With the stakes escalating for the Pennsylvania Supreme Court in the Porngate scandal, a judicial tribunal has quietly brought in prominent Philadelphia lawyer Richard A. Sprague to mediate a deal that could forestall a public trial for Justice J. Michael Eakin.
The Court of Judicial Discipline confirmed Sprague's new role on Friday.
In December, the disciplinary panel suspended Eakin while he awaits trial on ethics charges for his exchange of salacious, misogynistic, and racially offensive emails.
The burgeoning scandal first reached the Supreme Court in 2014, when Justice Seamus P. McCaffery suddenly retired amid allegations he had exchanged hundreds of X-rated emails on state computers.
It engulfed Eakin next, when state Attorney General Kathleen G. Kane last fall made public a series of problematic emails he had sent or received. Noting that past reviews had cleared the justice, she accused the high court and judicial oversight officials of covering up his misbehavior.
The Inquirer reported last month that Justices Max Baer and Kevin Dougherty also received a handful of emails that officials have deemed offensive. At a Jan. 21 hearing, Eakin's lawyer threatened to call Baer and Dougherty as witnesses in the forthcoming trial.
Shortly after that hearing, the court said, it learned that "there may be opportunity for the parties to amicably resolve some of the presently contested issues." The panel then asked Sprague to step in with that goal in mind.
His role was not publicly disclosed until The Inquirer asked about the matter on Friday.
Beyond asking Sprague to take on the unpaid role, the court said it would have no involvement in mediating the Eakin case.
"There is no contact with Mr. Sprague," the court said in a five-sentence statement.
Superior Court Judge Jack A. Panella, who heads the three-judge tribunal handling Eakin's case, could not be reached for comment.
Sprague, 90, long one of Pennsylvania's most respected and feared lawyers, declined to comment in an email to The Inquirer. Sprague, who was president judge of the judicial tribunal about a decade ago, served briefly in 2014 as Attorney General Kane's lawyer.
When McCaffery stepped down from the court two years ago, he did so as part of a deal that was heavily criticized. Under an arrangement secretly brokered with the Supreme Court and judicial ethics officials, McCaffery agreed to retire, and ethics officials dropped their investigation of him. That removed a potential threat to his $134,000 annual pension.
The disclosure of Sprague's new role also prompted criticism Friday.
Bruce Ledewitz, a law professor at Duquesne University and expert on the state Supreme Court, said he saw a role for mediators in labor disputes or divorces - but not in cases where judges stand accused of wrongdoing.
He compared the tribunal's action to a judge in a criminal case asking someone to help broker a deal.
"Imagine if a guy is on trial for murder and you bring in a mediator," Ledewitz said.
Geoffrey Hazard, a legal-ethics expert and emeritus law professor at the University of Pennsylvania, said the judicial tribunal seemed a little lost.
"They must be in deep doo-doo," he said of the panel. "They're in complete confusion."
Bruce Antkowiak, a professor of law at St. Vincent's College in Western Pennsylvania, praised Sprague's legal acumen, but said, "This pretty much is unprecedented."
He said lawyers for both sides of the Eakin case had apparently recognized that a "full hearing would be damaging to all parties."
Lynn A. Marks, executive director of the reform group Pennsylvanians for Modern Courts, said she viewed the hiring of Sprague as a "bad idea." "The public is entitled to hear the facts and the arguments discused openly," Marks said. ". . .Public confidence in the integrity of the courts will not be strengthened by a priate deal."
In the last Eakin hearing, on Jan. 21, his lead lawyer, William C. Costopoulos, said Eakin should face charges only for the offensive emails he sent - about 20 were identified in the complaint against him - and not the 100 or so he received.
If the court chose to focus on the emails Eakin received, his lawyer said, he might call Justices Baer and Dougherty and question them about messages they received.
As The Inquirer reported last month, Baer received 10 offensive emails and Dougherty received three. Those messages were sent by McCaffery while he was still on the high court.
In its complaint against Eakin, officials said he had received and sent messages that contained nudity or jokes that mocked women, minorities, immigrants, and others. Among the emails sent to Eakin were two that made light of the use of so-called rape drugs.
While the panel said it was looking for a way to "amicably" resolve issues in the Eakin case, it has taken a harsh line toward errant judges in other cases.
Two weeks ago, Panella wrote an opinion finding Michael Sullivan, a former Philadelphia Traffic Court judge, guilty of misconduct for fixing tickets - even though he had been acquitted in a criminal trial.
The ruling means that Sullivan, who resigned from Traffic Court months ago, will lose his judicial pension.