A Supreme Court justice's indecent inbox

SCROLL THROUGH state Supreme Court Justice J. Michael Eakin's private inbox and it seems as if everyone is in on the joke: judges, state prosecutors, assistant U.S. attorneys, public defenders, private lawyers.

Everyone, of course, except the defendants or victims who could wind up in their courtrooms or offices.

Have you ever heard the joke about the domestic-violence victim who is urged by her doctor to just keep her mouth shut? Or the one about the guy who tased a woman before having sex with her in the park? What about the mother who lamented that Muslim children "blow up so fast, don't they?"

They've all appeared in Eakin's private Yahoo.com inbox that he set up under the nom de guerre "John Smith."

Eakin and his colleagues in the criminal-justice system also received a video from a Harrisburg defense lawyer that shows a white man calling Mexican day workers "beaners" and "animals." And a photoshopped pic of Jerry Sandusky creeping up on "Home Alone"-era Macaulay Culkin.

Then there's the senior prosecutor in the state Attorney General's Office who sent Eakin and two other men a video that portrays blacks who voted for President Obama as welfare recipients and freeloaders.

And don't forget the faux "motivational" posters with naked or scantily clad women and such memorable slogans as "Sexism: Only ugly bitches complain about it" and "Nuns: They have t--s too."

These are among the emails sent or received by Eakin that state Attorney General Kathleen Kane recently turned over to the state Judicial Conduct Board and the State Ethics Commission.

Some are off-color but harmless. Others are raunchy, racist, sexist or just downright stupid.

Kane says they may be in violation of regulations governing the behavior of lawyers and judges in Pennsylvania - and she's not alone.

Last month, the Daily News requested copies of emails sent or received by Eakin on his Yahoo.com email address that had been found on the Attorney General Office's servers.

Kane's office denied the records request and instead handed the emails over to the state ethics agencies. The Daily News subsequently obtained what appear to be some of the emails from a source who requested anonymity.

Kane said her office began to review the Eakin emails more closely after the Daily News requested them, according to a letter she sent last week to the president judge of the Court of Judicial Discipline.

Kane spokesman Chuck Ardo declined to comment this week on specific emails or to confirm that those obtained by the Daily News are among those Kane referenced in her letter.

Defense attorney Gerald Shargel, who is representing Kane in her perjury and obstruction-of-justice case, also declined to comment on the emails.

The emails provide a glimpse of the off-the-record communication among lawyers, judges and others in the Pennsylvania criminal-justice system.

Senior Deputy Attorney General Jeffrey Baxter in 2009 sent Eakin and two other people an email with a video of a black woman lamenting that President Obama wanted to create new jobs.

"New jobs?" she asks. "What, you mean I'm not going to get my government check?"

Around the same time, Baxter emailed Eakin and three other people a video of a man supposedly calling a gay cable channel.

The zingers included slurs about homosexuals being promiscuous and unable to sit through a documentary because they are too busy performing oral sex.

The following year, Eakin emailed Baxter and four other people a joke about a woman who complains to her doctor that her husband "beats me to a pulp" when he comes home drunk. The doctor advises her to swish sweet tea in her mouth and not to swallow until her husband is asleep. The punchline from the doctor: "You see how much keeping your mouth shut helps?"

In 2012, Eakin emailed Baxter and three other people a photo of a pig apparently having sex with a cow, with the caption, "This is how a bacon cheeseburger is made."

A couple of weeks later, Eakin, Baxter and two other people received "motivational posters" in their inboxes.

In addition to the quips about sexism and nuns' breasts, the PowerPoint slide show features a woman deep-throating a beer bottle with the slogan, "True Love: Sometimes you know it the instant you see it across the bar"; a woman passed out on the floor with the slogan, "Alcohol: Thank you, Mr. Daniels. Thank you, Mr. Guinness. Muchos Gracias, Senor Tequila"; and one of a topless woman with the slogan, "Dear Abby: I'm an 18 year old girl from Arkansas and I'm still a virgin. Do you think my brothers are gay?"

That "motivational posters" email was sent by a man named Bill Morgan, to whom Eakin previously had emailed the beaten-woman joke.

In 2010, Eakin emailed a man named Tom Noonan with the subject line, "Why I failed 4th grade." The attached photo shows a teacher saying, "An abstract noun is something you can think of but not touch. Can you give me two examples?" The kid responds: "Your t--s!"

Additionally, Eakin's email address repeatedly appears within a network of law-enforcement officials who received inappropriate emails on their government accounts.

For example, among those who received a 2010 email from defense lawyer Terry McGowan with a video called "Craziest white man ever" were: Dauphin County District Attorney Ed Marsico, his first assistant, a Common Pleas judge, the county's chief public defender, at least four assistant U.S. attorneys, a senior deputy attorney general and a police chief.

The video features a man picking up immigrant day workers under the ruse that he needs help with his deck, then turning them in to U.S. immigration officials. He laughs hysterically as they scatter from his pickup truck.

"That's what I do every couple weeks just to get rid of - ya know, thin out the herd a little bit," the man says. "Make sure they don't overpopulate."

McGowan also sent emails poking fun at Muslims and at Camden high-school students. Eakin has ruled on at least one Supreme Court case involving McGowan, in 2002, records show.

In 2011, after Sandusky was arrested for sexually abusing minors, a lawyer named C. Kent Price sent an image of Macaulay Culkin from "Home Alone," except the burglar sneaking up behind him had been replaced with a smiling Sandusky.

The recipients of that email included Marsico, a first assistant district attorney, a county judge, a senior deputy attorney general, an assistant U.S. attorney and a U.S. Fish and Wildlife Service employee.

"I did not open many of them. I did not consider these emails professional or the humor tasteful nor did I forward or reply to them," Marsico wrote this week in an email to the Daily News. "At some point I asked the person who was sending them to stop."

Annmarie Kaiser, a top aide to Tom Corbett when he served as attorney general and governor, appears to have received the Camden high-school email. She did not respond to a request for comment.

Other recipients of some of the emails include a deputy clerk for a federal judge, a lawyer with the Pennsylvania Gaming Control Board and a second Common Pleas judge in Dauphin County.

Three legal experts in Philadelphia said the emails could pose problems for the senders and recipients - particularly those involving lawyers and judges - because of the positions they hold and because the emails are on government computers and servers.

"The relationship between prosecutor and judge should be arm's length. If not, the other side should know about it," said Peter Vaira, a former U.S. attorney from Philadelphia.

"This is naughty stuff you wouldn't send to strangers," Vaira said, adding that exchanging lewd or pornographic material also could be used as future leverage over a judge.

Eakin and Baxter seem particularly close. Baxter emailed Eakin in 2009 telling him that he couldn't make it to his office party. He jokingly told the justice to slap two male colleagues on their butts and wish them a Merry Christmas.

"And, well, Janey's too and let me know how it was. Maybe next year we won't have the conflict and I can slap hers myself. Anyway, Merry Christmas!" Baxter wrote, signing the email "Bax."

Baxter did not respond to requests for comment.

Lawrence Fox, a Philadelphia lawyer and supervising lawyer for the Ethics Bureau at Yale Law School, said the emails are troubling.

"If they're having this kind of relationship where they're sharing material that might prove very embarrassing, it reflects a very close relationship in some way," Fox said. "We don't send private jokes to anybody. We send them to our inner circle."

Fox said some of the emails could be in violation of the state's Code of Judicial Conduct. "I think it is a violation," he said. "At a minimum it reflects an appearance of impropriety."

Theodore Simon, a veteran defense lawyer in Philadelphia and past president of the National Association of Criminal Defense Lawyers, warned against drawing conclusions based on a relatively small sample of emails.

"Certainly one should not be unfairly maligned for merely receiving some less-than-memorable email without any proof that it was solicited, actually received, read or resulted in a response," Simon said. "This by no means excuses repeated and inappropriate communications."

Here's where it gets murky.

Ardo, Kane's spokesman, said he believes that the emails Kane recently turned over to state agencies are the same ones she provided to the state Supreme Court last year after Supreme Court Justice Seamus McCaffery was ensnared in the "Porngate" scandal that is still unfolding.

McCaffery retired after it was disclosed that he had sent and received sexually explicit material, which was discovered during Kane's investigation of how Corbett, as attorney general, had handled the Sandusky case.

Once the McCaffery emails surfaced, the Supreme Court asked Pittsburgh lawyer Robert Byer to review all emails involving Supreme Court justices between 2008 and 2012.

Byer, a former state appeals-court judge, wrote in his December 2014 report that Eakin had received only one message containing "offensive sexual content" during that time. Byer said the rest of the emails Eakin sent or received were "unremarkable."

Former state Supreme Court Chief Justice Ronald Castille said this week that he had instructed Byer to flag emails that were pornographic, but also any that were "off-color" or "anything that would cause embarrassment if read in the paper."

It is unclear if Byer missed some emails sent or received by Eakin, didn't consider them problematic or did not receive all of the Eakin emails to review. Byer was recovering from surgery and unavailable for comment this week.

"It's totally bizarre," Castille said. "There are really strange things going on here."

Last week, the Supreme Court hired the law firm of Joseph Del Sole to review the latest batch of emails.

Eakin, a former Cumberland County district attorney, has said he would cooperate with the review but otherwise has declined to comment.

Del Sole, oddly enough, previously represented Kane in her criminal case.

Kane was charged in August with perjury, obstruction of justice and related offenses for allegedly leaking grand-jury information to strike back at Frank Fina, a former state prosecutor who she believed had leaked information about a corruption case she had failed to prosecute after taking office in 2013.

Fina, now working for Philadelphia District Attorney Seth Williams, is a key figure in the Porngate scandal but hasn't publicly commented on the matter. In August, the Supreme Court released hundreds of pages of records connected to Kane's criminal case, including pornographic emails sent and received by Fina when he was a state prosecutor.

Kane, who has alleged that Fina and others "corruptly manufactured" the criminal case against her in response to her discovery of their porn, has said that more Fina emails are likely to be released.

But that's another story.

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