Commonwealth v. Kane
188 A.3d 1217
Pa. Super. Ct.2018Background
- Kathleen Kane, former Pennsylvania Attorney General, was prosecuted after allegedly arranging the leak of a discontinued grand-jury investigation (Mondesire) to the press and then testifying falsely before the Thirty-Fifth Statewide Investigating Grand Jury.
- Documents (Davis memo, emails, agent Miletto transcript) were delivered to a political consultant (Joshua Morrow) who provided redacted materials to the press; the Daily News published a piece naming DAG Frank Fina.
- Judge Carpenter appointed Special Prosecutor Thomas Carluccio to investigate alleged grand-jury leaks; the grand jury issued a presentment recommending criminal charges against Kane.
- Kane filed quo warranto and other pretrial motions challenging the special prosecutor/grand-jury authority, sought recusal of Montgomery County judges, moved to suppress/quash based on alleged unlawful grand-jury procedure and separation-of-powers claims, and attempted to introduce evidence (pornographic emails, Sandusky-related material) as impeachment/defense.
- Jury convicted Kane of perjury, false swearing, obstruction, official oppression, and conspiracy; she appealed raising recusal, suppression/quash, evidentiary rulings, selective/vindictive prosecution, and jury-instruction claims.
- The Superior Court affirmed in part, adopting the trial court’s reasoned opinion: it rejected recusal of the entire bench, denied suppression/quash based on In re Thirty-Fifth (Supreme Court disposition), upheld evidentiary exclusions and denial of selective/vindictive-prosecution claims, and found no error in jury instructions.
Issues
| Issue | Plaintiff's Argument (Kane) | Defendant's Argument (Commonwealth / Trial Court) | Held |
|---|---|---|---|
| Recusal of entire Montgomery bench | Judges with connections to the grand-jury matter were biased and that bias should be imputed to the whole court | No authority to impute individual judges’ involvement to entire bench; presumption judges can be impartial; no factual showing of widespread conflict | Denied — no abuse of discretion; mere familiarity isn’t a basis to recuse whole bench |
| Suppress grand-jury evidence / quash charges (separation of powers / unauthorized special prosecutor) | Special Prosecutor Carluccio’s use of the statewide grand jury was unauthorized and violated separation of powers; evidence/presentment tainted | In re Thirty-Fifth Statewide Investigating Grand Jury controls; majority of Supreme Court accepted authority or deemed any defect harmless; grand-jury presentment adequate | Denied — In re Thirty-Fifth is law of the case; no relief warranted |
| Evidentiary exclusions (pornographic emails; Sandusky investigation) | Evidence would impeach Fina’s credibility / show motive for Kane’s review and support defense | Evidence was speculative/irrelevant or unfairly prejudicial; trial court can limit opening and exclude irrelevant or confusing matters under Rules 401–403 | Denied — exclusion and limitation proper; probative value outweighed by danger of unfair prejudice/confusion |
| Selective / vindictive prosecution | Prosecution was vindictive or selectively targeted Kane (retaliation for her actions) | No factual showing; charges increased only after search-warrant discovery; burden on defendant to prove selective prosecution; prosecutorial charging decisions insulated absent proof | Denied — appellant failed to plead or prove selective or vindictive prosecution |
| Jury instruction re: grand-jury secrecy | Requested instruction that grand-jury secrecy applies only to matters occurring before the grand jury (narrower secrecy rule) | Proposed instruction could imply lawful disclosure of some grand-jury information that actually is prohibited; trial court’s instruction accurately stated law on obstruction and secrecy limits | Denied — trial court’s charge was accurate and not legally incorrect |
Key Cases Cited
- In re Thirty-Fifth Statewide Investigating Grand Jury, 631 Pa. 383, 112 A.3d 624 (Pa. 2015) (Supreme Court disposition upholding judge’s appointment/authority and treating any defects as not requiring relief)
- In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (Pa. 2011) (explaining the importance of grand-jury secrecy and judicial authority to protect it)
- Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (Pa. 1998) (how to reconcile fragmented Supreme Court opinions; narrowest-ground rule)
- In re Lokuta, 608 Pa. 223, 11 A.3d 427 (Pa. 2011) (presumption of judges’ honesty and impartiality; standards for recusal)
- Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (Pa. 2013) (authority on binding effect of majority opinions from the Supreme Court)