Long-delayed issues face state Supreme Court

By Peter Vaira

The Pennsylvania Supreme Court, with three new members, must now address several issues that are crucial for the administration of the criminal justice system, issues that required a fully staffed court to resolve.

First, the court must deal with the compromise of the court system resulting from a scandal known as "porngate." This involves commonwealth attorneys sending emails to court members that contain locker-room-style photos of women in degrading sexual acts or blatant ethnic or racial slurs. Here is the most serious implication of this scandal: The ex parte communications were sent by prosecutors to trial judges and grand jury judges whom they appear before.

Although the Supreme Court has been dealing with one of its own members in this scandal, it still must address this major compromise of its lower court judges. The practices exposed in porngate are not a passing cabal of guys deciding, over beers, which judges would be amused by these tasteless emails. This illicit activity continued for several years. It was a well-thought-out plan to compromise trial and grand jury judges.

Any good prosecutor or defense counsel can complete the lines of this picture and correctly conclude that there were many more confidential communications between commonwealth attorneys and judges. These are ex parte communications, which could be cause for the judges to recuse themselves from hearing matters involving those attorneys.

These compromising situations need to be investigated by a special counsel appointed by the Supreme Court to determine how long this activity continued, who was responsible, what supervisors should have known it was going on, what judges were involved, and what cases were possibly affected. This should be dealt with immediately.

Second, the Supreme Court must undertake a review of the Pennsylvania grand jury statute. The state Senate Judiciary Committee will reportedly hold hearings on amending the statute. But the high court, as part of its rule-making power and its judicial-oversight function, should have a role this project. Here are a few of the amendments and changes needed:

The statute is not being applied as it was intended. Many grand jury supervising judges are not living up to their role as watchdogs of the relationship between the prosecutor and the grand jury. The role of the commonwealth attorney is not defined, which leads to instances of abuse of the process, either through neglect, lack of training, or purposeful evasion of the rules.

Supervising judges do not usually publish their grand jury orders, so there is no published body of case law regarding the rights of witnesses or the conduct of attorneys representing witnesses. The hearing process for determining when a grand jury witness can assert the Fifth Amendment is not clear and varies from one grand jury to the next. There exists a practice of swearing attorneys for a grand jury witness to secrecy, which is impractical, serves no good purpose, and severely limits an attorney's duty to conduct investigations on behalf of a client. Similarly, swearing a grand jury witness to secrecy is an artificial restriction of the person's freedom of speech. No similar secrecy provisions exist in federal law, and federal prosecutors turn out good results without them.

There is no required training for grand jury judges as in the federal system, and many judges have complained of a need for statewide training. There is also no grand jury manual of best practices, and some of the blame for this rests with the Attorney General's Office. This has been an independent elected office since 1980, but no attorney general has produced statewide guidance in this area. Although the federal grand jury system is not a monument of civil rights, there is a solid body of law regarding its procedures that is well-known and administered by the courts. Pennsylvania needs such printed guidance, updated regularly, and the Supreme Court must take an active role in this effort.

The Supreme Court has been shorthanded for several years, forcing it to delay the resolution of pressing administrative and oversight issues. Now is the time to take on these compelling challenges.

Peter Vaira, who practices law in Philadelphia, was a U.S. attorney in both the Carter and Reagan administrations. p.vaira@gpeff.com