A series of pre-trial decisions rendered against Kane in the weeks and months leading to the jury verdict helped to seal her fate — long before a jury was ever selected.
A show trial, Merriam-Webster’s dictionary tells us, is “a trial (as of political opponents) in which the verdict is rigged.”
Was last week’s jury trial in Montgomery County of state Attorney General Kathleen Kane rigged, and was it a show trial?
Kane’s trial certainly was designed by court officials and Kane’s political enemies (who were often one and the same) to produce the desired result: a criminal conviction of Kane, and her removal from office.
Before the trial even began on August 8, the odds, it seems, had been stacked against her.
A series of pre-trial decisions rendered against Kane in the weeks and months leading to the jury verdict helped to seal her fate — long before a jury was ever selected.
Adverse pre-trial publicity from those Kane was investigating
Kane, it seems fair to say, was railroaded by the highest judges and political figures in the state for more than a year before her trial.
From September 2015 onward, Kane received a tremendous amount of adverse pre-trial publicity when the state Supreme Court, in a unanimous decision, stripped her of her ability to practice law — an unprecedented occurrence for a public official who had yet to stand trial, and which certainly harmed her in the eyes of public, and the jury pool.
The Supreme Court, in its decision, even remarked that it could not by law remove Kane from office, but suggested the legislature could.
As if on cue, Kane’s law license suspension was immediately seized upon by her avowed political enemies in the courts and the legislature as grounds to force her from office — before there was ever a trial.
Her enemies in the state press parroted this sentiment.
Kane’s law license suspension quickly became national news, and was even reported in the Wall Street Journal.
“Ms. Kane has said the criminal charges against her are a conspiracy ginned up by two former state prosecutors who feared their exposure in a pornographic email scandal she was investigating,” the Wall Street Journal reported way back in September 2015.
One of those prosecutors, Frank Fina, began the criminal proceedings against Kane after he was telephoned by Chris Brennan of the Philadelphia Daily News and asked to comment on grand jury material given to Brennan by his supposedly “confidential source.”
In the months that followed, the state Supreme Court repeatedly refused to reinstate Kane’s law license.
Two of the high court’s justices would end up resigning in the porno email scandal, and at least two others would be implicated in sending or receiving the distasteful emails.
Even more pre-trial publicity was generated against Kane when her law license suspension was loudly used against her as grounds to remove her from office in late 2015 and early 2016.
Those efforts by political enemies to remove Kane from office by Senate Direct Address and, later, impeachment, failed, but not before Kane was further harmed in the court of public opinion.
Kane’s pre-trial motions ignored
Several important pre-trial motions filed by Kane’s legal team in the run-up to the trial were then regularly and predictably ignored by the Montgomery County court system — the same county court system that had charged Kane with crimes, and which clearly had it in for her.
These crucial pre-trial motions included requests to change the venue to another county, and to recuse all 22 judges in the Montgomery County courthouse, who, Kane’s lawyers said, had a “clear interest in its outcome.”
Throughout the pre-trial proceedings, the fairness and impartiality of the entire Montgomery County bench was repeatedly called into question.
Nevertheless, the motion for recusal was denied by trial Judge Wendy Demchick-Alloy in late March 2016.
By this time it was painfully clear that many in the state court system were leaking grand jury material about Kane’s case, and other matters, to the Pennsylvania press with impunity.
The grand jury proceedings against Kane were freely leaked, as were other trial materials, including an FBI wiretap. These leaks also further damaged Kane’s chances for a fair trial.
(As I write, on August 23, former prosecutor Fina was subpoenaed to testify about grand jury leaks in the Jerry Sandusky case.)
Yet only Kane would be prosecuted.
Even so, Montgomery County Judge Demchick-Alloy denied Kane’s pretrial motion that AG Kane was the victim of selective and vindictive prosecution.
Kane denied ability to mention porno email court scandal in her defense
Perhaps the most damaging pre-trial decision by Judge Demchick-Alloy was that Kane’s legal team could not suggest to the jury that her prosecution was the result of retaliation by the “old-boy network” in the state courts for Kane having found upwards of 100,000 pornographic and otherwise distasteful emails — many of them circulating between Supreme Court justices and prosecutors involved in her case.
Many of these disgraced email senders lost their jobs.
Nearly all of them were well-placed professional men who were mad as hell at Kane; coincidence or not, many of them kept showing up in Kane’s prosecution or legal proceedings.
Kane had been saying for two years that her prosecution was the result of retaliation for the pornographic email scandal.
But Demchick-Alloy ruled that Kane’s lawyers would be charged with contempt of court if they brought it up.
This essentially gutted Kane’s defense.
Lawyers call this a “motivational defense.”
“Without a motivational defense,” one lawyer tells me, “you get a conviction every time.”
A defendant accused of shooting and killing someone in a fight, for example, may explain that his motivation was in self-defense, and so his actions were exculpatory.
When a defendant is unable to make a motivational defense, things are much more cut-and-dried for the prosecution: it doesn’t matter that you were defending yourself — you had a gun, you aimed it, you pulled the trigger, you killed someone, case closed. You are guilty of murder.
Kathleen Kane certainly was in a fight with the old-boy network that controls Pennsylvania’s courts.
That she was not allowed to mention this not only guttered her defense.
It produced a much different trial than would have resulted otherwise.
Had Kane been allowed to use her defense, it’s easy to see that her trial would have been much different.
Former Supreme Court justices and prosecutors brought in to testify that they had been ensnared in Kane’s porno email scandal would have certainly produced a battle royal, instead of the gutted defense that we saw at trial.
Whether jurors would have been persuaded is another matter.
But jurors certainly would have seen that there was much more to this case, beneath the surface, than Montgomery County prosecutors presented.
Judge for the prosecution, and questionable immunity deals
It’s also worth noting that Kane’s trial judge, Wendy Demchick-Alloy, was herself a former prosecutor in the Montgomery County DA’s office.
Everyone at Kane’s trial seemed to either be a prosecutor, or a former prosecutor.
(“Prosecutors prosecuting prosecutors?” one reader commented on one of my articles about the trial. “Who do you root for?”)
A campaign statement Demchick-Alloy provided when running for judge in 2009 reads:
“Wendy Demchick-Alloy has been an accomplished prosecutor for over eighteen years, serving in two counties under four administrations of District Attorneys in both Montgomery and Philadelphia counties. In the Montgomery County DA’s Office, she served as head of the county Grand Jury Unit, head of the Major Crimes Unit and head of the Sex Crimes Unit. In the Philadelphia DA’s Office, Ms. Demchick- Alloy was assigned to the Juvenile, Rape, Child Abuse and Homicide Units.
“… She has successfully prosecuted many high profile cases including assisting former District Attorney Bruce L. Castor, Jr. in the prosecution of Commonwealth vs. Guy Sileo also known as The General Wayne Inn murder case. She successfully prosecuted the case of Commonwealth vs. Paul Bellina, known as the ‘Naked Neighbor’ homicide in Upper Gwynedd.”
Nowhere in Demchick-Alloy’s campaign statement, it’s interesting to note, does she suggest that she will be an impartial judge; nor does she even mention the importance of impartiality, or fairness in a trial judge.
At Kane’s trial, Demchick-Alloy often seemed to conduct herself as a super-prosecutor, and she seemed to mostly side with the prosecution.
Demchick-Alloy also approved District Attorney Kevin Steele’s controversial immunity deal given to the most damaging witness against Kane, Josh Morrow, a political consultant.
Morrow previously received another immunity deal in 2015, in which he cleared Kathleen Kane.
A similar questionable immunity deal figured in the federal prosecution of state Treasurer Budd Dwyer in 1986, and led to his dramatic public suicide.
Dwyer complained bitterly of fast and loose, and often contradictory, immunity deals leading to his own conviction.
“If evidence can’t be developed it is fabricated by using the currently legal techniques of lies, deals, leaks, threats, immunity, harassment, rumors, abusing the plea bargain process and virtually every other technique used in authoritarian nations with the possible exception of physical torture,” Dwyer wrote before killing himself.
Dwyer asked for reform.
In Dwyer’s case, he complained, a witness was allowed to produce “two versions” of events, “one truthful and the other in exchange for immunity.”
When it comes to the conflicting testimonies of her former friend and consultant Josh Morrow, Kathleen Kane can make the same complaint.
Kane of course can, and probably will, appeal these and other issues.
Trouble is, her appeals will be heard by many of the same angry and compromised judges who denied her pre-trial appeals.
Kane made it easy for them
This much is clear: If you’re going to go up against the powers-that-be in corrupt Pennsylvania government and courts, you better keep your own nose clean.
Treasurer Budd Dwyer embarrassed Gov. Dick Thornburgh by questioning the travel vouchers of Thornburgh’s wife, Ginny, and the transportation of the Thornburghs’ child to school.
In the 1990s, state Supreme Court Justice Rolf Larsen accused two of his fellow high court brethren of fixing cases.
Both Dwyer and Larsen soon found themselves prosecuted for their own peccadilloes.
In Pennsylvania, you are protected when you go along, and you’re endangered when you don’t.
It should go without saying:
Kathleen Kane should never have been reading the Philadelphia Inquirer and Daily News, and should have ignored the negative coverage of her in those newspapers.
Their stories, designed for a meaningless flash fight, would have quickly blown over.
And Kane certainly should never have entrusted the Daily News’ Chris Brennan to protect her as a news source.
Chris Brennan’s source — who should have been protected — has now been convicted of leaking a news story to him, and Kathleen Kane faces a jail sentence.
If anyone else wants to go to jail, giving a news story to the Inky and the Daily News seems a quick way to get there.