By Count Friedrich von Olsen
Talk about hoist with her own petard…
I would like to focus my readers’ attention well across the country to the state – or is it the commonwealth – of Pennsylvania. Playing out there is a perfect illustration of the issue of prosecutorial secrecy that my readers know has so animated me in the past…
Kathleen Kane, the first woman and the first Democrat to be elected Pennsylvania attorney general since that position became an elective office in 1980, has, like her predecessors and prosecutors throughout the United States, made use of the grand jury process to achieve indictments. She has lived by indictments, and now, it seems, she is about to die by the indictment process…
My problem with the use of a grand jury is that it seems to me a particularly unfair, unjust, unwise, dishonest and un-American way of operating. In Europe, secret indictments and trials are referred to as star chamber proceedings. Outside the scrutiny of the public, someone – it could be anyone, rich or poor, good or evil, Catholic or Protestant, Jew or Gentile, Moslem or Hindu, believer or agnostic, tall or short, handsome or ugly, guilty or innocent – is taken behind locked doors, charged with a crime and given a hearing at which judgment is pronounced. There is no open examination of evidence, showing of guilt or opportunity to present testimony with regard to innocence or mitigating factors. The prosecutor has absolute authority and power. Those on the outside have no choice but to accept that authority and trust that nothing venal, or crooked, or corrupt or evil is ongoing inside the chamber…
Grand juries are America’s version of star chambers. They are conducted in secrecy. The jury is impaneled and charged with reviewing a case presented to its members behind closed doors. In many or even most cases, the person accused does not even know of the charges being made against him, let alone have the chance to utter even a word in his own defense. Based upon this one-sided presentation of unverified and untested information, the grand jury almost always returns an indictment…
Kathleen Kane, after giving countless numbers of Pennsylvanians the star chamber treatment, was recently given the star chamber treatment herself…
A number of Pennsylvania officials, some Democrats, some Republicans, grew displeased with the way she was running her office. They believe she was using the power of investigation the attorney general’s office possesses to accumulate damning or embarrassing information about Pennsylvania politicians and public figures and was using that information as a form of crude blackmail or character assassination. They put together a case in which they alleged she had obtained secret information that was presented to a grand jury in 2009 and then leaked it to the Philadelphia Daily News and perhaps some other newspapers to embarrass a political rival, Frank Fina, who happened to be one of the lead prosecutors working for former Pennsylvania Attorney General Tom Corbett…
Kane, who is now 49 and in my book terribly physically attractive despite being a Democrat, is charged with lying under oath about the leak, ordering her 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 named in the leaked documents. She could face up to seven years in prison if convicted of the most serious charge, perjury.
There has been some information that has made its way out to the public: the man in charge of special investigations for Kane’s office, David Peifer, testified he provided Kane with a copy of a transcript of grand jury testimony referenced in a Daily News article months before it was published. Peifer also testified he had a copy of a memo related to a confidential case emailed to Kane last summer. Kane told a grand jury last November she had never seen the memo, according to the prosecution…
A top aide to Kane left a package containing the material between his front and screen doors, according to special state prosecutor Kevin Steele, and a political consultant who helped Kane get elected three years ago picked up the package and delivered it to a reporter for the Daily News…
Steele has gone to great lengths to show that in years past Kane professed the belief that grand jury proceedings are sacrosanct, such as in 1999 when she was a county prosecutor. She claimed that to protect the confidentiality of grand jury proceedings, she would feign ignorance or even lie. Last November, however, she testified that she was not subject to secrecy rules surrounding the 2009 grand jury investigation because she was never sworn in to that grand jury…
Gentle readers, I am giving you an irony alert. Read on…
Kane is now asserting in public statements that she is being prosecuted because as Pennsylvania’s top prosecutor, she for some time has been sitting on explosive material relating to pornography and crass sexual and racist jokes being passed around by high ranking officials in the Pennsylvania state – or commonwealth – government. This pornography ring, she said, was investigated by a grand jury, which apparently has yet to hand down indictments. She has intimated that it is precisely because these officials fear the exposure of their misadventures involving this pornography and other illicit or embarrassing activity that they have moved, using the authority and machinery of government, to indict and discredit her…
The problem, Kane says she faces, is that to prove what she is saying is true, she will need to violate the confidentiality of the grand jury process. She cannot do that because to do so would be to break the law…
Everyone who knows me knows my Republican leanings. Sight unseen, I distrust Kathleen Kane based on her Democratic Party affiliation. I am three-quarters or even seven-eighths ready to convict her right now. But if I set aside my partisan prejudices, I must admit to myself that there just might be something to what she is saying. Just maybe, in the clubby male-dominated world of Pennsylvania politics, boys have been boys and these very powerful people did go over the line and they were trafficking in smut. And maybe, just maybe, this lady prosecutor stumbled on it and instead of ignoring it or maybe even indulging in a little prurient gander of her own, decided to forthrightly investigate it, get to the bottom of it and prosecute anyone who had acted illegally. And maybe this so upset the apple cart that now she is being raked over the coals and persecuted for doing what is right. But at this point, there is no way for us to know, because of the confidentiality surrounding the grand jury process…
My point is that secrecy when we are dealing with official actions and inquests and investigations into inherently public actions and public issues is a blatant absurdity and a blot upon the law…