 2016.  Kane the first woman and first Democrat elected attorney general in Pennsylvania was convicted on nine criminal counts yesterday in Montgomery County by leaking grand jury material to embarrass a rival..

First Deputy Attorney General Bruce L. Castor Jr. will hold a news conference today to discuss the operation of the attorney general's office in the wake of Kane's conviction on perjury and other charges.

Her conviction includes perjury charges that carry a combined maximum sentence of 14 years in prison. Under state law, Kane doesn't have to resign until she is sentenced. She has vowed to appeal the conviction.

PA Attorney General Kathleen Kane guilty on all counts

.The jury of six men and six women only took a four and a half hours to deliberate before reaching a verdict, according to Politicspa.com.

The Attorney General Kane was found guilty on all nine counts, two counts of perjury as well as seven misdemeanors.

Her trial began last week and was highlighted by testimony from ex-First Deputy AG Bruce Beemer,former aide Adrian King and political consultant Josh Morrow.

The prosecution and defense both rested their cases on Friday. Closing arguments were made this morning.

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Porngate claims another victim, Justice Eakin resigns

Suspended Pennsylvania Supreme Court Justice J. Michael Eakin tendered his resignation from the state's high court, ending a six-month fight for survival in an angry court of public opinion.

Eakin's resignation was announced by his attorney, William Costopoulos, minutes after it was delivered to court offices in Harrisburg, reported the Harrisburg Patriot News.

The resignation will leave the court functioning with six justices until a successor is appointed by Gov. Tom Wolf and confirned by the Pennsylvania state Senate.

It also brings to a sudden and quiet end Eakin's public argument that a man whoprivately laughs at racial, ethnic and sexual humor can fairly judge essential legal issues pertaining to civil rights and fairness in the criminal justice system.

In a series of rulings this winter, that argument appeared to be running headlong into a statewide judicial ethics court that appears newly-sensitized to fixing even the appearance of a slanted criminal justice system.

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AG Kane survives removal attempt, faces impeachment and criminal trial...oh, and decides not to seek reelection

Pennsylvania Attorney General Kathleen Kane has survived a removal attempt by the state Senate, but the House has opened an investigation that could lead to her impeachment, reported Newsworks.org.. Kane is also awaiting trial in August for perjury and other counts for allegedly leaking confidential investigative information and lying about it under oath and, surprise, she has decided not to seek reelection. 

House members voted overwhelmingly to begin the probe, tasking a subcommittee to determine whether Kane could be impeached based on any "misbehavior in office."

House Democratic Minority Leader Frank Dermody led the 1993 probe into the late Supreme Court justice Rolf Larsen, the last Pennsylvania official to be impeached.

"The impeachment process, you know, it doesn't have to be a crime," said Dermody. "The constitutional standard is misbehavior in office. And it's up to the legislature to determine what that is, what that means. It's a political trial."

Some lawmakers openly speculated that the Senate vote on Kane's removal might have tainted any impeachment proceeding against her. An impeachment vote in the House would result in a trial before the Senate.

"They are potential jurors," said Dermody. But he doubts that the removal effort leaves any whiff of bias on senators because their inquiry was so narrow.

"It might not have poisoned the whole well," said Dermody. "The reason they were going to consider removal was because of her law license."

The Senate's removal effort was focused on whether Kane could fulfill her duties with a suspended law license. The state Supreme Court ordered the suspension in October and upheld the ruling last week.

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Kane's failed bid to reinstate law license opens the door to removal

The Pennsylvania Supreme Court has denied state Attorney General Kathleen Kane's petition for ­reinstatement of her law license, reported The Legal Intelligencer.

The Supreme Court's order allows the Pennsylvania Senate to move forward with a vote on Kane's removal from office pursuant to Article VI, Section 7 of the state constitution. A special Senate committee on Jan. 27 concluded its investigation of Kane by recommending to the full Senate that it wait to vote until the high court ruled on her petition. The committee was reviewing whether Kane can fulfill her job duties with a suspended license.

Sen. Joseph B. Scarnati III, R-Jefferson, said in a statement Feb. 5 that the process can now move forward and he will begin meeting with the majority and minority leaders of the Senate to determine a date for the vote. A two-thirds vote in favor of removal would send the matter to Gov. Tom Wolf, who has called for Kane to step down but has not said whether he would approve her removal.

In a separate proceeding, the state House of Representatives is expected to vote as soon as Monday on a resolution that would authorize a committee to investigate Kane's ­conduct in office and determine if articles of impeachment are appropriate.

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Impeachment process begins against AG Kathleen Kane

The Pennsylvania House of Representatives has begun to move toward impeachment proceedings against Attorney General Kathleen Kane. The House Judiciary Committee unanimously passed a resolution that would authorize the committee to investigate Kane's ­conduct in office, reported The Legal Intelligencer.

The House joins the state Senate in pursuing the possibility of Kane's removal. A special Senate committee is expected to issue a report Wednesday on its investigation into whether Kane can carry out the duties of her office with a suspended law license. Kane is also facing perjury and other criminal charges, as well as five civil suits alleging defamation, retaliation and other counts.

In a statement, Kane criticized Republican efforts to remove her from office, saying the legislators should instead focus on the network of government officials who have exchanged offensive emails that she has appointed a special prosecutor to review.

"Why isn't the Judiciary Committee looking into a judicial system that is clearly broken?" Kane said. "I would hope that political fury does not trump a fair and impartial justice system for the people of [Pennsylvania]."

State Rep. Ron Marsico, R-Dauphin, chair of the committee, said he is confident that HR 659, which would begin an investigation "to determine whether Kathleen Kane is liable to impeachment for misbehavior in office," will pass a vote before the full House. He said he expects that vote to take place sometime during the week of Feb. 8.

The resolution would appoint the subcommittee on courts to take testimony, review documents and interview witnesses in order to present to the Judiciary Committee its findings. The six-member subcommittee, which Marsico said is composed of four Republicans and two Democrats, all of whom are attorneys, would have subpoena power. He said he hopes to present a report on potential impeachment to the full House by June, he said.

The impeachment process is lengthy, and "it can get political very fast," said G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College. Impeachment is rare, but not nearly as rare as the Senate address procedure currently being pursued, which hasn't been employed since 1891, he said.

But while Kane has questioned the ­constitutionality of the Senate's efforts, ­impeachment "covers a lot more ground and is more definitive," diminishing the potential of legal challenges, Madonna said. The impact the House's move will have on the Senate's efforts at removal is unclear, he said, though it could allow the Senate an opportunity to postpone a vote if some of the Democrats in that chamber would prefer to pause the process.

While the Senate committee is strictly limited in its focus to the question of whether Kane can fulfill her job duties, "the impeachment process being proposed would not be subject to any such limitation on areas to be investigated," Marsico said in a statement. He said the timing of the resolution is coincidental, and discussions on the subject have been ongoing for four to six months.

"I was hoping it wouldn't have to come to this," Marsico said. "We were thinking maybe that the attorney general would perhaps resign so we wouldn't have to go through this process."

After criminal charges were filed against Kane in August, the Pennsylvania Supreme Court on Sept. 21 temporarily suspended her license.

The Senate committee held three hearings in November, at which it heard from district attorneys, law professors and Kane's four executive deputy attorneys general. In a 5-2 vote, the committee decided Nov. 25 to move forward with removal proceedings, allowing Kane the opportunity to testify. She elected to have her chief of staff, Jonathan Duecker, and former Gov. Ed Rendell testify on her behalf.

The committee's final report, due Wednesday, could lead to a vote by the full Senate. A two-thirds majority in favor of removal would send the matter to Gov. Tom Wolf for a final decision.

Kane is also awaiting a ruling from the Supreme Court on her King's Bench petition for reinstatement of her law license, which she filed Jan. 12. In her petition, Kane argued that suspended Justice J. Michael Eakin should not have participated in the court's order suspending her license because she uncovered and publicized the offensive emails that have since contributed to his suspension.

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PLW: More to Cosby Prosecution Than Meets the Eye

Matthew T. Mangino

Pennsylvania Law Weekly

January 12, 2016

Getting elected is the easy part; governing is the real challenge. Ask Kathleen Kane. She campaigned for attorney general on an issue that resonated with Pennsylvania voters—did the Attorney General's Office drag its feet during the Penn State-Jerry Sandusky investigation to shield former Attorney General Tom Corbett during his campaign for governor.

Kane's investigation of the investigation revealed no wrongdoing, but you can trace the unraveling of her career and the crisis in statewide politics to that campaign-driven decision about the Sandusky investigation.

As Kevin R. Steele takes over as district attorney of Montgomery County, he needs to be cautious that his first act as district attorney-elect—filing sexual assault charges against Bill Cosby—doesn't put him on a similar track to self-destruction.

There have been as many as 50 women who have made allegations against Cosby. If even a fraction of those allegations are true, Cosby is a sexual predator and a threat to all women. At stake in this case is more than a criminal prosecution—the perception and legitimacy of prosecutorial discretion may be at issue as well.

The Cosby case has a lot of the same characteristics as Kane's ongoing scandal. Cosby became an issue in the Montgomery County race, just as Sandusky was an issue in Kane's campaign for attorney general. Bruce L. Castor Jr., a Republican, was running again for district attorney after a stint as a Montgomery County commissioner. His opponent was Steele, a Democrat, who was Montgomery County's first assistant district attorney.

During the campaign, Steele produced a commercial that challenged Castor for not filing charges against Cosby when Castor was district attorney in 2005. Castor responded, suggesting that Steele had 10 years as an assistant district attorney to file charges against Cosby.

Castor declined to prosecute Cosby for the sexual assault of Andrea Constand in 2005. A press release from Castor at the time set forth this reasoning: "The district attorney finds insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt. In making this finding, the district attorney has analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby possessed the requisite criminal intent."

Castor also cast a shadow over Constand, adding, "Much exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light."

On Dec. 30, Steele announced charges against Cosby. He explained that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again.

The indictment came just days before the statute of limitations would have expired, preventing Constand from seeking criminal charges against Cosby—a fate similar to every other woman who had publicly accused Cosby.

In 2002, the statute of limitations for sexual crimes was extended to 12 years.

The new law applied to any case in which the statute of limitations had not yet expired before the law took effect. Pursuant to Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super. 1988), the time for prosecution may be extended by a legislative change if the prior period has not yet expired. Without the change in the law, the statute of limitations would have expired in 2009.

Similar to Kane's scandal, there is contentious litigation surrounding the Cosby prosecution.

In November 2006, Cosby settled with Constand for an undisclosed amount. The settlement came with a confidentiality agreement, preventing either party from disclosing the terms.

Last summer, Constand and her attorneys asked the judge in the civil case to void the confidentiality agreement. Constand's attorneys argued that allegations by other women constituted a violation of the agreement and had rendered it void. In turn, Cosby demanded his settlement money returned.

Last year, Constand also filed a defamation lawsuit against Castor, who'd given an interview in which he said Constand's police report did not contain all the information that was later included in her civil lawsuit.

In fact, Constand became so entrenched in Steele's campaign against Castor that her lawyer, Dolores Troiani, told the Philadelphia Inquirer that if Castor would have won, Constand would have likely backed out of the case.

After Castor lost the election, Constand's attorney said she was looking forward to deposing Castor. Unfortunately for Steele, the new district attorney, he may not escape the reach of a discovery deposition.

Sexual assault allegations are often difficult to prove. Absent physical evidence, most sexual assault cases come down to the victim alleging assault and the accused claiming consent—not unlike the Cosby case. Prosecutors are suggesting that new evidence has been discovered,

What's new in this case?

In a deposition connected to the civil suit filed by Constand, Cosby admitted he obtained prescriptions for quaaludes in the 1970s for purposes of having sexual relations. Methaqualone was a popular drug in the 1970s and legally available.

Benjamin Brafman, a prominent New York criminal defense attorney, told Time, "Quaalude was the love drug of choice in those years. Doctors were lawfully prescribing it in those years."

Steele claims this information was an important factor in his decision to file charges, but Cosby's deposition testimony about quaaludes is not a central component of his case against Cosby.

What the charges reveal is that prosecutors had sufficient information to charge Cosby for more than a decade. According to Think Progress, the biggest thing that's changed since 2005 is not the information that was available to prosecutors but the media environment and the public perception of Cosby.

The fact that other women have come forward would probably be inadmissible in a criminal trial, unless the prosecution intends to show a course of conduct or modus operandi, both of which may still be a stretch. However, according to the affidavit of probable cause filed with the criminal complaint against Cosby, he also made incriminating statements to the victim's mother.

The basic facts of the case are straightforward and undisputed. Cosby met and befriended Constand through their respective connections with Temple University. In January 2004, Cosby called Constand and invited her to his home to discuss her career. He then gave her pills and alcohol. Soon after, Cosby began to fondle Constand, including penetrating her vagina with his fingers.

The question for prosecutors has always been whether the contact between Cosby and Constand was consensual.

Why a 10-year delay in filing charges? Politics.

When politics seeps into governance, the results are rarely good. This is not to say that Constand is not entitled to justice, or the other alleged victims for that matter, but why is being allegedly drugged and sexually assaulted now somehow more egregious than it was in 2005 or every year since then?

There is a lot more at stake than a single case of sexual assault. The factors that influence prosecutions—whether to deny a prosecution or reopen an investigation and file charges—are wrapped up in this single case. Confidence in the criminal justice system is riding on the outcome of this case and a verdict may not answer all the questions. 

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Guest Opinion: 'Porngate' is one hot mess

Matthew T. Mangino

Guest Opinion, Delaware County Daily Times

January 3, 2016

           Not long ago, I called an assistant prosecutor in a small, rural county in Missouri about an old warrant issued for one of my clients. Before I could get my question out he wanted to talk about ‘Porngate.’  He told me every morning he gets on the Internet to read the latest twists and turns in the Kathleen Kane saga.  He has had a lot to read about since our conversation.

            Pennsylvania is a mess and things are not getting better.  Another Supreme Court justice has been swept into the fray.  Justice Michael Eakin was suspended by the Judicial Conduct Board for his exchange of pornographic and insensitive emails.

            That is the same board that had its chief counsel recuse himself from the Eakin case because he failed to reveal that he was chums with the justice; and the same board the Supreme Court blunderingly tried to pack with an ally of Eakin prior to the suspension hearing.

            However, that is a side show to the main event.  Attorney General Kathleen Kane is under two sets of indictment.  Her law license has been suspended and her release of pornographic emails exchanged among government officials has resulted in the resignation of one Supreme Court justice, the suspension of another, the resignation of the Secretary of Environmental Resources and a member the Board of Probation and Parole.

            Kane, without a license to practice law, appointed the former attorney general of Maryland Doug Gansler as a special prosecutor to weed out pornography in all state government offices.  Her authority to do so--even with a law license--is in question and Gansler’s firm charging about $880 an hour has made even the few Kane supporters out there a little queasy.

            Then it’s revealed that Kane’s twin sister--who works in the AG’s office--has sent and received inappropriate emails.  There will be no disciple for Kane’s sister.  Although other members of the AG’s staff were disciplined for similar conduct--you can’t make this stuff up.

            This whole thing started when Kathleen Kane campaigned on an issue that resonated with Pennsylvania voters--did the AG’s office drag its feet on the Penn State/Jerry Sandusky investigation to shield the former AG--Tom Corbett--during his campaign for governor.       Kane’s investigation of the investigation revealed no wrong doing, but it sure did make some people mad.

            The man who headed up the Sandusky investigation, Frank Fina, quietly went about trying to discredit Kane.  He found a willing partner, his new boss the district attorney of Philadelphia Seth Williams.  Fina and Williams publicly challenged Kane’s decision to drop a corruption prosecution.  The Philly DA refiled the charges.

            Then there was the knife wielding senior judge Barry Feudale who presided over the statewide grand jury that investigated Sandusky. His impartiality was challenged by Kane.  Feudale went to media and he included none other than Mr. Fina on his emails.  The chief justice revoked Feudale’s senior status.

            Amid growing public concern over Fina’s involvement in Porngate, Williams transferred Fina from criminal trials to civil a much less glamorous position.  The calls for Fina’s termination continue.

            Amid all this, the Pennsylvania legislature is pursuing Kane’s removal. This is a body that has had at least 20 members convicted of crimes in the last 15 years.  A hearing in the Senate has been scheduled for January 12, 2016.

            Oh, and don’t forget that the Governor and legislature have not agreed on a budget for going on six-months. As the GOP members of the House grumble about unseating the speaker of the house, school districts across the state need to borrow money to keep our children in class.     Instead of addressing the growing financial crisis in this state, the legislature will seek to unseat the lamest of lame-duck officials in Pennsylvania history.

            House Minority Leader Frank Dermody (D-Allegheny) was one of the prosecutors in the impeachment of Justice Rolf Larsen, the last impeachment in Pennsylvania.  “People thought it was very serious business,” he said. Kane is not subject to impeachment, but rather an obscure constitutional provision known as direct removal.

             According to The PLS Reporter, Dermody reflected on his impeachment work, “it is important to ensure that the process does not come down to political bickering and that, due to the nature of impeachment as a political trial, it is a process used only when absolutely necessary.”

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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Philadelphia DA feeling 'Porngate' pressure

With the focus of the racist and pornographic email scandal moving from Harrisburg to Philadelphia, pressure is mounting on Philadelphia District Attorney R. Seth Williams, reported The Legal Intelligencer.

Over the past few weeks, state and local politicos have been calling on Williams to fire three prosecutors in his office involved in the 'Porngate' scandal that has been unfolding over the past year. Although Williams decided to transfer the three prosecutors out of the special investigations unit, attorneys have said the scandal is likely to continue and could affect some prosecutions being brought by Williams' office.

Media outlets have reported that Frank Fina will be transferred to the civil litigation unit, E. Marc Costanzo will be transferred to the appeals unit and Patrick Blessington will be transferred to the Post-Conviction Relief Act unit.

Fina, Costanzo and Blessington have been at the heart of the scandal that has ensnared numerous prosecutors and judicial officials, including state Supreme Court Justice J. Michael Eakin and former Justice Seamus P. McCaffery, who were both found to have sent or received numerous emails that were pornographic and offensive in nature.

Criminal defense attorney Jeff Lindy said the email scandal will likely continue.

"I don't think that the constituent groups who are upset about Seth Williams having these three on staff are going to get any less upset because he's reassigned them," Lindy said. "Does that mean that he should fire them? That's got to be a political decision that he makes. Make no mistake about it, this is all about politics."

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Suspended Pennsylvania AG seeks wider 'Porngate' investigation

Pennsylvania Attorney General Kathleen Kane plans to announce a team of special prosecutors to further review any pornographic and offensive emails sent or received on government servers, raising questions among criminal and ethics attorneys about the scope of such an investigation and her ability to direct it with a suspended law license, reported The Legal Intelligencer.
Kane said last week, in a response to a Pennsylvania Senate committee report recommending a full hearing on her removal from office, that she is hiring the prosecutors to "go through every public email account trafficking this filth and track down every public server over which it was circulated."
But without evidence that the investigation might uncover criminal violations, attorneys said, it would appear to be a "fishing expedition." And, they said, it could pose problems for Kane as she attempts to run the Office of Attorney General without violating ethics rules against the unauthorized practice of law.
"You could scour your own server for every exchange within your own office, but the question is to go beyond your office," said Matthew Mangino, a former Lawrence County district attorney. "Who's going to give you the authority to do that?"
Kane said she will outline the powers the prosecutors have "to identify any violations of the criminal, civil and ethics laws of the commonwealth." She also said she will call on the Department of Justice to investigate emails involving U.S. attorneys.
Obtaining warrants to review email traffic from government servers outside of the OAG would be a challenge, Mangino said. Any warrant would need to show probable cause, and because no criminal activity has been implicated in any of the emails since the scandal began last fall, demonstrating a need for access would be difficult, he said.
"At some point it has to be more than a fishing expedition," Mangino said.
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