ORIGINAL
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA ~ CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA.
v
KATHLE!
ING. KANE
MOTION OF ATTORNEY GENERAL KATHLEEN G. KANE
TO QUASH BASED ON SELECTIVE AND VINDICTIVE PRt
L2 Nav GZ
2
:CUTIO!
Attomey General Kathleen G. Kane, by and through her counsel, Gerald L. Shargel, Esq.,
hereby moves the Court before the Honorable Wendy Demchick-Alloy, Justice of the Court of
‘Common Pleas, Montgomery County, 2 East Airy Street, Norristown, Pennsylvania for an Order:
1. Quashing the charges in this case because Attoey General Kane is the victim of
selective and vindictive prosecution;
2. And for any other relief the Court deems just and proper.
Dated: New York, New York
April 27, 2016
Winston, wn LLP
Geral Shargel, Esq,
Seth C. Farber, Esq.
‘Attorneys Pro Hac Vice for Attorney General
Kathleen G. Kane
Minora, Minora, Colbassani,
Krowiak, Mattioli & Munley
Amil M, Minora, Esq
Attorney for Attorney General Kathleen G. Kane
Attomey ID: 22703
349ORIGINAL
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA — CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v
KATHLEEN G. KANE
MEMORANDUM OF LAW IN SUPPORT OF ATTORNEY GENERAL
KANE’S MOTION TO_
“TIVE AND VINDICTIVE PROSECUTIG
WINSTON & STRAWN LLP
Gerald L. Shargel
Seth C. Farber
200 Park Avenue
New York, NY 10166
Attomeys Pro Hac Vice for Attorney
General Kathleen G. Kane
MINORA, MINORA,
COLBASSANI, KROWIAK,
MATTIOLI & MUNLEY
Amil M. Minora, Esq.
Attomey for Attorney General
Kathleen G. Kane
Attomey 1D: 22703TABLE OF CONTENTS.
INTRODUCTION ........... 3
LEGAL STANDARD. 3
STATEMENT OF FACTS 4
ANALYSIS...
I. Others Similarly Situated Are Not Prosecuted
Il, Attorney General Kane Has Been Intentionally and Posty Singled Out for
Prosecution for an Invidious Reason - -
CONCLUSION...TABLE OF AU’
Page(s)
Cases
Com. v, Butler,
533 A.2d 105 (Pa. Super. Ct. 1987)... .. passim
Com. v. Butler,
601 A.24 268 (1991)...
Com. v, Rocco,
54d A.2d 496 (Pa. Super.¢ ct. 1988) 2 ippeal denied Com. v. Rocco, 559 A.2d
36 (1989). 23,4
Snyder v. Bender,
No. 1 0927 (YPK), 2010 WL 2103640 (M.D. Pa. May 25, 2010). Peete
Statutes
Pennsylvania's Criminal History Record Information Act..INTRODUCTION
Leaks of grand jury information are not uncommon; neither are disclosures of other
confidential information about criminal investigations. However, prosecutions for these leaks or
disclosures are extraordinary. Attorney General Kane was singled out for investigation and
subsequent prosecution in this case as a result of the initiative of prosecutors with personal
antagonism towards Attomey General Kane resulting from her exercise of her First Amendment
rights and her lawful duties as Atomey General of the State of Pennsylvania, Because the
Federal and Pennsylvania Constitutions prohibit such selective and vindictive prosecutions, the
charges in this case must be dismissed.
LEGAL STANDARD
The defense of selective and vindictive prosecution is a question of law that is properly
brought in a motion to dismiss, and is a complete defense to a criminal charge. Cor
/. Butler,
601 A.2d 268, 270-71 (Pa. 1991) (“Butler II"), At the heart of the defense of selective or
vindictive prosecution is the proposition that “[u]nder the equal protection clause of the
Fourteenth Amendment of the United States Constitution, the government must afford similarly
situated persons similar treatment.” See Com. v. Butler, 533 A.2d 105, 108 (Pa. Super. Ct. 1987)
(“Butler I”). In order to establish a case of prosecutorial selectiveness or vindictiveness, a
defendant must show that: “(I) others who are similarly situated to the defendant are not
generally prosecuted for similar conduct; and (2) the defendant has been intentionally and
purposefully singled out for prosecution for an invidious reason.” Id, at 109.
An “invidious reason” for prosecution can be demonstrated in one of two ways; either
situation warrants “inquiry and judicial intervention.” Com. v. Rocco, 544 A.2d 496, 498 (Pa.
Super. Ct. 1988), appeal denied Com. v. Rocco, 559 A.2d 36 (1989). The first is “where aprosecutive decision is based on discriminatory grounds of race, religion, national origin or other
impermissible classification.” Id, The second is where “the accused is treated more harshly
because he has successfully exercised a lawful right.” Id.; see also Butler HI, 601 A.2d at 270
(tating that defense may be “based upon the theory that due process prohibits a prosecutor from
punishing a criminal defendant in retaliation for that defendant’s decision to exercise a
constitutional right”). It is the second situation that exists in this case.
STATEMENT OF FACTS
As a candidate for Attomey General, Attomey General Kane publicly and openly
questioned and criticized the apparent mishandling of the Jerry Sandusky prosecution. In
particular, she pledged that, iff elected, she would commence a review of the Sandusky
prosecution.' Shortly after taking office she began that review, even retaining a former federal
prosecutor, H. Geoffrey Moulton, Jr. to lead the review and produce a report on his findings.”
Attorney General Kane’s review received considerable public attention, and press reports
suggested that the review might result in a public finding critical of the prosecution team,
including a finding that the investigation suffered from inexcusable delays.’ A lead prosecutor
* Jan Murphy, “State attorney general candidates want to review Sandusky case,” Pennlive.com,
Aug. 30, 2012,
http://www. pennlive.com/midstate/index. ssf/2012/08/state_attorney_general_candida.htm|
? Charles Thompson, “Attorney General Kane’s Sandusky deputy seen as fair, balanced,”
Pennlive.com, Feb. 4, 2013,
http:/Awww.pennlive.com/midstate/index. ssf/2013/02/attorney_gencral_kanes_sandusk.html.
* Charles Thompson, “Attorney General Kathleen Kane nears launch of Sandusky probe,”
Pennlive.com, Feb. 2, 2013,
hupy/www.pemnlive.com/midstate/index.ssf/2013/02/attorney_general_kathleen_kane_2.html
(The new inquiry, [Kane] has said, would look at, among other things: Whether enough
agents and investigators were dedicated to the investigation at the start? Why Sandusky
wasn’t arrested after the first credible case was built? Why Corbett’s staff took the case before
a grand jury? Did campaign contributions from board members of ‘The Second Mile,
Sandusky’s youth charity, influence matters?”); Thompson, “Attorney General Kane’s
Sandusky deputy seen as fair, baianced.” (“The pledge, in essence, is to conduct a thorough
4in the Sandusky investigation had been Frank G. Fina, and [:, Mare Costanzo assisted in the
prosecution, as well.’ The investigation and subsequent prosecution of Mr. Sandusky
received enormous publicity at the time,’ and, undoubtedly, was the capstone of Fina’s career
in the Office of the Attorney General (“COAG
Fina and Costanzo had lefi the OAG shortly after Attorney General Kane took office,*
and, according to published reports, were incensed by the Attorney General’s review of their
work, For example, a March 5, 2013 article in the Legal Intelligencer stated:
Attomeys and agents from the Pennsylvania Attomey General’s Office who were
involved in the investigation and prosecution of Jerry Sandusky are ‘outraged’
that Attomey General Kathleen Kane is keeping, her promise to investigate the
office’s handling of the case, and some are prepared to go public if the review’s
findings are overly critical of their work or inaccurate, sources close to the
Sandusky investigation said,
‘If they come afler us, we're coming out publicly,” said one source who held a
leadership post in the office and was involved in the investigation,
Ben Present, “Prosecutors Angered Over Kane’s Sandusky Investigation,” The Legal
Intelligencer, Mar. 5, 2013.
review of the 33-month Sandusky probe to answer lingering questions about why Sandusky
wasn't arrested after the first credible witness came forward; why the case was turned over to
a grand jury; and whether external factors like then-Attorney General Tom Corbett’s
gubernatorial aspirations influenced its pacing.”).
Sara Ganim, “Jerry Sandusky trial: Prosecutor is used to the spotlight,” Penn
10, 2012,
http://www. pennlive.com/midstate/index.ssf/2012/06/jerry_sandusky_prosecutor_is_u.html
(Pina); Mark Shade and Dave Warner, “Jerry Sandusky waives preliminary hearing on child
sex abuse charges,” The Christian Science Monitor, Dec. 13, 2011,
http://www. csmonitor.com/USA/Latest-News- Wires/2011/1213/Jerry-Sandusky-waives-
prcliminary-hearing-on-child-sex-abuse-charges (Costanzo)
See, e.g., Joe Drape, “Sandusky Guilty of Sexual Abuse of 10 Young Boys,” The New York
Times, June 22, 2012, http://www.nytimes.com/2012/06/23/sports/neaafootball/jerry-sandusky-
convicted-of-sexually-abusing-boys html?_r=0
Craig R. McCoy, *Phita. DA assembles team to investigate corruption,” Philly.com, Apr. 29,
2013, http://articles. philly .com/2013-04-29/news/38880260_1_veteran-prosecutors-political-
corruption-attorney-general,
com, June
5Approximately a year later, Attorney General Kane publicly criticized a second high-
profile investigation conducted by Fina during his tenure at the OAG: the “Tyron Ali”
investigation. In that investigation, Fina supervised a three-year undercover sting operation into
allegations of public corruption. Attomey General Kane halted the investigation without
bringing charges and publicly stated that Fina’s investigation was poorly conceived, badly
managed, and tainted by racism because it had targeted African Americans.”
Shortly after Attorney General Kane made her public statements, Fina (who by then had
become a prosecutor in the Philadelphia District Attorney’s Office) took the extraordinary step
of writing an op-ed article publicly attacking Attorney General Kane’s decision to close the
‘Tyron Ali investigation. In that article, Fina wrote:
Attorney General Kathleen Kane ended that corruption investigation without
charging any of the public officials involved, and she has in the past week
made critical and negative assertions about my colleagues and I and the work
that we performed in the investigation,
tee
Surely, an elected official should be able to and required to speak to the citizens
of this Commonwealth and explain how and why she made a decision to not
pursue possible official corruption, and instead chose to criticize those who
sought to bring possible crimes to light, and then remain silent when called to
answer,
1 await AG Kane's response to my invitation to speak to the citizens of this
state ~ unless of course she remains silent at her lawyer’s direction.
7 Angela Couloumbis and Craig R. McCoy, “Kane: Targets committed crimes but sting still
flawed,” Philly.com, Mar. 19, 2014, hitp://articles.philly.com/2014-03.
19/news/48334899_1_sting-operation- ing-case (“While saying publie corruption made
her ‘sick,’ Kane said the sting was flawed and tainted by racism, and could not have Jed to
successful prosecutions. “There is nothing we can do to salvage this case,” she said.”).
6Frank G. Fina, “I challenge AG Kane to face me on the facts of corruption probe: Frank G.
Fina,” PennLive Op-Ed, Mar. 24, 2014,
hitp://www.pennlive.com/opinion/2014/03/i_challenge_ag_kane_to_face_me-html.
Only six weeks later, on May 7, 2014, Fina and Costanzo were contacted by a reporter,
Christopher Brennan, who indicated that he was working on a story that would be critical of their
conduct of yet another significant investigation, in this case, their failure to pursue corruption
charges against J. Whyatt Mondesire, the former head of the Philadelphia chapter of the
NAACP. (Exhibit A,
Transcript of Conference Held in Chambers, May 12, 2014, at 2-5.) This
time, Fina and Costanzo took even more extraordinary measures in response to the specter of
further bad publicity. First, even though Brennan himself was under no obligation of grand jury
secrecy and had a First Amendment right to publish his story, Fina and Costanzo attempted to
dissuade Brennan from doing so by intimating that grand jury secrecy obligations applied to him
and that’ publication of the article would be a “problem.” (Id. at 16.) Second, and even more
unusually, and even though the Mondesire investigation had ended five years earlier, in 2009,
Fina and Costanzo decided to instigate a criminal investigation,
Accordingly, the next day, on May 8, 2014, Fina and Costanzo sent a letter to Judge
William R. Carpenter “to report the release of Grand Jury information.” (Exhibit B, Letter from
Chief Assistant District Attomey E. Mare Costanzo and Assistant District Attorney Frank G.
Fina to Honorable William J. Carpenter, dated May 8, 2014, at 1.) They wrote that they had
been contacted by a reporter who claimed to have documents containing “extensive evidence and
information that clearly fall within the ambit of Grand Jury secrecy.” (Id. at 1.) They offered to
provide further details and answer questions and expressed a preference to do so at an in camera
conference with Judge Carpenter, (id, at 2.)On May 12, 2014, Fina and Costanzo appeared before Judge Carpenter in an in camera,
sealed proceeding. (Exhibit A at 1.)° During their appearance, Fina and Costanzo again stated
that they had been contacted by a reporter who claimed to have information related to a prior
grand jury proceeding. (Id, at 2-3.) Fina said that he believed it was his “duty” to report the leak
and offered his legal conclusion that “the individual who had provided [the reporter] with this e-
mail in all likelihood had committed a crime, possibly even a felony.” (Id. at 4.)
Judge Carpenter asked Fina and Costanzo what action they were requesting that the Court
take. (Id, at 10.) In response, Fina noted that Judge Carpenter could investigate the alleged leak
as a potential criminal violation. (Id, at 11-12.) Fina also suggested the appointment of a special
prosecutor to pursue criminal charges. (Id. at 12) (“Iudge Garb on one occasion appointed an
independent prosecutor, answerable only to him, somebody from outside the A.G.'s Office, and
that person looked into an alleged secrecy breacl
."), Fina even insinuated that he himself would
be particularly qualified to run a leak investigation. (1d, at 12) (“I have conducted some of these
reviews when I was in the Attomey General's Office on behalf of different supervising judges.
did it for Judge Garb. | also did it for Judge Feudale and a judge in Pittsburgh once.”),
Fina also suggested that the target of such a special prosccutor’s investigation should be
the Office of Attorney General:
This document, as far as 'm aware, only existed on a historical database
somewhere in the Attorney General’s Office. Who is looking through those
historical e-mails | am not aware specifically, but it has now apparently been
handed out to the media.
* Fina and Costanzo acted in their official capacity in their correspondence with, and appearance
before, the supervising judge of the investigating grand jury. First, they wrote Judge Carpenter
on the stationery of the Philadelphia County District Attomey and signed their letter as Assistant
District Attomeys. (Exhibit B at 1). Second, they gave their appearances at the start of the
conference as Assistant District Attorneys in Philadelphia County. (Exhibit A at 1.) Third,
before reporting the leak to Judge Carpenter, Fina had informed the Philadelphia County District
Attorney that he would be doing so. (Id. at 6.)
8at 12-13.) Fina continued:
‘The Court: What you are saying is, it would appear, without any firm basis for
knowledge, that it probably was leaked from within the Attomey General's
Office. That is what you would suspect.
Mr. Fina: Your Honor, again I don’t see any other reasonable explanation at this,
time.
(id. at 14-15.)
Significantly, during the conference, Fina admitted to Judge Carpenter that he and
Costanzo had a personal basis for antagonism against Attomey General Kane. In particular, Fina
stated:
T know we are certainly feeling Tike a couple of ten-point bucks in the first week
of deer season lately. I have reason to understand that the Office of the Attorney
General has been looking through historical emails, particularly my emails.
(id, at 13.)
Although Judge Carpenter likely took Fina’s comments to refer to a concern about being
the target of publie criticism over his performance in the OAG, in fact Fina and Costanzo had a
far more serious basis for their concer, The OAG email review eventually led to the discovery
and public disclosure of pomographic, racist, misogynistic and homophobic emails from the
government email files of numerous members of the OAG and other Pennsylvania public
officials. ‘That public disclosure has forced many of those officials from public office,” and,
when it was finally revealed that Fina and Costanzo had themselves received (and, in Fina’s
° See, e.g., Associated Press, “2nd top Pa. judge resigns over porn email scandal,”
CBSNews.com, Mar. 15, 2016, http://www.cbsnews.com/news/pennsylvania-judge-michael-
cakin-resigns-porn-email-scandal; Wallace McKelvey, “Pom email scandal forces resignation of
Pa. fraud investigator,” PennLive.com, Aug. 28, 2015,
htip:/swww.pennlive.com/midstate/index.ssf72015/08/kane_porn_email_resignations.htrnl
9case, also sent) such pornography,'° both faced public demands for their removal from the
District Attomey’s Office." Articles reporting on those public demands for removal included
graphic descriptions of some of the emails, including: “a 32-image pictorial circulated by Fina
entitled ‘Blonde Banana Split’ [that] shows two women inserting bananas into their vaginas and
anuses”;'? a 2009 email that Fina sent to his colleagues entitled “FW: New Office Motivation
6 snl
Policy Posters” “containing images with a theme of women sexually pleasing their bosses?
and, an email where “Fina indicated his favorite image was of a woman in a rainbow thong, with
a caption undemeath stating: ‘Rainbows: Not as Gay as You Might Think.
Judge Carpenter would have known none of this as he listened to Fina’s and Costanzo’s,
presentation, but these two Philadelphia County Assistant District Attorneys surely knew what
their own email correspondence contained and surely recognized the threat to their careers and
their reputations that Attorney General Kane’s investigation of that correspondence posed.
‘° Mary Wilson, “Court Releases Pornographic Emails Kane Wanted Public,” WKSGnews.com,
Aug. 26, 2015, http:/wskgnews.org/post/court-releases-pomographic-emails-kane-wanted-
public#stream/0 (“The court also unsealed a selection of the pomographic e-mails Kane’s office
‘uncovered, revealing Fina and Costanzo among the messages senders and recipients.”).
"See, e.g., Joel Mathis, “Why Doesn’t Frank Fina Quit?” PhillyMagcom, Dec. 9, 2015, at
http://www phillymag.com/news/2015/12/09/frank-fina-quit-resign/; Tricia Nadolny,
“Philadelphia DA reassigns prosecutors caught up in Porngate,” The Morning Call, Dec. 4, 2015,
http://www.meall.com/news/nationworld/pennsylvania/me-pa-porngate-philly-prosecutot
reassigned-20151204-story.html (referencing “repeated calls” for Fina and Costanzo’s
resignation due to the porngate scandal); Emest Owens, “Councilwomen call for resignation of
city prosecutors tied to Porngate,” Metro, Nov. 12, 2015, at
http://www.metro.us/philadelphia/councilwomen-call-for-resignation-ofcity-prosecutors-tied-to-
pomegate/zslok|---YKb6laFaHiclmY/ (referencing petition launched by group of Philadelphia
Councitwomen calling for resignation of Fina and Costanzo).
'2 ‘Tim Cwiek, “NOW Urges Firing of D.A. Staffers in Porn Ring,” EPGN.com, Sept. 24, 2015,
http:/hwww.engn,com/news/local/9403-now-urges-firing-of-d-a-staffers-in-pom-ring,
" David Gambacorta and William Bender, “Fina plays central role in scandals,” The Morning
Call, Oct, f, 2015, http:/Avww.meal].com/news/nationworld/pennsylvania‘me-pa-kane-porn-
email-frank-fina-20151001-story htm!
“* Cwiek, "NOW Urges Firing of D.A. Staffers in Pom Ring,”
10Unaware of this personal reason for animosity by Fina and Costanzo towards Attorney
General Kane, Judge Carpenter followed Fina’s suggestion to launch a criminal investigation.
Thus, on May 29, 2014, Judge Carpenter appointed ‘Thomas Carluccio as Special Prosecutor and
authorized his investigation into an alleged grand jury leak. (Exhibit C, Order Appointing
Special Prosecutor, May 29, 2014, at 2.) That investigation resulted in the grand jury report, a
subsequent referral to the Montgomery County District Attorney, and, eventually, the criminal
charges lodged against Atlomey General Kane in this case.
ANALYSIS
The charges in this case must be quashed because Attorney General Kane was the victim
of selective and vindictive prosecution. First, others who are similarly situated are not generally
prosecuted for similar alleged conduct, As detailed below, leaks of grand jury information have
‘occurred repeatedly in recent high-profile Pennsylvania cases — including two of Frank Fina’s
‘own cases; none of these other leaks appear to have resulted even in a grand jury investigation,
and certainly none have led to a criminal prosecution, as here. Second, Attorney General Kane
‘was targeted for investigation and prosecution for an invidious reason. Specifically, the timing
and circumstances of Fina’s and Costanzo’s actions, and Fina’s statements, alll support the
inference that ADA Fina and ADA Costanzo instituted the Special Prosecutor's criminal
investigation in an effort to retaliate against Attomey General Kane for exercising her First
Amendment rights and for actions she took while carrying out the lawful duties of her elected
office.
1. Others Similarly Situated Are Not Prosecuted
‘The first prong of the selective or vindictive prosecution standard is easily satisfied in this
case, as “others who are similarly situated to the defendant are not generally prosecuted for
usimilar [alleged] conduct.” See Butler J, $33 A.2d at 109. Indeed, a Westlaw search reveals no
reported decisions at all of Pennsylvania state court prosecutions for either leaks of grand jury
information or violations of Pennsylvania’s Criminal History Record Information Act (CHRIA)
for the past 25 years.'* But while such prosecutions are virtually unheard of, leaks of grand jury
information are not. Indeed, and as discussed below, there have been numerous recent leaks of
grand jury information in Pennsylvania and, as far as the public record reveals, none of these
other leaks has led to a grand jury investigation, much less to a criminal prosecution.
For example, during the grand jury investigation into Jerry Sandusky, the very charges
against the defendant were posted to the state court website while they were still supposed to be
secret.'* As mentioned earlier, the lead prosecutor on the Sandusky case was Frank Fina.
However, there is no indication in the public record that Fina or any other prosecutor convened
an investigating grand jury to examine that leak, and no one has been criminally prosecuted for
it. Similarly, during the “Bonusgate” scandal, a partial transcript of grand jury testimony was
leaked to the Pittsburgh Post-Gazette.'’ Once again, there is no public indication that any
investigation of this incident ever occurred and, once again, no one has been prosecuted for the
leak.
Even the March 17, 2014 Philadelphia Inquirer article that, according to the Complaint in
this case (August 6, 2015 Complaint, Affidavit of Probable Cause, at 2), served as the alleged
'S For instance, a search across the Westlaw database for all Pennsylvania criminal cases with
“violat!” in the same sentence as “Criminal History Record Information Act” yields no hits for
actual prosecutions under CHRIA.
'6 Sarah Ganim, “Attorney General to investigate early release of Sandusky charges as grand jury
probe continues,” The Patriot News, Nov. 5, 2011,
‘http://www _pennlive.com/midstate/index.sst/201 1/1 l/ag_to_investigate_early_releas.html.
Tracie Mauriello and Dennis B. Roddy, “Stetler aide links former lawmaker to Bonusgate,”
Pittsburgh Post-Gazette, June 19, 2009, http:/Awww.po:
‘gazetle.comm/news/state/2009/06/19/Stetler-aid iks-forme wimake
Bonusgate/stories/200906190180,
12“motive” for Attomey General Kane to release grand jury information contained multiple leaked
facts from the Tyron Ali grand jury investigation, For example, that article reports such
potentially disparaging facts as: “[flour state lawmakers took money. ... State Rep. Ronald G.
Waters accepted multiple payments totaling $7,650; State Rep. Vanessa Brown took $4,000;
State Rep. Michelle Brownlee received $3,500; and State Rep. Louise Bishop took $1,500, said
people with knowledge of the investigation.”"* Fina supervised the Ali investigation, but there is
no evidence that he brought these leaks to the attention of a supervising judge in an effort to start
in contrast to the treatment of
an investigation and prosecution, as he did here. And, ag
Attorney General Kane in this case, no one has been prosecuted for the Ali leaks.
In short, although there have been leaks of grand jury information in other recent, high-
profile cases, only Attomey General Kane has been prosecuted. Even when there were grand
jury leaks in two of Fina’s own cases, there is no evidence that he ever referred those leaks to a
supervising judge or recommended a criminal investigation. Among similarly situated
individuals, Attorney General Kane stands alone.
I. Attorney General Kane Has Been Intentionally and Purposefully Singled Qut
for Prosecution for an Invidious Reason
‘The second prong of the selective or vindictive prosecution standard is also satisfied in
this case, as the evidence strongly supports the inference that Atiomey General Kane was
intentionally and purposefully singled out for investigation and prosecution for an invidious
reason. In particular, the timing, and circumstances of Fina’s and Costanzo’s actions, and Fina’s
statements, all suggest that these Assistant District Attorneys targeted Attorney General Kane
because she had openly and publicly criticized their work on the Sandusky and Tyron Ali cases,
" Angela Couloumbis and Craig R. McCoy. “Kane shut down sting that snared Phila. Officials,”
Philadelphia Inquirer, Mar. 17, 2014, http://articles.philly.com/2014-03-
1 7/mews/48269239_1_investigation-kane-ali,
13and because she had made public statements and taken actions reflecting poorly on their
professional accomplishments and reputation. In effect, she was targeted because she had
exercised her lawful duties as Attomey General and her First Amendment rights to make public
statements about Fina’s performance.
‘An individual has a constitutionally protected right to hold elected office and to carry out
the lawful duties of that office. See, e.g., Snyder v. Bender, No. 1:09-CV-0927 (YPK), 2010 WL
2103640, at *4 (M.D. Pa. May 25, 2010) (discussing First Amendment right to run for elected
office and citing Flinn v. Gordon, 775 F.2d 1551, 1554 (11th Cir. 1985), for proposition that an
individual has “a constitutional right to run for office and to hold office once elected”). The
lawful duties of Attorney General Kane's office include the review of past OAG prosecutions to
determine if misconduct occurred (Sandusky), the decision to discontinue an investigation (Ali)
and the communication to the public of the reasons for her decisions. Because the evidence
points to the conclusion that ADA Fina initiated the criminal investigation of Attorney General
Kane because of his antagonism against her due to her exercise of these lawful rights, the
charges against her must be dismissed.
‘The Superior Court’s decision in Butler I, 933 A.2d at 108-110, is instructive. In Butler,
the defendant had been tried for prostitution three years prior. Id, at 105. At trial, she testified in
her own defense. Id. When asked if she had ever been convicted of a crime, she answered that
she had not. Id, She was acquitted. Id, Following her acquittal, she filed a civil action against a
police detective and other government officials based on an allegedly coercive search. Id.
-overed” that the defendant di
Shortly after her civil suit was filed, county officials “ fact
have a prior conviction, and she was arrested and tried for perjury based on her allegedly false
testimony al her prior trial, 1d, at 106.
14During the perjury trial, the detective who was the subject of the defendant's civil suit
testified that he was in fact the person who had leamed of her prior convietion and had reported
it to the District Attorney's Office. Id, Out of the jury’s presence, “he claimed that it was
merely coincidence that this information came to his attention after the civil suit was filed.” Id,
The court did not allow the defendant to develop this evidence at trial. Id.
On appeal, the Superior Court held that the trial court had erred in precluding evidence
that was relevant to the issue of prosecutorial vindictiveness. Id, at 108. The Court noted that “it
is unconstitutional for the government to prosecute an individual because the prosecutor hasa
personal animus against the defendant.” Id. at 108-09 (citing United States v. DeMichael, 692
F.2d 1059, 1061 (7th Cir. 1982)). “Because itis constitutionally repugnant, selective prosecution
constitutes a valid defense to a criminal charge.” Id. The Court added:
‘Though the vast majority of prosecutors are dedicated and able public servants
who would never misuse their tremendous power, our legal system strives to
prevent even the occasional injustice. Thus, the defense of selective prosecution
provides a check upon the arbitrary exercise of governmental power. When all
else has failed, an individual victimized by governmental wrath is still protected
by judicial vigilance.
Ud. at 110,
‘The Court held that the prosecution of the defendant for perjury had at least “a suspicious
air.” Id, at 109. The Court wrote:
In this case, Butler claims that Delaware County prosecuted her for perjury
because of her civil suit which is based upon an allegedly unconstitutional search.
Certainly, the proximity in time between the filing of the civil suit and Detective
O’ Leary’s re-awakening of interest in Butler's case has a suspicious air. It is also
suspicious that O'Leary mysteriously found a Justice Department report in
Butler's file soon after she filed her civil suit.
Id. The Court further wrote:
It is arguably logical that the County re-investigated Butler and dredged up
previously ignored information in retaliation for her lawsuit, The effect was then
15to single out Butler. ‘The purpose was to retaliate for her exercise of protected
constitutional rights.
‘The Court concluded that the defendant's allegations “made out a prima facie case of
selective prosecution” because she had “asserted both discriminatory effect and discriminatory
purpose.” Id. The Superior Court held that because the defendant's claim of selective and
vindictive prosecution had “arguable merit,” the trial court “should have held an evidentiary
hearing and given Butler an opportunity to present her defense.” Id. at 110.
As in Butler J, “the proximity in time” between, on the one hand, (a) Attorney General
Kane's public criticism of Fina’s and Costanzo’s work; (b) the “outrage” expressed by the
Sandusky prosecutors and their threat that ‘If they come after us, we're coming out publicly;” (c)
Fina’s op-ed piece (demonstrating his personal indignation about Kane's statements and actions
in relation to the Tyron Ali case); and, on the other hand, Fina’s and Costanzo’s report to Judge
Carpenter of allegedly leaked grand jury documents, and Fina’s supposition that it must have
involved Attomey General Kane and OAG, “has a suspi
us air,” to say the least. See
Also “suspicious” is Fina’s statement that he believed it was his “duty” to report a leak in
this five-year-old closed case. (See Exhibit A at 4.) When sensitive grand jury information was
leaked in the highly-publicized Sandusky case (on which Fina was the lead prosecutor), and
again in the Tyron Ali case (on which Fina was also the lead prosecutor), he apparently felt no
similar “duty,” as there is no evidence that he ever referred those leaks to the supervising judge
and, indeed, no one has been criminally charged for those disclosures.
In sum, the evidence indicates that, in response to harsh and ongoing criticism of their
professional accomplishments, and concerned about the potential consequences of an email
review that would eventually disclose their pornographic emails and lead to calls for their
16resignation, ADA Fina and ADA Costanzo singled out Attomey General Kane for investigation
and prosecution, Such selective and vindictive prosecution is unconstitutional, and, as a result,
the charges in this case should be quashed in their entirety. See Butler J, 533 A.2d at 109-10
(“Because itis constitutionally repugnant,” selective and vindictive prosecution constitutes valid
and complete defense to criminal charge).
CONCLUSION
For the foregoing reasons, the charges against Attomey General Kane must be dismissed
with prejudice. In the altemative, should the Commonwealth contest the factual bases of this
motion, an evidentiary hearing is required. See Butler I, 533 A.2d at 110.
Dated: New York, New York
April 27, 2016
Winston & Sjrawn LLP
Gerald. Shargel, Esq.
Seth C. Farber, Esq.
Attomeys Pro Hae Vice for Attorney General
Kathleen G, Kane
Minora, Minora, Colbassani,
Krowiak, Mattioli & Munley
Amil M, Minora, Esq.
Attomey for Attorney General Kathleen G. Kane
Attorney ID: 22703
17CONFERENCE HELD IN CHAMBERS
e MONDAY, MAY 12, 2014
9:30 A.M.
e 7 00081510
at
12
13
14
1s
16
a7
18
19
20
2.
22
23
24
25
(The following conference was
held in the judicial chambers with the Court, Marc
Costanzo, Esquire, and Frank Fina, Esquire, being
present:)
MR. COSTANZO: I am Mare
Costanzo. I'm currently an Assistant District
Attorney in Philadelphia County, formally a Deputy
Attorney General for the Commonwealth of Pennsylvania
MR. FINA: Frank Fina, also
currently an Assistant District Attorney in
Philadelphia County and formally Chief Deputy Attorney
General with the Office of Attorney General.
Your Honor, we are present,
unfortunately I don't remember the notice number or
even the grand jury, but it is regarding a matter that
was under investigation in 2009 before the grand jury
that was then sitting in Norristown, Pennsylvania
What has brought us here today
is phone calls that both Mr. Costanzo and I received
last Wednesday from a reporter named Christopher
Brennan with the Philadelphia Daily News. He called
us separately. We later determined, in talking to a
former co-worker of ours, William Davis, who had been
0001610
a.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
a Deputy Attorney General also in 2009 with the Office
of Attorney General, that he had also been called by
Christopher Brennan.
I'll speak about the call I had
with Mr. Brennan and let Mr. Costanzo talk about his
phone call.
I had been in court Wednesday.
When I returned from court sometime after 4:00 I
checked my messages in my office in the Philadelphia
District Attorney's Office and there was a message on
there from a reporter who I have never spoken to
before and have no familiarity with. He says his name
is Christopher Brennan with the Philadelphia Daily
News, and he left on the message that he was calling
about a specific document that he had in his
possession regarding Jerome Mondesire, who had been
for many, many years the head of the NAACP in
Philadelphia, Your Honor. He left his number and said
that he needed to talk to me about this matter.
It's not my standard habit to
call reporters back, but in this case, having some
recollection of the investigation in which
Mr. Mondesire's name had appeared, and knowing that
nothing regarding Mr. Mondesire in that investigation
0081710
1
12
13
14
15
16
17
18
19
20
2.
22
23
24
25
had ever been made public or been released from the
ambit of grand jury secrecy, I did call Mr. Brennan
back at approximately 5:00, 5:15 on Wednesday
He relayed to me that he had a
2009 e-mail which contained, either as an attachment
or as part of the text -- that wasn't clear to me
Your Honor -- a four to five page memorandum detailing
extensively the grand jury investigation that had been
conducted up to that point by Mr. Davis, and
Mr. Costanzo had also been a part of that
investigation, He actually read to me portions of the
document. It detailed extensively an investigation
that had been conducted into a nonprofit in
Philadelphia County that had been run by a woman named
Harriet Garrett. Miss Garrett had subsequently been
charged, Your Honor, as a result of that grand jury
investigation.
As part of that investigation
in reviewing the financial records of the nonprofit
and some other evidence, Jerome Mondesire's name had
appeared as a result of some monies he had received
from that nonprofit. And there was, again, detailed
information in that memorandum about Mr. Mondesire
his relationship with the nonprofit, and questions
‘009810
1
12
13
14
15
16
ay
18
19
20
21
22
23
24
25
that had been raised regarding the legality of his
conduct in taking money from the nonprofit.
I asked Mr. Brennan specifically
if he had this document in his possession. He said he
did. I asked him what was the form? He said it was
an e-mail. I asked him who was on the e-mail in terms
of recipients and senders. He said it was an e-mail
only between myself -- it was an e-mail received by me
from Mr. Davis, and Mr. Costanzo was c.c.'d, and that
nobody else appeared on this e-mail.
I then instructed Mr. Brennan
that there was a significant problem with his
possession of the e-mail. I said to him that I was
not going to give him an opinion as to the legality of
his situation possessing the e-mail, but that I could
assure him that the individual who had provided him
with this e-mail in all likelihood had committed a
crime, possibly even a felony. That this was grand
jury information. It is subject to the strictures of
secrecy under the Grand Jury Act and the Rules of
Criminal Procedure and rather extensive case law
I told him that I believed it
was my duty to report this, that he was in possession
of this. He said he understood. He seemed to become
0008182
20
a
12
13
14
15
16
18
19
20
21
22
23
24
25
a little bit nervous. He mentioned to me something
about the case agent on the case, who was an
individual named Michael Miletto. He said, Well,
Mr, Miletto has already been questioned about this by
the Office of Attorney General. I said, Questioned
about what? He said questioned about this case and
what happened with Mondesire, and everybody wants to
know why Mondesire wasn't charged, he said something
to that effect. And I said, This again I'm not going
to confirm or deny anything in regards to this. It's
grand jury information and I will need to report it.
Subsequent to that I spoke to
Mr. Costanzo and Mr. Davis about this, who had also
ended up talking to Mr. Brennan.
I have no hesitation, Your
Honor, going under oath or expressing in any manner
that I did not disclose this document. I do not have
possession of this document. I have not seen this
document since 2009. I will also just state, Your
Honor, that in my personal opinion it's not possible
that Mr. Costanzo or Mr. Davis would disclose this
document, either.
THE COURT: Did you report it
anywhere other than here?
082010
41
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR: FINA; I have not, Your
Honor; other than I did tell the District Attorney of
Philadelphia County that I would be reporting it here
because I felt that was the prudent thing to do.
MR. COSTANZO: Your Honor, I had
a brief conversation with Mr. Brennan. I actually
picked up the phone, it was earlier in the afternoon
0 or 3:30. He
on the same day, probably closer to
identified himself as Chris Brennan, and I think
that's the name he uses when he does a column. I've
heard of him. I may have spoken to him over the many
years of my career. I can't remember specifically
ever doing so.
He identified himself, He told
me that he wanted to speak to me about a case that I
may have been involved with and he had some questions
about an e-mail that he possessed, and specifically he
wanted to know why Jerome Mondesire was not charged in
a particular case and what happened with a particular
case.
I quickly was alerted to my
recollection of the case. Frankly, Your Honor
bevause there have been recent allegations about
Mr. Mondesire in the newspapers, where there has been
08212
10
ua
12
13
14
1s
16
a7
18
19
20
2.
22
23
24
25
a very open civil war in the NAACP in the Philadelphia
branch, where several older board members have made
accusations against Mr. Mondesire to the point where
they, I think, filed suit. They are represented by an
attorney whose last name is Egan; I can't remember his
first name. I know that Mr. Egan sent letters both to
the District Attorney of Philadelphia County and to
the Attorney General, probably in the last couple
months, alerting both law enforcement entities of
possible misuse of funds at the NAACP by Mr. Mondesire
and requesting some sort of inquiry. I was aware that
that request was in our office in Philadelphia County
So I quickly was very familiar with my recollection of
the case.
I was not the assigned attorney.
I was the senior attorney in the Norristown office
Mr. Davis worked with me. Mr. Davis was assigned that
investigation. It did lead to charges against Harriet
Garrett and her daughter for perjury
THE COURT: Is anything pending?
Is that case now closed?
MR. COSTANZO: That underlying
prosecution is closed and the actual case file in the
office was closed before my departure. I departed in
0082210
qi
12
13
14
15
16
17
18
19
20
21
22
23
24
25
January of 2013. I've had no contact with the case.
Frankly, I was c.c.'d on the
e-mail. The three of us were aware of the e-mail,
because basically the three of us spoke on the
telephone about the current status of the case and
various information that was coming out in grand jury
And it was Mr. Fina's suggestion to me and Mr. Davis
that he put a status summary together and send it to
him in Harrisburg so he could do whatever he felt was
appropriate with that information. I was c.c.'d
because technically I was between the two in the chain
of the command. So this was not an e-mail basically
alerting Mr, Fina to something he didn't know. It was
something we had all already spoken about, and this
was at the request of Mr. Fina to put it in the form
of a written document so that he would have it in hand
in Harrisburg.
So I had a recollection that
some sort of notice went up to Harrisburg. I didn't
remember if was an e-mail or a memo. I didn't
necessarily remember the contents of it, but I know
that it was a status memo.
According to Mr. Brennan, he
said it was four or so pages long. The first half had
00002310
1.
12
13
14
1s
16
aq
18
19
20
2u
22
23
24
25
to do with information about Miss Garrett. The second
half had to do with information with regard to
Mr. Mondesire. I told him very quickly, I said
That's grand jury information, It's not something I
can talk to or anybody else can speak to. He said
Well, I understand it's a closed case. Can't you talk
about it now? And I said, No; the grand jury secrecy
provisions provide for secrecy in perpetuity. So it
doesn't matter if the case is open or closed, it's not
something we can ever comment on, and frankly, it's
not something you should probably.be possessing. I
said, I don't know how you got it, but you shouldn't
have it and it may be illegal for you to have received
it from somebody. So I left it at that.
I later heard in the afternoon
from Mr. Davis that he had received a similar call.
He gave a similar response that it was not something
he could speak about, that it was grand jury, and left
it at that.
I spoke later Friday night with
Mr. Davis, of last week, after we sent the letter to
Your Honor and Your Honor set up a meeting with me for
today, and I asked Mr. Davis if he was available to
come today so that he could go on the record as well.
‘0092410
i
12
13
14
15
16
17
18
19
20
2.
22
23
24
25
10
He was interested in doing so. Unfortunately, -he
wanted me to report to the Court that he is due in
Media in Common Pleas Court. He is there. He'd be
happy to address the Court in any way, shape or form
in the future. He has told me that he's never had
possession of that e-mail and, of course, would never
have released it to anybody; doesn't know this
reporter and never spoke to him before.
Mr. Davis also indicated, if
need be, he would be available by telephone today if
Your Honor had any interest in hearing from him. And
that's my last contact with it, Your Honor
THE COURT: All right then.
What are you requesting the Court do, if anything?
MR. FINA: Your Honor, our
concern, our immediate concern, and it certainly
hasn't changed since last Wednesday, this is a
document that would not have been provided in
discovery in the prosecution of Miss Garrett or her
daughter. This is an internal document that, at least
to our minds, clearly contains grand jury information
As in a great many
investigations we have conducted over the years, we
encounter lots of information, some of it
‘0082510
1
12
13
14
15
16
aq
18
19
20
21
22
23
24
25
1
unfortunately unsavory about individuals who end up
not being charged. As this Court well knows, one of
the fundamental tenets of grand jury secrecy.
especially in an investigating grand jury as opposed
to an indicting grand jury, is that those matters if
not otherwise disclosed in furtherance of an
appropriate prosecution or grand jury report are to
remain sealed in perpetuity. Again, as this Court
well knows, the Rust Proof case is probably the
penultimate example of that.
This information about
Mr. Mondesire is information that would certainly
adversely affect his reputation if disclosed publicly,
and maybe worse, so we just felt it was important to
disclose it to the Court.
In the past -- and I'm not
trying to be presumptuous here, I'm just reciting
history -- in the past, when there have been potential
grand jury leaks, grand jury judges have conducted
under their authority as supervising judges, as is
explained with some clarity, I think, in the court
order from the Chief Justice appointing the
supervising judge, the supervising judge has really
absolute jurisdiction to look into any potential
00826,10
a.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
12
breaches in secrecy and determine what, if anything,
happened and whether it is a criminal violation of the
Grand Jury Act.
I have conducted some of these
reviews when I was in the Attorney General's Office on
behalf of different supervising judges. I did it for
Judge Garb. I also did it for Judge Feudale and a
judge in Pittsburgh once. Courts have handled it
differently, Your Honor. Judge Garb on one occasion
appointed an independent prosecutor, answerable only
to him, somebody from outside the A.G.'s Office, and
that person looked into an alleged secrecy breach
That ended up resulting in an agent with the Office of
the Attorney General being identified as the breach
some years later, and that person was actually
prosecuted for it and went to jail.
I'm not suggesting -- I don't
know what happened here, Your Honor, but I do know
from everything that I'm aware of is this document
contained grand jury information. This document, as
far as I'm aware, only existed on a historical
database somewhere in the Attorney General's Office.
Who is looking through those historical e-mails I am
not aware specifically, but it has now apparently been
0082710
ll
12
13
14
1s
16
a7
18
19
20
24
22
23
24
25
13
handed out to the media.
THE COURT: And you have not
contacted the Attorney General about this, I trust?
MR. FINA: I have not, Your
Honor.
THE COURT: What is the
reasoning, if you don't mind?
MR. FINA: Because I'm not sure
who may be involved in this disclosure, Your Honor
I'm anxious not to mix apples
and oranges. I know we are certainly feeling like a
couple of ten-point bucks in the first week of deer
season lately. I have reason to understand that the
Office of Attorney General has been looking through
historical e-mails, particularly my e-mails. So I
don't know where this document was released from, Your
Honor.
THE COUR
: Anything further?
MR. COSTANZO: I have nothing
Your Honor.
THE COURT: I'm wondering if I
should have this transcribed under seal and reviewed
by Mr. Jim Baker of the Attorney General's Office. Do
you have any thoughts there? He's in charge of the
00828.10
a
12
13
14
15
16
aq
18
19
20
2.
22
23
24
25
a4
grand jury, as I understand it.
MR. FINA: Yes, Your Honor. Mr.
Barker was actually put in that position while I was
with the office.
THE COUR'
Or do you think this
is the Garb situation?
MR. FINA: Your Honor, I don't
know. I think that it would be a safe assumption that
if you were to disclose this to Mr. Barker, he would
have an obligation to disclose it to his command. I
think that is just a situation you would have to bear
in mind.
I'm not in any way questioning
Mr. Barker's integrity
THE
Right. I understand
that.
MR. FINA: I would be shocked
beyond question --
THE COURT: What you are saying
is, it would appear, without any firm basis for
knowledge, that it probably was leaked from within the
Attorney General's Office. That is what you would
suspect.
MR. FINA: Your Honor, again I
oxgo2910
ee
12
13
14
15
16
17
18
19
20
21
22
23
24
25
15
don't see any other reasonable explanation at this
time.
THE COURT: Because it wasn't in
discovery. It wasn't otherwise disclosed in the
prosecution. And your shaking your head yes?
MR. FINA: Yes, Your Honor.
This was an entirely internal
memo that I don't know at the end of the day whether
there were even a sum total of five people who may
have laid eyes on it. I would have showed -- and 1
don't have a specific recollection of this -- but in
normal practices, when I would ask for a memo like
this, it would be because I would show it to my
supervisor, who was Richard Sheetz. Again, Your
Honor, Richard Sheetz does not have copies of these.
THE COURT: And the timing of
where we are with all of this is, I don't even
remember the name of the controversy that the Inquirer
has been exploring between Attorney General Kane and
the uncharged people in Philadelphia.
What would you call that
investigation? You were in charge of it.
MR. FINA: It was called The
Undercover Lobbyist Investigation, was the formal
‘0022010
aL
12
13
14
15
16
17
18
19
20
2u
22
23
24
25
16
title in the Attorney General's Office.
THE COURT: That still is
churning, so to speak. Isn't it in the news to some
extent?
MR. FINA: It is, Your Honor,
And that's what I was referring to earlier when I said
apples and oranges.
THE COURT: And Sandusky is
still churning to some extent.
MR. FINA: Unfortunately.
THE COURT: Do you think that
some aspect of what we are talking about is going to
end up in the newspapers in the near future? Is that
your sense from talking with that reporter?
MR. COSTANZO: That's an
interesting question, Your Honor. I know Mr. Fina
more than I, but we both got the impression that
Brennan was about to go with the story. And I think
he specifically said that to Mr. Fina, but I’ think
during the conversation with Mr. Fina he seemed to get
a little nervous and said that he needed to bring this
to the attention of his editors. Now it's been
several. days and there's been no --
THE COURT: Because you both
ones10
a.
12
13
14
is
16
uy
18
19
20
21
22
23
24
25
17
cautioned him that it was grand jury material and
possibly a problem.
MR. FINA: We are hoping, Your
Honor, that has caused them considerable pause and
will prevent them from running a story on this;
although, investing-in the good will of the media is a
rather risky venture. But to date there has been no
story.
And again, Your Honor, to be
totally candid, it is profoundly my deepest hope, and
I know Mr. Costanzo's as well, that there is some
rational explanation for this and that this is not
Part of an act of vengeance or an act of criminality
by anybody in the Office of the Attorney General.
I'm really not just saying this
We have the deepest fondness for that office as an
entity and have not sought conflict at any point with
that office or its members. Now, when the sword gets
drawn, we fight back. But this is not part of that in
any way, shape or form. And I hope, indeed, it's not
part of it from the other side as well, but the facts
as they currently appear to us don't add up
particularly well in terms of where this information
must have come from. It seems to me that it had to
0005210
a.
12
13
14
15
16
7
18
19
20
21
22
23
24
25
18
come from the Office of the Attorney General, based on
what I know at this time.
know, Your Honor.
THE
further?
MR.
MR.
THE
MR.
Now who and why, I don't
COURT: All right. Anything
COSTAN20: No, sir.
FINA: No, sir.
COURT: Thank you very much.
COSTANZO: Thank you, Your
Honor. We appreciate your time.
THE
sealed,
(at
is concluded.)
000035
CouRT: This matter is
10:00 a.m., the conference19
CERTIFICATION
I hereby certify that the
proceedings and evidence are contained fully and
accurately in the notes taken by me in the above cause
and that this is a correct transcript of the same.
MEGAN McCARTIN, R.P.R.
Official Court Reporter
00034ee
DISTRICT ATTORNEY'S OFFICE
‘THREE SOUTH PENN SQUARE
PHILADELPHIA, PENNSYLVANIA 19107-3499
(215) 688-8000
SETA WILLIAMS
DOISTRICTATTORNEY
May 8, 2014
Honorable William R. Carpenter
‘Supervising judge Statewide Grand Jury
Montgomery County Courthouse
2 East Airy Street
Norristown, PA 19404
Via fax (610)-278-5192 and U.S. Mail
RE: Grand Jury information
Dear Judge Carpenter:
We are providing this correspondence to report the release of Grand Jury information.
Yesterday, the undersigned were separately contacted by an individual who represented himself as,
Chris Brennan, “a reporter with the Philadelphia Daily News”, He stated that he was in possession of a
2009 email between Frank Fina, Marc Costanzo and Williafn Davis. At the time, Frank Fina was Chi
Deputy Attorney General for the Criminal Prosecutions section of the Attorney General's Office and
Marc Costanzo and William Davis were prosecutors in that section. The email contained a lengthy
review of the evidence and testimony froma Statewide Grand Jury investigation being conducted at the
time. As part of that investigation, information derived from the Grand Jury about a certain prominent
individual who was never charged — was detailed in this internat email. We are hesitant to detail this
information in a correspondence but will gladly do so in person. We can represent to the Court that the
email contained extensive eviderice and information that clearly fall within the ambit of Grand Jury
secrecy. The reporter stated that he had a copy of the email and he.even recited from it when
‘questioned about the contents. The reporter also stated that the email was only between Fina, Davis
and Costanzo, We can assure the Court that none of us disclosed this email.
We were subsequently called by Wiliam Davis, now in private practice in Delaware County, who
relayed that he too had been called by Brennan about this email. All three of us, separately, informed
Brennan that he possessed secret Grand Jury information and that whoever gave it to him had likely
committed a serious crime. We are also certain that, as individuals who continue to be sworn to secrecy
before the Grand Jury in question, we have an obligation to disclose this apparent breach of secrecy to
the current Supervising Judge.
00912We are available, at the Court's discretion, to provide further details and answer any questions
‘regarding this matter. We would prefer to do so on the record in camera, but obviously defer to the
Court in this regard,
Thank you for your attention to
Cc Edward McCann
First Assistant District Attorney, Philadelphia District Attorney's Office
William Davis, Esquire
covers
Sincerely, .
EM Lies
E, Marc Costanzo
Chief Assistant District Attorney
Lae
Frank. Fina
Assistant District AttorneyFina, SiW
DISTRICT ATTORNEY'S OFFICE
THREE SOUTH PENN SQUARE
PHILADELPHIA, PENNSYLVANIA 19107-3499
cova
Honorable William R. Carpenter
Supervising Judge Statewide Grand Jury
ZEast Airy Street 24. Lox SH
Norristown, PA 19404
Aseqigasis cOOTIN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA,
IN RE: 7 MD 1424-2 014,
THE STATEWIDE :
“4, : MONTGOMERY COUNTY COMMON PLEAS.
INVESTIGATING GRAND JURIES a
: In Re: Powers and Responsibilities of
+ Special Prosecutor Exercising
: Extraordinary Jurisdietion; on Allegations that
+ Secret Grand Jury or Related Information was
1 Unlawfully-and/or Negligently
1 Accessed/Released/Compromised
SEALING ORDER
AND NOW, this 29th day of May, 2014, it is hereby ORDERED, that the attached
Order of May 29, 2014 be filed under seal. with the Clerk of Courts of Montgomery
; z
8 2.
County until further Order of this Cour. = 3
= sk
Eee eee
BES
wo =2B29
RO
# gM
2 82
BY THE COURT: gi?
WILLIAM R. CARP!
Supervising Judge
True and correct Copy
a from the recordIN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, PENNSYLVANIA
IN RE:
THE STATEWIDE
: MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURIES 7 vine
: In Re: Powers and Responsibilities of
: Special Prosecutor Exercising
: Extraordinary Jurisdiction; on Allegations that
1 Secret Grand Jury or Related Information was
: Unlawfully and/or Negligently
2 Aecessed/Released/Compromised
ORDER
AND NOW, this 29th day of May, 2014, after “preliminary investigation”; this
court in its capacity as Supervising Judge of the 35" Statewide Investigating Grand Jury,
finds there are reasonable grounds to believe a further more substantive investigation is
warranted into allegations that statewide Grand Jury secrecy may have been compromised:
It is therefore ORDERED and DIRECTED by this Court in accordance with the authority
vested in it by the 1078 Pennsylvania Investigating Grand Jury Act of 1978, 42 Pa. C.S. §
4541, ef seq. and the procedural rules that followed (Pa.R.Crim.P 220, ef seg.) as well as
relevant case law; that THOMAS E. CARLUCCIO, ESQUIRE, be and is hereby
appointed Special Prosecutor with full power, independent authority and jurisdiction to
investigate and prosecute to the maximum extent authorized by law any offenses related to
- any alleged illegal disclosure of information protected by the aw and/or intentional and/ornegligent violations and rules of Grand Jury secrecy as to a former Statewide Investigating
Grand Jury, such as;
1, 42 Pa. CS. § 4549(b) Disclosure of proceedings by participants other than
“Witnesses,..”all such persons shall be sworn t6"secrecy, and shalll be in contempt
of court if they disclose/reveal any information which they are sworn to keep
secret.”
tad
18 Pa. C.S. § 5101 Obstructing administration of law or other governmental
function — “a person commits a misdemeanor of the second degree if he
intentionally obstructs, impairs or perverts the administration of law or other
governmental function by force, violence, physical interference or obstacle,
breach of official duty.
3. Any other applicable offense.
Itis FURTHER ORDERED by the Court that the Special Prosecutor:
1. Shall use any appropriate currently empaneled Grand Jury to investigate any
alleged or suspected violations of secrecy or concomitant crimes related to such.
ee
Shall have the right to request an application for an immunity order from the
Attorney General
e
. Shall have the right to employ all appropriate ‘resources including a minimum of
one investigator and if necessary, one support staff.4. Shall have day-to-day independence and will be free to structure the
investigation as he wishes and to exercise independent prosecutorial discretion
whether, which and when any potential witness should be brought before the
Grand Juéy. and/or whether, which and when chargés. should be brought,
including contempt of court.
Shall be permitted, while serving as Special Prosecutor, to consult with past and
s
present members of the Office of Attomey General and take such action as is
necessary to ensure that matters he is investigating and/or prosecuting in his role
as Special Prosecutor are brought to a successful conclusion, so long as such
consultation/action does not present a conflict of interest with his duties as
Special Prosecutor and/or violate the secrecy oath.
bal
Shall be empowered to respond to interference with his investigation by also
having authority to investigate and prosecute crimes committed in the course of,
and with the intent to interfere with the Special Prosecution’s investigation such
as Perjury, Intimidation of witnesses and other applicable and relevant violations
of the law.
. Shall comply with all relevant statutory and case Jaw as well as all applicable
x
canons of ethics.
Shall be removed from the*position of Special Prosecutor.only by the personal
~
action of the Grand Jury Judge and/or the Pa Supreme Court. _9. Shall be appointed for a period not to exceed six months from today, unless the
Special Prosecutor makes a written request to the Court for an extension setting
forth the reasons for the extension.
10.The Special Proseciitor shall be compensated at the rate of $65.00 an hour to be
paid by the Commonwealth of Pennsylvania. The investigator/support staff
chosen by the Special Prosecutor shall be compensated at the rate of $20.00 an
hour. All those seeking compensation shall keep detailed records of time and
services rendered. All shall provide the Supervising Grand Jury Judge with a
monthly accounting of time/services rendered.
11.Shalll provide the Supervising Grand Jury Judge with periodic summaries of any
progress.
12,Submit a report addressed to the Pennsylvania Supreme Court, and the
Supervising Grand Jury Judge, setting forth any findings and recommendations
on any proposed statutory, rulemaking or recommended practices that would
preserve the critical requirement of secrecy in Grand Jury proceedings as well as
insuring the rights of defendants to a fair trial and maintaining the integrity of
our Grand Juries.BY THE COURT:
e
; WILLIAM R. CARPENTER,
kee Supervising Judge
e
Copies sent on May 29, 2014
By First Class Mail to:
Chief Justice Ronald D. Castille
Pennsylvania Attorney General Kathleen G. Kane
e ‘Thomas E. Carluccio, EsquireThereby certify that I am this day serving Attorney General Kathleen G. Kane's Motion
to Quash Based on Selective and Vindictive Prosecution upon the persons and in the manner
indicated below. The manner of service satisfies the requirements of Pa.R.Crim.P. 575.
Service by hand:
‘Thomas McGoldrick (610) 278-3126
Chief, Trials Division
Montgomery County District Attomey’s Office
P.O. Box 311
Norristown, PA 19404
TMcGoldr@montcopa.org
(Attorney for the Commonwealth)
Dated: New York, New York
April 27, 2016
HOF Hd £2 Ud¥ 9102
‘ean Gilhert Leonidas
Docket Clerk
Winston & Strawn LLP
200 Park Ave.
New York, NY 10166
(212) 294-5349