Revive law on special prosecutors

By John M. Morganelli

There is no question that Attorney General Kathleen Kane has made mistakes. Whether those mistakes amount to prosecutable crimes will initially be determined by Montgomery County District Attorney Risa Ferman and perhaps ultimately by a judge or jury.

If Kane is found guilty of crimes after receiving due process, so be it. But with that said, from the outset there have been legitimate questions raised about the process that has led to the appointment of a special prosecutor and now, presumably, a presentment by a sitting grand jury in Norristown.

Kane's attorney, Lanny Davis, recently cited the doctrine of separation of powers as prohibiting a judge from acting in an executive fashion to investigate another branch of government. Davis has also hinted that the appointment of Thomas Carluccio as a special prosecutor is illegal under the state constitution. Ultimately, that issue may also be litigated.

In the meantime, lawyers in Pennsylvania, including many prosecutors and legal scholars, are also privately questioning the legal basis that has led us to this point. The questions are numerous: Who initiated the request for the attorney general to be investigated? Were petitions filed? Why are all of the filings sealed? Why is Kane allegedly gagged from speaking about anything, including information that could aid in her defense?

The public has an absolute right to know the answer to these questions when the elected attorney general is on the ropes.

Former Chief Justice Ronald Castille has stated that the state Supreme Court has the power to appoint a special prosecutor to look into grand jury leaks. Admittedly, that practice has not been unusual. What is unusual in this case, however, is the appointment of a special prosecutor by the judicial branch of government to investigate the attorney general, an elected member of the executive branch of state government.

Normally, an investigation into grand jury leaks would result in a report with recommendations. In this case, however, the leaks out of the current grand jury suggest that a presentment, rather than a report, has been issued. A presentment is more compelling because it is in the nature of a probable-cause determination, with a direct recommendation to a prosecutor to charge. As such, it is much more significant than a grand jury report.

All of these issues raise the question of whether Pennsylvania should revisit the enactment of an independent-counsel statute, which had existed from 1998 to 2003. Pennsylvania's law, known as the Independent Counsel Authorization Act, allowed for the establishment of a special independent prosecutor's panel composed of various judges of the commonwealth, chosen by lot. Authority was placed in the commonwealth's general counsel to appoint a special investigator under certain circumstances.

In addition, the act specifically provided for a transparent and legislatively approved process to investigate allegations against a state attorney general. It spelled out the full authority of an independent counsel and provided legislative oversight.

Unfortunately, the law had a five-year sunset provision. Because there was no further legislative action, it expired in 2003.

In light of the current matter involving Kane, the Pennsylvania legislature should revisit this statute. The former act was a bit cumbersome and probably should be rewritten. Still, it achieved its intended purpose: establishing a transparent, orderly, and legislatively legitimate method to investigate allegations of wrongdoing by an attorney general.

The enactment of an independent-counsel statute would go a long way in assuring a fair and open process in the future, and it would eliminate any speculation that powerful people acting in secret behind closed doors can bring down an independent, elected attorney general.