In former Pennsylvania Attorney General Kathleen G. Kane's epic battle with former prosecutor Frank Fina — a war that ultimately led to her criminal conviction — Kane suggested that Fina and his closest aides were racially biased, had botched a corruption investigation, and even circulated child pornography.
Fina and others who were subjected to Kane's verbal attacks sued. In a new ruling in the case, a federal judge picked and chose among the blows landed by Kane, saying she has immunity from being sued for some remarks but must stand trial for others.
U.S. District Judge Harvey Bartle III did so after previously tossing out the entire lawsuit brought by Fina and four other former state officials. An appeals court said Bartle got the law wrong and ordered him to review the case.
Peter Scuderi, a lawyer for former state prosecutor E. Marc Costanzo, another plaintiff in the case, said Wednesday that he was buoyed by the ruling.
"I'm dying to depose Kathleen Kane, and I'm getting closer," Scuderi said. "She is not going to be able to avoid me."
In his opinion, released late last week, Bartle ruled once more that Kane cannot be sued for claiming that a Fina-led investigation of corruption among state legislators had been marred by racial targeting. Fina has vigorously denied this charge, which also was rejected by a county judge presiding over criminal cases stemming from the investigation.
Even if Kane had defamed Fina, the judge ruled, her allegation of racism was legally permitted free speech so long as his job was not threatened. By the time of Kane's attack, Fina was working for the Philadelphia District Attorney's Office and was beyond Kane's reach.
The judge acknowledged that two other men suing Kane — former state prosecutor Richard Sheetz and former investigative agent Randy Feathers — lost their government positions after Kane publicly linked them to pornographic emails exchanged among officials in her office.
In the fallout from Kane's attack, Sheetz was forced out as a prosecutor in Lancaster County and Feathers had to step down from the state parole board. But Bartle ruled that Kane could not be sued over their exits because she was not their employer.
The suit also noted that at one point Kane on CNN suggested that the improper email exchanges had included child pornography — in an interview that CNN illustrated with photos of Fina and others. Kane's staff almost immediately retracted her statement. The judge tossed out this part of the suit, saying that no further harm came to the men as the result of the broadcast.
On the other hand, the judge ruled that a jury should hear Fina's contention that Kane's proxies made overt threats on several occasions.
The judge noted that Fina alleges that one top aide to Kane threatened at one point that "if Fina did not stop criticizing, Kane would release the private emails."
Bartle also noted that Fina and Costanzo say they were threatened by other Kane staffers while they were in an elevator on their way to testify to a grand jury investigating the illegal leak of grand jury material.
"The threats crossed the line from protected First Amendment speech by Kane to speech threatening harm," Bartle said.
Kane and Fina could not be reached for comment. Kane's lawyers did not return calls. The Attorney General's Office had no immediate comment.
The grand jury investigation prompted Kane's arrest on charges of illegally providing investigative material to a newspaper in an attempt embarrass Fina, with whom she had been feuding. A jury found Kane guilty of leaking the material to suggest that Fina had not aggressively pursued a corruption case involving a Philadelphia civil rights leader who had been receiving state grants.
In 2016, Kane quit office midterm after she was convicted in the leak. She was sentenced to serve at least 10 months in jail but has been free pending the result of her appeal.
As for the pornography, an investigation later determined that more than 350 staffers in the Attorney General's Office had exchanged such emails and that none of the officials singled out by Kane had been prolific senders of the material. Noonan and Costanzo did not send a single email, the inquiry found.