Kane says former associates 'corruptly manufactured' criminal case against her

HARRISBURG - Attorney General Kathleen Kane blames two former state prosecutors for the criminal case against her, saying they "corruptly manufactured" the investigation to cover up the fact that they had viewed pornography on state computers.

Kane's assertion was contained in hundreds of pages of court documents unsealed Wednesday by the state Supreme Court.

In one legal filing from last November, Kane contends that Frank Fina and E. Marc Costanzo, when they worked for her predecessors, "regularly received, possessed and distributed misogynistic, pornographic, racist, obscene and offensive emails on their state-owned computers."

When she discovered the emails, Kane said, the two embarked on a campaign to discredit her by seeking a grand jury investigation into whether she had leaked confidential materials from an old case.

Fina and Costanzo, who now work in the Philadelphia District Attorney's Office, did not respond to requests for comment.

Kane, the state's highest-ranking law enforcement official, was charged earlier this month with perjury, conspiracy, obstruction, and other crimes by Montgomery County District Attorney Risa Vetri Ferman in connection with the leak.

Prosecutors say Kane secretly released grand jury documents to the Philadelphia Daily News about a long-shuttered investigation handled by Fina and Costanzo. The article suggested that Fina and Costanzo had mishandled that 2009 investigation.

Kane released the information, prosecutors said, because she blamed Fina for an Inquirer article last March that revealed she had secretly shut down a sting investigation that captured Philadelphia Democrats accepting cash or jewelry.

Kane, the first Democrat and woman elected to the office, has pleaded not guilty and said she will remain in office despite calls from Gov. Wolf and others that she resign.

In court papers, the judge who set the leak investigation in motion said he did so after Fina, Costanzo and another former state prosecutor said they had been contacted by a Daily News reporter who had confidential grand jury material.

In her filings regarding the porn emails, Kane provided the high court with pages of X-rated images and also described some in graphic detail.

She said they included nude photographs purporting to be of former Alaska Gov. Sarah Palin; photos of women's genitalia; a photo of an African American baby holding a rifle; and photographs purporting to be of President Obama sitting next to parially nude Hillary Clinton.

In many of the examples, Fina and Costanzo were recipients rather than senders of the emails.

The court papers unsealed Wednesday were a fusillade of legal motions in which Kane repeatedly tried and failed to block subpoenas demanding her testimony, undo the protective order for witnesses, and, most broadly, shut down the leak investigation as having no legal foundation.

Kane's arguments were made in a series of filings, some brought by the Attorney General Office and signed by top aides in their official roles, including the chief of her appeals unit at the time. In other cases, the legal theories were advanced by her and her personal lawyers.

Also among the documents unsealed Wednesday were legal rebuttals to Kane by the special prosecutor in the leak case, Thomas Carluccio. In one from last November, Carluccio called Kane's assertions about the emails an attempt to "divert attention" away from whether she leaked confidential documents.

Carluccio said the diversion represented "an ongoing, strategic effort" by Kane to avoid testifying before the grand jury.

He noted that she had been subpoenaed three times to appear before finally doing so. The first time, she rescheduled once to attend a funeral of a slain state police trooper. A second time, she reported suffering a concussion in a car accident on her way to testify.

All the while, the newly unsealed documents reveal, she was peppering the court with motions to halt the investigation.

In making her argument about the pornographic emails, Kane displayed clear anger at Fina and Costanzo, calling them "porn peddlers."

The language in her November 2014 brief is vitriolic, even asserting that Fina and Costanzo had engaged in potentially criminal behavior and should be "investigated and possibly prosecuted."

During the course of the leak investigation, Kane said, Fina and Costanzo misrepresented the pornographic emails as they successfully petitioned a judge for a protective order - one that she said barred her from publicly exposing them.

The men called the emails "personal and private," when in fact they at times contained porn, Kane said.

"Faced with personal and professional ruin, they [Fina and Costanzo] acted in desperation to avoid the public disgrace that they richly deserve," Kane's lawyers wrote.

Of the protective order, they said: "It also allowed Fina and Costanzo to keep their jobs as state prosecutors despite having themselves engaged in an ongoing course of potentially criminal conduct."

In a statement Tuesday, Philadelphia District Attorney Seth Williams said he would review the emails to determine whether to take any action against Fina or Costanzo.

Though Wednesday's documents single out Fina and Costanzo for having traded the X-rated materials, dozens of former and current prosecutors and agents in the office also participated.

Last October, Kane identified only a small group of people who sent or received the material, leading to criticism that she was selectively releasing the information.

The eight men she named as having traded pornographic images and videos all had ties to Fina and then-Gov. Tom Corbett, a Republican who was up for reelection. All eight had since left the Attorney General's office, and many lost their jobs.

At that time, the attorney general stopped short of naming Fina and Costanzo in her public comments. She suggested that she has been barred from doing so because of the protective order in the leak case.

That order, issued by Montgomery County Court Judge William R. Carpenter last summer, prohibited retaliation or intimidation against witnesses, including several of Kane's top staffers.

The Supreme Court unsealed separate documents last week showing that they told Kane late last year that Carpenter's protective order was not intended to restrict the "appropriate disclosure" of information involving the pornographic emails.

They did not define appropriate. But several lawyers familiar with the case have said that while the court was saying Kane was free to release information about the emails, it was also sending a message that the materials should not be used as a weapon to embarrass witnesses or target any person for exposure.

The lawyer said the high court's message was that while Kane was free to name porn recipients, she had to name all of them.

Paradoxically, the Supreme Court's unsealing Wednesday of Kane's court arguments - in which she named only Fina and Costanzo - effectively undid the court's own edict.

acouloumbis@phillynews.com

717-787-5934 @AngelasInk