Friday, November 04, 2016

Anthony Christina: "Tactics, Counseling, and Consequences--The Kathleen Kane Saga Come to an End"

My former student, Anthony Christina, now an associate attorney at Lowey Dannenberg Cohen & Hart, P.C., has been following the tragedy that is the rise and fall of the former Attorney General of the Commonwealth of Pennsylvania, Kathleen Kane.  To that end he is preparing what is shaping up to be an insightful and important article on various legal issues that were at the center of the litigation around Ms. Kane's indictment and prosecution.
Once a rising star in law and politics, her rapid rise was matched by an equally rapid and spectacular fall. As it was recently reported:
The brief, unlikely political career of Kathleen G. Kane, Pennsylvania’s brightest rising star when she was elected attorney general less than four years ago, came to a humiliating close on Monday when a judge sentenced her to 10 to 23 months in prison for her conviction on charges of perjury and abuse of her office. (Jon Hurdle and Richard Pérez-Peña), "Kathleen Kane, Former Pennsylvania Attorney General, Is Sentenced to Prison," The New York Times, Oct. 24, 2016)
There is a morality tale here--but one that elites are unlikely to comprehend or to appreciate if they do discern its shadows. Indeed, this is a tragedy not just for this person, but for the political class she symbolizes.  And that should concern us all.  When our leadership loses its moral authority, when it is understood as corrupt in their essence and not just in their practices, the entire political society is threatened.  This is a saga of a person who constructed herself as an outsider who would reform the corruption and rot of a government, and who wound up contributing to that corruption instead. And in that process she produced what might have been a substantial constitutional crisis that might have embroiled the state in a crisis of legitimacy. This saga is a warning that our political, and legal elites must seriously consider cleaning their own houses before they presume to mange ours. 

Mr. Christina has been kind enough to write a marvelous short essay touching on the legal issues raised in the course of the prosecution of the former attorney general. That essay, Tactics, Counseling, and Consequences--The Kathleen Kane Saga Comes to an End,  follows along with his current biography.

 (Kathleen Kane's booking photo at the time of her arrest on August 8, 2015; Wikipedia)
The Kathleen Kane Saga Comes to an End
Anthony Christina

It seems that emails and scandal have become synonymous with political corruption this election cycle. However, Pennsylvania has not been immune from its own political scandal involving those topics. A scandal that embroiled a once rising star in the democratic party, shocked the public when revelations that attorneys and members of the Supreme Court had sent or received pornographic and offensive emails on their state computers, and a scandal that at its heart ultimately shook the integrity of the entire legal system in Pennsylvania. While complex, this saga boils down to two things—power and revenge…and it all started with a leak.

For those politicos and news junkies who have intently followed the Kathleen Kane saga, starting from when she took office in January 2013, the political and legal melodrama came to a chastening close last week. In a way it was always going to be over by November as Pennsylvania is electing a new Attorney General on November 8, 2016 no matter what had happened. But Kane’s luck ultimately ran out on August 15, 2016, when the former Attorney General was found guilty by a Montgomery county jury on all nine counts charged, including two counts of felony perjury and seven misdemeanors.[1] The next day Kane resigned, allowing First Deputy Bruce Castor to assume the role as Acting Attorney General until Governor Tom Wolf appointed Bruce Beemer as Interim Attorney General on August 18, 2016.[2][3] Finally, on October 24, 2016, Kathleen Kane was sentenced to 10 to 23 months in prison by Montgomery County Common Pleas Judge Wendy Demchick-Alloy.[4] To those familiar with Pennsylvania criminal justice system, Judge Demchick-Alloy imposed a ‘county’ sentence within the standard range of the state sentencing guidelines, reliving Kane of having to serve a more severe state sentence in a State Correctional Institution.[5]

As the events publicly unfolded over the past three years, Craig R. McCoy and Angela Couloumbis of the Philadelphia Inquirer and Daily News and Brad Bumsted of the Pittsburgh Tribune-Review published what seemed to be a never ending deluge of leaks, twists and updates. In my opinion they deserve the Pulitzer Prize. Kane’s narrative has been chronicled extensively with aggressive investigative journalism combined with well documented court filings that have been unsealed and released for lawyers, scholars, and the general public to scrutinize and review.

To explain the Kathleen Kane saga to someone unfamiliar with it’s almost Nixonian backstory is a difficult task, even to fellow members of the legal community. There are so many moving parts, so many players, and not to mention the legal equivalent of a Russian nesting doll—grand jury leaks about grand jury leaks. The public record runs extremely deep and is well chronicled and cited, but it is also complex and confusing to the average reader without knowing the political and legal backstory behind the actors involved and their motives. I spent the better part of two years intently following this saga in the press and five months intensely researching this topic to produce a sixty-plus page independent study project that was finished in April, before Kane’s trial, before the verdict, before her resignation, and before sentencing. I felt I owed Professor Larry Backer some closure to opine on the subject now that Kane has been sentenced. What Professor Backer and I set out to do when we picked the topic was to provide some academic scholarship, even if somewhat premature, on a controversial topic in the Pennsylvania legal community that we felt was not being studied through the correct lens. Most articles and opinion pieces dealing with Kathleen Kane dealt with the political backstory involving a colorful cast of characters and rivals who proved excellent fodder for sensational headlines of political intrigue. What had not been addressed was a potential constitutional crisis that became averted as to Kane’s ability to still function as Attorney General when her law license became suspended.

On October 31, 2016, the Pennsylvania Superior Court (PA midlevel appellate court) recently put an end to the controversy of any potential unlawfully obtained convictions of defendants who had been charged after Kane’s law license was suspended. Defendant Matthew Swanger argued that his conviction on child pornography charges should be dismissed because Kane lost her law license.[6] Specifically, Swanger’s attorneys argued that because Kane had lost her license, she lacked the authority to act as Attorney General or to assign anyone else to prosecute the case in her name.[7] Senior Judge William Platt upheld Sanger’s conviction, concurring with the trial court that while Kane lacked a law license, she was still administering her office on non-legal matters at the time; and that Kane had her law license when she appointed the prosecutor as a deputy in 2013.[8]

Without the Penn State/Jerry Sandusky Scandal there would not have been Kathleen Kane’s meteoric rise out of political obscurity. And without Kane’s commissioned internal review (Moulton Report) of her office’s handling of the Sandusky grand jury investigation, the Porngate Scandal which has rocked the entire Pennsylvania judicial system would not have been uncovered.[9]

Besides a melodrama full of actors and scandal, the Kane saga has posed and answered some important questions to the Pennsylvania legal community. The Kathleen Kane saga posed these questions—what type of work can an attorney who has had their license suspended actually perform? Are legal decisions done in the name of a suspended attorney still valid? Can the Attorney General still effectively perform their job while criminally charged based on actions stemming from their official conduct? In the end we ultimately learned (from September 2015 until August 2016) with a suspended law license Kathleen Kane was able to remain in office as Attorney General, collect her salary, give press conferences, attend events, direct and instruct personnel, but delegated and ceded the all-important authority to make legal decisions to the First Deputy Attorney General, essentially stripping her of influencing any legal decisions.

And while Kane was taken out of court in handcuffs last Monday, she will remain free on bail pending her appeal on limited grounds. But if this saga has taught us anything, it’s to expect the unexpected. And perhaps there is still more to be written…








[7] Id.

[8] Id.



Anthony Christina received his B.A. (Phi Beta Kappa) from The Pennsylvania State University where he doubled majored in Political Science and History.

Mr. Christina received his J.D. from the Dickinson School of Law where he was a resident forum blogger for the Penn State Law Review and the Journal of Law and International Affairs. Mr. Christina was active on the law school’s co-curricular trial team and served as president of the Trial Advocacy Board.

Upon graduation Mr. Christina joined the law offices of Lowey, Dennenberg, Cohen and Hart. Prior to joining the firm while in law school, Mr. Christina worked for the Philadelphia District Attorney’s Office and the Pennsylvania Office of Attorney General. Mr. Christina also served as a judicial extern for The Honorable Kim R. Gibson of the United States District Court for the Western District of Pennsylvania. Mr. Christina is active in the Justinian Society of Philadelphia and is a member of both the Philadelphia and Pennsylvania Bar Associations.

Mr. Christina is admitted to practice law in Pennsylvania and is awaiting his New Jersey bar admission results.

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