Perjury Conviction Against Ex-Pennsylvania AG Upheld

Pennsylvania Attorney General Kathleen Kane leaves the Montgomery County courthouse in August 2016 after closing arguments in her perjury trial. (Pool photo via Jessica Griffin with the Philadelphia Inquirer.)

HARRISBURG, Pa. (CN) — The Pennsylvania Superior Court upheld the conviction Friday of former Attorney General Kathleen Kane, a Democrat who lied to a grand jury that was investigating her leak of information meant to embarrass a political rival.

Daily News reporter Chris Brennan broke the article that had relied on secret grand jury information in June 2014, about three months after the Philadelphia Inquirer published an article that tarnished Kane’s reputation.

As former aides of Kane’s testified at trial, the attorney general believed that the Inquirer’s article relied on information leaked to it by Frank Fina, a former deputy attorney general from the last administration.

Just two years earlier on the campaign trail, Fina had been a frequent target of Kane’s as she focused on the state’s delay prosecuting the decades of child sex abuse committed by Jerry Sandusky, the former Penn State assistant football coach.

In Kane’s narrative, Fina was part of a “good old boy” network that simply wanted the charges against Sandusky to disappear. Brennan’s article put forward a similar image of Fina, suggesting that the state could have prosecuted Philadelphia civil rights leader J. Whyatt Mondesire for corruption but that Fina killed the investigation improperly.

At Kane’s trial, multiple former aides for the attorney general testified against her in exchange for immunity. Prosecutors also allowed the jury to hear an audio recording of an April 2014 phone call between two of Kane’s political consultants, Josh Morrow and John Lisko, which had secretly been recorded by the FBI.

“Kathleen called me and has information she wants me to leak out,” Morrow said in the call, adding, “She’s unhinged.”

On May 4, 2014, Kane also texted Morrow about the idiom that revenge is a dish “best served cold.”

The first woman and Democrat to hold the office of attorney general in Pennsylvania, 51-year-old Kane was sentenced to up to 23 months in prison after a Montgomery County jury convicted her in 2016 of perjury, conspiracy, obstruction of justice and other charges.

Judge Wendy Demchick-Alloy upheld Kane’s conviction last year, and a three-judge panel of the Superior Court likewise affirmed on Friday.

Though Kane had said that a conflict of interest required all of the judges sitting on the Montgomery Court of Common Pleas to recuse themselves ahead of her trial, Friday’s ruling calls this argument strained.

“The mere fact that some judges of a particular court may have some familiarity with a particular case has not been held to be a basis for recusal of an entire bench of judges,” Judge Anne Lazarus wrote for the panel.

Pennsylvania Attorney General Kathleen Kane enters the Montgomery County courtroom on Aug. 11, 2016, to continue her trial in Norristown.

Lazarus added that, “without some evidentiary showing of an interest, Kane’s allegations merit no relief.”

She also found no merit to Kane’s claim that the grand jury’s investigation of her was unconstitutional, and that its evidence against her should have been suppressed.

Kane brought up the Sandusky investigation on appeal as well, saying that her defense team should have been allowed to mention pornography discovered in Fina’s emails emails at the Attorney General’s Office.

“The trial court … concluded that Kane’s attempt to introduce evidence of pornographic emails sent or received from Attorney Fina’s OAG email account was primarily to obfuscate legal and evidentiary issues, mislead the jury, and suggest a ‘decision on an improper basis,’” Lazarus wrote. “We are inclined to agree.”

As for the claim that Kane’s prosecution was selective and vindictive, Lazarus said the former attorney general conflated two distinct concepts.

Lazarus emphasized that due process forbids only the enhancement of charges motivated by vindictiveness toward a defendant. Though selective prosecution is a complete defense to a charge of criminal conduct, the ruling says Kane’s claim is not supported.

“Kane has not shown that others similarly situated were not prosecuted for similar conduct, nor has she provided evidence of impermissible conduct by the Montgomery County District Attorney’s Office,” the ruling states. “Therefore, Kane’s claim that the commonwealth vindictively and/or selectively prosecuted her for the foregoing charges is meritless and no relief is due.”

Kane, who remains free on bail, can still seek relief from the state Supreme Court.

Harrisburg attorney Joshua Lock, who represented her in the appeal, did not respond to a voicemail seeking comment Tuesday.

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