Judge delays contempt hearing for Attorney General Kane

HARRISBURG - A Montgomery County Court judge has postponed next week's hearing to determine whether Pennsylvania Attorney General Kathleen G. Kane should be held in contempt for firing a lawyer who had testified against her before a grand jury.

In an order issued late Thursday, Judge William R. Carpenter rescheduled Monday's hearing at the request of Kane's lawyers and special prosecutor Thomas Carluccio.

The hearing was to be held before a three-judge panel to review the circumstances surrounding Kane's decision to oust James Barker, a former chief deputy attorney general.

Rather than having a hearing with witnesses, Carpenter ordered lawyers in the case to appear before him and the other judges to debate Kane's contention that the contempt proceeding should be stopped.

Barker was among several top aides to Kane who testified last year in a separate leak investigation. As The Inquirer revealed in March, three weeks before Kane fired Barker, he disagreed with his boss in key testimony before a grand jury investigating whether Kane unlawfully released confidential information to the Philadelphia Daily News.

As a witness before the panel, Barker was covered by a broad protective order Carpenter issued in the leak case, prohibiting retaliation against witnesses. After hearing testimony from witnesses that included many of Kane's aides, the grand jury this year recommended that Kane be charged with crimes including perjury and obstruction.

That investigation has since been turned over to Montgomery County District Attorney Risa Vetri Ferman, who is weighing whether to charge Kane.

Kane has admitted releasing information to the Daily News, but has said that she did so lawfully and that the release was not a "leak."

And she has maintained that she fired Barker this month for good reason, not as payback.

Initially, she said she did so as part of a restructuring of her office's criminal division. She later said Barker was fired because he had failed to stop grand jury leaks. She provided no details.

In an interview, Barker, who was the office's supervisor of grand juries, has said he believes his ouster was a direct result of his testimony.

If Kane is found to have violated the protective order, she could be held in contempt of court, which could result in fines and jail time.

Carpenter, in his order Thursday, did not set a new date for the evidentiary hearing.

Lawyers Gerald L. Shargel and Amil M. Minora contend that Kane did not violate the protective order when she fired Barker, who was an at-will employee.

The lawyers said a hearing could be "professionally embarrassing" for Barker, since it would require them to disclose the specific reasons for his termination.

Shargel and Minora also argued that the case was not ready for a hearing because no discovery had been turned over; that the protective order in the leak case had expired and was no longer in effect when Barker was terminated; and that there was no precedent for a three-judge panel to oversee the contempt proceeding.

They also said there "was no motive for Attorney General Kane to retaliate against Barker." In fact, they said, he had been a critic of the protective order that forms the basis for the review of his firing. The lawyers made no mention of his grand jury testimony contradicting Kane.

The lawyers also contended that both Carluccio and Carpenter, who were involved in the leak case against Kane, should recuse themselves from any decision-making on Barker's firing.

Neither Carluccio nor Carpenter could be reached for comment.