Lawyer invokes porn as Pennsylvania AG is ordered to trial

Pennsylvania's attorney general was ordered Monday to stand trial on charges she leaked secret grand jury information to embarrass a rival prosecutor after a judge rejected her lawyer's contention that she had another way of humiliating him: pornography.

Kathleen Kane, the first woman and first Democrat to be elected attorney general in the state, did not speak as she left a suburban Philadelphia courthouse flanked by bodyguards and a crush of reporters and photographers.

Defense lawyer Gerald Shargel raised Kane's knowledge of the explicit emails near the end of the evidence hearing, saying exposing former prosecutor Frank Fina's "disgraceful conduct" would have been an easier way to retaliate against him.

Judge Cathleen Kelly Rebar warned Shargel that he was "far afield" in invoking pornography — a central theme of Kane's public defense — because prosecutors had not delved into motive during the hearing.

Fina, reached by phone, declined to comment on Shargel's argument.

"I've been doing this a long time, and I've learned not to respond to the claims of criminal defendants, or their lawyers," Fina said.

Kane, 49, is also charged with lying under oath about the alleged leak, ordering aides to illegally snoop through computer files to keep tabs on the investigation into it and harming the reputation of a former civil rights leader who was named in the leaked documents.

She could face up to seven years in prison if convicted of the most serious charge, perjury.

Kane remains free pending an Oct. 14 court appearance. No trial date has been scheduled.

The first-term Democrat has rejected calls from party leaders, including Gov. Tom Wolf, to resign. A citizen activist has asked a state disciplinary board to remove her from office.

Kane sat quietly at the defense table as a prosecutor outlined how she allegedly passed a transcript and memorandum related to a 2009 grand jury investigation to Philadelphia Daily News reporter Chris Brennan through Josh Morrow, a political consultant who had helped elect her three years ago.

A top aide to Kane left a package containing the material between his front and screen doors for Morrow to pick up, prosecutor Kevin Steele said.

Prosecutors called two witnesses during the hearing — a top Kane aide and the lead investigator in the case against her — whose testimony paralleled a 42-page probable cause affidavit filed against her earlier this month.

Focusing on the perjury charge, prosecutors contrasted remarks Kane made about the sanctity of grand jury proceedings as a county prosecutor in 1999 with her testimony to the leak grand jury last November.

In the earlier testimony, Kane said she would feign ignorance to preserve the confidentiality of grand jury proceedings.

"It is a secret process, and for me to give out any information to somebody who is not going into the grand jury is actually a criminal offense," Kane said in 1999, according to transcripts read in court.

Kane testified last November that she wasn't subject to secrecy rules surrounding a 2009 grand jury investigation because she was never sworn in to that particular grand jury.

"I was home with my kids," Kane said, according to a transcript read in court.

Shargel argued that the perjury count did not meet the legal definition and that prosecutors did not outline other allegations with enough specificity.

Challenging a conspiracy charge, he said there was "no suggestion that two people of a like criminal mind joined forces, joined ranks and entered into an agreement."

Shargel argued accusations Kane used her position to smear Philadelphia NAACP head J. Whyatt Mondesire's reputation were moot because the man had already been the subject of negative newspaper articles.

Shargel tangled with the judge as he attempted to use his cross-examination of a top Kane aide as a platform to argue against the oppression charges.

"I'm not here as a potted plant. I'm here to represent my client," Shargel said.

Shargel, who once represented New York City mobsters, contended that Mondesire already lost his reputation when articles dating to 2010 alleged issues with his finances. Shargel said Mondesire couldn't lose his reputation a second time.

Mondesire wasn't charged with a crime.

Detective Paul Bradbury, who investigated Kane, said the leak caused Mondesire "great personal distress and distress to his family" and forced him to close his charity when donations dried up after the newspaper story appeared.

Kane has said that releasing the pornographic emails exchanged by office employees is crucial to her defense strategy, but her office said last week it has concerns that disclosing them could be perceived as retaliating against witnesses in the criminal case against her.

At an Aug. 12 press conference, Kane said the leak investigation and criminal charges were a "stealth political weapon" to oust her from office and that a campaign to discredit her began after her office found pornographic and explicit video images and jokes in hundreds of emails while reviewing a predecessor's handling of the child sex abuse case against former Penn State assistant football coach Jerry Sandusky.

The email scandal, which surfaced last summer, resulted in six firings, 23 reprimands and two high-profile resignations, including a state Supreme Court judge. Some involved, Kane said, "have tried desperately to ensure that these emails, and more importantly their attachment to it, never see the light of day."