Kane investigation keeps mystifying state's legal community

HARRISBURG, Pa. (AP) - The unusual, court-ordered probe into whether the state attorney general's office illegally shared secret investigative material with a newspaper keeps mystifying Pennsylvania's legal community.

Now there are questions about the intentions of a state Supreme Court order this week telling Montgomery County's district attorney to halt - at least temporarily - any prosecution "stemming from" a grand jury presentment that recommended criminal charges be filed against Attorney General Kathleen Kane.

Is that legal? Can Montgomery County District Attorney Risa Ferman still conduct her own investigation? And could Ferman file charges if she decides her own investigation warrants them?

The order was unsealed Thursday, a day after the state Supreme Court said it would review the legality of a Montgomery County judge's secret appointment of a hand-picked lawyer to act as a special prosecutor and investigate Kane's office. If the justices decide that the appointment was illegal, as Kane argues it was, it could poison the presentment that presumably lays out the grand jury's basis to recommend the charges against Kane.

Bruce L. Castor Jr., a former Montgomery County district attorney, said it would violate the separate of powers doctrine if the court were trying to stop Ferman from conducting her own independent, but parallel, investigation. But he does not think the court's order extended that far.

"They could have said, 'any prosecution, period,' but they didn't," said Castor, who was Ferman's boss before she became district attorney in 2008.

Still, L. George Parry, a Philadelphia lawyer and former federal and city prosecutor who also ran state grand jury investigations, said courts routinely tell prosecutors - not to mention, the other two branches of government - what to do. Testing the extent of its order might be unwise, he said.

"If she launched her own investigation, could she really say her own investigation was unrelated in any way, shape or form to the grand jury presentment?" Parry said. "I think not and I think she would be courting trouble. If I was her, I would hold my fire until this stuff gets sorted out."

Supreme Court officials did not respond to questions about the order. Ferman has declined comment on the matter.

The courts publicly acknowledged the existence of the investigation on Wednesday, when the high court released 80 pages of records showing that a grand jury last month had recommended that Kane be charged with perjury, false swearing, official oppression and obstruction. The grand jury's evidence for its recommendation remains a secret.

Kane, a Democrat and former Lackawanna County prosecutor who took office in 2013, has not been charged.

She has said that she did nothing wrong, although she also has acknowledged that her office provided records about a 2009 investigation by Kane's Republican predecessors of the then-president of the Philadelphia NAACP to the Philadelphia Daily News.

Montgomery County Judge William Carpenter, who runs a statewide grand jury for the attorney general's office, ordered the investigation after he began to suspect the attorney general's office had provided those records to the newspaper. On May 29, he appointed a lawyer he knew, Thomas Carluccio, as the special prosecutor, even though Carluccio is not a sworn law enforcement officer.

Last month, Carpenter sent Ferman the evidence produced by the grand jury run by Carluccio.

Regardless of whether Ferman decides to investigate, the grand jury's work is problematic, prosecutors say. For one thing, a Supreme Court decision that Carluccio's appointment was illegal could render the grand jury's evidence useless in court. Beyond that, some prosecutors would be unwilling to file charges based on evidence produced by investigators not under their control.

"I can't conceive of calling a witness to trial who I've not examined," said Bucks County's district attorney, David Heckler.

The legal community's collective head-scratching is crying out for the Legislature or Supreme Court to settle the matter, some prosecutors say.

"The issue is process," Northampton County District Attorney John Morganelli said. "All of us prosecutors need to be concerned that if judges are given the power to start their own investigations and bestow upon a lawyer all the powers of a prosecutor, then we're looking at the blurring of the separation of powers."