Fallout from Porngate leads to cases being appealed, claiming racial, gender, and ethnic bias

Mallissa Weaver knew she faced long odds when in 2008 she sought to convince the Pennsylvania Supreme Court that unrelenting sexual harassment by her former boss was so egregious that the justices should overturn a state law that barred her from suing for discrimination.

Much as she expected, she lost. She left her job at a small financial planning office in rural Snyder County and resolved to put the experience behind her.

But as the statewide Porngate scandal continues to widen, Weaver is finding it more difficult to remain at peace with the outcome of her case.

"It's so frustrating to think about," Weaver, 48, said in a recent interview from her home in Kreamer, some 50 miles north of Harrisburg. "There I was complaining about degrading sexual treatment from my boss. Now, I found out that the judges were making the same types of jokes about women while they were deciding my case. How am I supposed to believe I got a fair shake?"

She's not the only one asking that question.

One Supreme Court justice that ruled against Weaver in 2008 - Seamus McCaffery - has already resigned.

Another - Justice J. Michael Eakin - was suspended last month and faces a trial before state judicial authorities this year that could lead to his removal from the bench.

But lost amid the growing list of Porngate's political casualties, are stories like Weaver's - tales of individuals who now feel they have reason to question whether they received justice in their own brushes with Pennsylvania's legal system.

Since late last year, lawyers across the state have quietly seized upon the pornographic, sexist, and racially offensive emails exchanged by a small circle of judges, prosecutors, and law enforcement officials to ask courts to reevaluate decisions ranging from criminal convictions to civil judgments and even death sentences.

They argue that the insensitive correspondence - many of which contain jokes about rape; photos mocking African Americans, Hispanics, and other minorities; and insulting comments about gays, the obese, and the disabled - expose hidden biases and an inappropriate chumminess between the judges and prosecutors who already wield great power over the state's system of justice.

"It is important that any case be judged by someone who is fair, impartial, and sensitive to the issues of abuse, racial discrimination, and to prolonged exposure to trauma," said Robert Dunham, of the Washington-based Death Penalty Information Center. "Given the insensitivity reflected in those emails, it's not surprising that lawyers would be raising challenges."

Eakin himself responded broadly to those claims in a hearing last month before a judicial review court.

He apologized and said he did not open half of the emails he received, but he maintained the "locker-room humor" on display had no bearing on how he ruled on cases.

"It's not criminal, it has nothing to do with my performance on the job," he told the state Court of Judicial Discipline. "There is no suggestion or inference that I had manipulated cases."

Reviews by the Supreme Court, the Attorney General's Office, and the state Judicial Conduct Board have found no emails in which individual cases were discussed.

Still, defense lawyers have challenged cases across the state:

In Philadelphia, lawyers for Griffin Campbell, the demolition contractor sentenced Friday to 15 to 30 years in prison for his role in the deadly 2013 Center City building collapse, have pointed to crude racial jokes contained in many of the emails of the prosecutor who oversaw the grand jury investigation. They argued the messages raise questions over whether his was a "racially selective prosecution."

In Harrisburg, three African American women from Philadelphia have asked the Supreme Court to reconsider a 1997 decision upholding their convictions on contempt of court, saying Eakin's emails now "raise substantial questions about the propriety of his participation in cases such as this one."

And in Cumberland County, death-row inmate Antyane Robinson is seeking a Supreme Court rehearing, saying the email traffic between Eakin, who wrote an opinion denying his earlier appeal, and the trial prosecutor in his case suggests an inappropriately friendly relationship and a potential bias toward the government case that earned Robinson a death sentence for the 1997 murder of a romantic rival.

The emails, Robinson's Luzerne County lawyer Enid Harris wrote in a filing last month, "indicate an utter lack of judicial sensibility and impartiality necessary for Eakin to have provided a fair review."

Whether any of those arguments will succeed remains to be seen.

Prosecutors in all three cases have dismissed the idea that any prejudice the emails may expose should warrant tossing out judgments settled years ago.

The larger concern, legal experts say, is not that prosecutors or judges allowed their legal reasoning to be overtly guided by the sophomoric attitudes on display in their email in-boxes.

Rather, the more insidious threat, said Nicholas Cafardi, a Duquesne University law professor, is the doubt their correspondence may have planted in the minds of ordinary citizens with business before the court.

Thirteen years ago, Cafardi led a panel of experts appointed by the state Supreme Court in an assessment of racial and gender bias in the state's court system and produced a stunning report cataloging dozens of examples of prejudice - both subtle and overt.

More than a decade since that exhaustive review, Porngate's revelations have sat uncomfortably with Cafardi.

"The only credibility our judicial system has is its impartiality," he said. "Judges who make sexist or racist remarks or even enjoy being told racist or sexist jokes convey the impression that they're not impartial. It's not enough to say that they didn't mean ill. The damage to the system has already been done."

For Mallissa Weaver, the woman from Snyder County who had appealed her case to the Supreme Court, the scandal has left a lingering sourness about the justice system in general.

She sued her former boss at a small financial planning firm in 2004, alleging his continued sexual harassment had driven her from her part-time job as an office manager.

As she told it, he constantly found reasons to rub and touch her. He made inappropriate comments about her clothing and appearance. He offered her money to sleep with him, and once requested she accompany him on a business trip "for entertainment purposes."

"What I put up with has haunted me since that day," she said in a recent interview.

Her case landed before the Supreme Court in 2008, after lower courts split on whether she should be allowed to sue at all.

At issue was a wrinkle in the state law that protected employers with fewer than four employees from discrimination lawsuits.

State lawmakers had created the loophole to protect very small businesses, like the one at which Weaver worked, from the threat of potentially crushing litigation.

But Weaver argued that the law left her and others like her with no recourse and should be overturned.

In a 5-2 decision, the Supreme Court sided against her, finding that the state legislature had a clear reason for writing the law the way it had. To simply overturn it, Justice Max Baer wrote for the majority, would overstep the justices' authority.

Weaver's arguments won some support from Justices Debra Todd and now-retired Chief Justice Ronald Castille, who wrote in a dissent that "the public policy of our Commonwealth simply does not tolerate invidious gender discrimination."

Weaver has come to understand the reasoning behind her loss, even if she doesn't agree with it.

What galls her, she said, was discovering this year that even while weighing the significance of her claims, two of the justices that sided against her - Eakin and McCaffery - were receiving emails with lewd and misogynistic jokes about women.

Between March 4, 2008 - the day Weaver's case came before the court - and July 20, 2009 - the date the majority's opinion was released, Eakin received 14 pornographic or insensitive emails sent to his private account.

One contained a photo of an obese naked woman on all fours wearing a pig snout, ears, and tail. Another had several photos of an African American woman with unusually large breasts.

Well after Weaver's case was decided, Eakin joked in an email to a friend about bringing two of his female aides on a planned golf outing to Myrtle Beach, S.C., to sleep with them.

Meanwhile, McCaffery, was sending and receiving emails with pornographic images to a separate group of friends, lawyers, and law enforcement personnel. One featured a photo shot up a woman's skirt at a rock concert under the subject line: "Why front row concert tickets are so expensive." Others contained jokes about the smell of female genitalia.

"You have to wonder what mentality these guys had when they were weighing my arguments," Weaver said. "Were they looking at what happened to me and thinking, 'What's the big deal?' "

jroebuck@phillynews.com

215-854-2608@jeremyrroebuck

Staff writer Craig R. McCoy contributed to this report.