KANE'S FUMBLING DISTRACTS FROM GENUINE MISCONDUCT

Molly Ivins once wrote of President Bill Clinton: "I have wasted more time and space defending Clinton than I care to think about. If left to my own devices, I'd spend all my time pointing out that he's weaker than bus-station chili. But the man is so constantly subjected to such hideous and unfair abuse that I wind up standing up for him on the general principle that some fairness should be applied."

That's pretty much how we feel about Attorney General Kathleen Kane at this point.

We can't explain why she claimed to have an affidavit she didn't have. We can't defend it. But the fact remains that Agent Kevin Wevodau did claim in a unsworn memo that Agent Claude Thomas indicated the Philadelphia sting was tainted by racial targeting.

Regardless of what Thomas actually said, there's no denying that race was indeed a factor. Only one of the primary targets of the sting is white, and he has a very strong case that he was targeted because he's criticized the Attorney General's legislative corruption probe.

Certainly, Kane appears to have made a buffoon of herself. But that doesn't automatically mean the sting former Deputy AG Frank Fina's conducted was above-board and by the book. Three other Attorneys General refused to pull the trigger on the case. With no solid prospect of an actual prosecution, Fina rushed to cut a deal with informant Tyron Ali before Kane even was sworn into office.

The filing of charges by the Philadelphia District Attorney's Office, where Fina now is employed, is far from proof that Kane was wrong not to pursue the charges. So far, D.A. Seth Williams' efforts have yielded a single conviction of conflict of interest, with similar plea bargains likely for the other defendants. In glossing over Ali's credibility problems, Fina's defenders have made much of the "smoking gun" recordings of defendants accepting gifts. What's been ignored is that, while a prosecutor can throw any evidence he chooses before an investigative grand jury (with no objection from a defense attorney), no judge would admit those recordings in a trial without sworn testimony of identification. And the only one who can provide that testimony is Tyron Ali.

Furthermore, Ali handed out "sting" cash to at least one barmaid with whom he was friendly, for her Carribean vacation. That fact alone is solid evidence of how shoddily-supervised the operation was - evidence the grand jury certainly never got to hear.

Even Kane's harshest critics are aware Williams' crusade has noting to do with justice for small-time politicos and their petty grasping.  Williams' feud with Kane stems from her exposure of Fina's appallingly shoddy work in the Jerry Sandusky investigation and his dissemination of smutty and offensive emails.

Kane has fired staffers implicated in the email scandal. Former OAG employees who've been exposed - Department of Environmental Protection Secretary E. Christopher Abruzzo, DEP Counsel Glenn Parno, Board of Probation and Parole member Randy Feathers, Lancaster County Assistant DA Rick Sheetz, - have been deemed unfit for public service. Supreme Courth Justice Seamus McCaffery retired in disgrace.  Chris Carusone, who also served in Gov. Tom Corbett's cabinet, was forced to resign from his private-sector law firm. 

Only Williams, who continues to employ Fina and two other prosecutors implicated - Patrick Blessington and Marc Costanzo - is content to allow men with spectacularly poor judgement to decide the fate of others. 

DO AS I SAY, NOT AS I LEAK

Pennsylvania Supreme Court Chief Justice Ron Castille was troubled enough by Attorney General Kathleen Kane leaking information from a grand jury investigating the former Philadelphia NAACP leader Whyatt Mondesire that he authorized a special grand jury investigation into the matter.

Yet, it appears that Castille has leaked secret information about this new grand jury examining Kane:

“Chief Justice Ronald D. Castille told reporters that some of the documents in question constituted grand jury material, which would be confidential…. Questioned by reporters at the annual Pennsylvania Society gathering in New York, Castille countered that at least one of the documents that appeared in the Daily News story should have been confidential. ‘It was a detective's statement,’ said Castille, speaking to two reporters at the Metropolitan Club.” (Philadelphia Inquirer 12/14/14)

So, because of grand jury secrecy rules, there is a detective’s statement that Kane should not have provided the Daily News. If she is precluded from revealing it because it is secret, then how can Castille discuss it?

Furthermore, would not Castille’s revelation that the detective statement is at the center of the new grand jury investigation be a further violation of grand jury secrecy rules?

The law is incredibly clear that Castille is violating the law because discussing anything in a grand jury is verboten:

“All evidence, including exhibits and all testimony presented to the grand jury, is subject to grand jury secrecy, and no person may disclose any matter occurring before the grand jury, except…Defendant in a Criminal Case…[and] A grand jury witness may disclose his or her testimony”. (PA Code Rule 556.10)

We suppose that Castille could say that he is not violating the secrecy rules because he wasn’t sworn in as part of the Mondesire grand jury proceedings.  Fair enough, but that in turn raises further questions.

First, how much different would this excuse be than Kane’s for leaking information from the Mondesire grand jury:

“Reading prepared remarks, [Kane] acknowledged that her office had released information, but said it did so ‘in a way that did not violate statutory or case law regarding grand jury secrecy.’….’Nothing she said suggested in any way that she committed a crime - because she didn't commit a crime. She didn't cross any ethical line," said Gerald Shargel, a New York City criminal defense lawyer.” (Philadelphia Inquirer 11/19/14)

It sounds like Shargel’s interpretation of the law is based on his reading of Title 42 which seems to give Kane wiggle room from Rule 556.10 given that she was not part of the Mondesire grand jury, and consequently, not sworn into secrecy:

“a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court. All such persons shall be sworn to secrecy, and shall be in contempt of court if they reveal any information which they are sworn to keep secret.” (Title 42 Subchapter D Section 4549)

If this interpretation also applies to Castille openly discussing that the detective’s statement was at the center of the grand jury investigating Kane, then who leaked to him the information that the detective’s statement was at the center of its investigation?

Who has the authority over the Chief Justice to authorize a grand jury to investigate the leaks from a grand jury that is investigating leaks from a grand jury?

"PEOPLE SHOULD BE JUDGED BY THE STANDARDS BY WHICH THEY JUDGED OTHERS"

"There's a 'significant difference' in having a campaign adviser at the Capitol and paying a campaign operative with state money." -- Widener University political science professor J. Wesley Leckrone.

In an attempt to demonstrate that Tom Corbett's taxpayer-funded political activity isn't as bad as the taxpayer-funded political activity he prosecuted as a campaign stunt, Tribune-Review reporter Brad Bumsted includes the above nugget of wisdom in today's account of political meetings held in the Governor's Office. 

The problem with this feeble defense is that not everyone Corbett sent to prison was guilty of "paying a campaign operative with state money."  Staff who went to prison were convicted of nothing more than engaging in political activity while on state time - a crime Corbett and his operatives committed again and again, even as they prosecuted political adversaries for the same behavior.

Political meetings in the Governor's Office are hardly the most blatant example: 

• While Attorney General Corbett put campaign manager Brian Nutt on the state payroll as "chief of staff," and two other campaign operatives, Joe Murzyn and Becky Myers, on the payroll as "executive assistants."  
• During his re-election campaign in 2008, Corbett's state-paid Attorney General staffers exchanged hundreds of phone calls with campaign staff, on state time and using state phones.
• Corbett repeatedly solicited campaign contributions from ostensible targets of his own criminal investigations.
• State employees distributed campaign materials while on official, taxpayer-funded Attorney General assignment.
• Corbett used his government position to protect his political allies over and over again.

Remember, these are just the offenses we know about. None of Corbett's staffers were dragged before a grand jury and threatened with prosecution if they didn't cough up damaging testimony about their boss and co-workers. No one went digging for incriminating information in their emails  - not even the guy whose job it was to determine if political considerations affected prosecutions. This is just the wrongdoing that accidentally spilled out, even though no one actively was looking for it.

"AN INEXCUSABLE LACK OF URGENCY"

Deep Throat: You let Haldeman slip away. 

Bob Woodward: Yes. 

Deep Throat: You've done worse than let Haldeman slip away: you've got people feeling sorry for him. I didn't think that was possible. In a conspiracy like this, you build from the outer edges and go step by step. If you shoot too high and miss, everybody feels more secure. You've put the investigation back months. 

Bob Woodward: Yes, we know that. And if we're wrong, we're resigning. Were we wrong?

-- All The President's Men, 1976

By any measure, Attorney General Kathleen Kane's review of Tom Corbett's investigation of serial child rapist Jerry Sandusky revealed unconscionable neglect, incompetence and sloppiness. Her central conclusion, "The facts show an inexcusable lack of urgency in charging and stopping a serial sexual predator," is undisputed. But because Kane couldn't prove that Corbett broke any laws or expressly told anyone to slow-walk the investigation, Kane's report is being hailed as a victory for Corbett.

Way to set the bar low, Pennsylvania.

We have never subscribed to - or even understood - the theory that Corbett deliberately stalled the Sandusky investigation for political reasons. What's significant - and tragic - is that the investigation was stalled. That Corbett should get a pass from the public because he didn't intentionally stall it for political reasons is baffling. 

That's not to say that the delay in prosecuting Sandusky is entirely unrelated to politics. The report confirmed what we have long alleged: Corbett's obsession with prosecuting members of the legislature, and assembling those indictments before officially launching his gubernatorial campaign, contributed heavily to the delay. 


Two of the agents on the Sandusky Task Force didn't begin working on the case until early April of 2011 - two full years after Corbett took over the case - because they had been working "almost exclusively" on Bonusgate-related investigations and prosecutions for the previous several years.

According to the report, "Bonusgate appeared to affect investigative assignments, arguably exacerbated an existing shortage of investigative resources, and certainly consumed a considerable portion of the time and attention of [Frank] Fina and other office supervisors ... is impossible to determine how the course of the Sandusky investigation would have been different had it, in its early stages, received the same intense focus as Bonusgate."

That said,  the report seems to raise more questions than it answered.  Kane, initially critical of Corbett's decision to submit the case to the slow-moving grand jury process, concluded that there were, theoretically, advantages to the grand jury process. But Corbett's team failed to avail themselves of those advantages. 

"From the beginning of January through the end of October 2010, for example, the Grand Jury issued no subpoenas for testimony and only one subpoena for records."

To be clear, the only advantages to using the grand jury are subpoena power and the ability to compel testimony under oath.

It's important to remember that - unlike Corbett - Kane did not conduct a criminal investigation and did not have subpoena power or the ability to compel testimony under oath. The review suffers from the lack.

While Kane concedes that Sandusky should have not been arrested based on the testimony of one victim, no one has been able to explain why investigators did not immediately seek a search warrant for Sandusky's home.  Because the search directly led to the identification of more victims, Sandusky could have been arrested almost immediately had the search been conducted in March of 2009, when Corbett assumed the case.

Equally incomprehensible is why investigators waited until January of 2011 to ask Penn State Police Department for copies of any criminal reports relating to Sandusky. In his response to the report, Fina vaguely retorts, "finding the 1998 Penn State University police report was not as simple as walking into the Penn State University Police Department and asking for it." But that is exactly what happened, and no one can explain why it didn't happen sooner.

Sadly, instead of examining Corbett's egregious missteps that left Sandusky free to continue victimizing children for three years, media coverage is focused on partisan bickering between the Kane and Corbett camps.  Reporters at Monday's press conference gasped audibly when Kane pointed out that Sandusky's abuse continued after Corbett took over the case in March 2009. Not only do common sense and all available evidence about the behavior of pedophiles indicate that of course he continued the abuse, Victim 9 testified as much in 2012.  Yet more is being made of Kane's misstatement that neither of the two post-March 2009 cases  were prosecuted than of the fact that Sandusky still was abusing children while Corbett dawdled over the investigation.

In the summer of 2010, Deputy Attorney General Jonelle Eshbach wrote to her bosses: "Does anyone want to answer my questions about why we are stalled since winter?"

Four years later, the answer still is no.

IN THE MEANTIME ....

Attorney General Kathleen Kane has scheduled for Monday the release of a report on her review of Tom Corbett's three-year-long investigation of serial child rapist Jerry Sandusky.

One of the main complaints about the glacial pace of  Corbett's investigation is the near-certainty that Sandusky continued to abuse children even as the investigation crept along.

Given what we know about child molesters, it's nearly impossible that a pedophile in his 60s, whose victims likely number in the hundreds, simply ... stopped. Why would he? How could he? Corbett apologists argue that Sandusky knew he was being investigated, but he'd been investigated before and didn't stop. Many believe he'd lost his coaching job with Penn State over the incident, and still he didn't stop. The fact that he'd escaped without criminal charges may even have emboldened him.

We've always maintained that Sandusky most likely continued to abuse children after Corbett took over the investigation in March of 2009, but doubted that Corbett's OAG would advertise the fact by prosecuting any case involving one of those victims.

Or were we wrong?

At least one Corbett critic - Ray Blehar of NotPSU.com - insists that the abuse of Victim 9 continued at least until July 29, 2009, when Victim 9 turned 16 - four months after Corbett took over the case. Blehar's case is strong, but not conclusive.

The original criminal complaint  involving victims 9 and 10 alleges the crimes took place "on or about January 1997 to December 2008." The grand jury presentment  also suggests Sandusky's abuse of Victim 9 ended in 2008. However, according to a February 21, 2012, Bill of Particulars, the abuse continued until 2009, when the victim was "15/16." The dates change again in the amended Bill of Particulars, filed May 18, 2012, in which the dates of abuse are listed as July 2005 to December of 2008.

A month later, during testimony at Sandusky's trial, Victim 9 testifies that he continued to see Sandusky until he was 15 or 16 - with the witness, prosecutor and defense attorney all seeming to settle on age 16.

As we've said, the question really isn't whether Sandusky continued molesting children while Corbett dawdled over the investigation - he almost certainly did. The question is whether any of those victims had any hope of seeking justice from an Attorney General's office that has so much to hide.

PROSECUTORIAL DISCRETION

What has always shocked us more than Tom Corbett's cynical abuse of the Office of Attorney General for political gain is the insouciance with which the press corps has greeted every instance. 

Jake Sternberger, a contributing writer for Keystone Politics, yesterday shrugged off an investigator's admission that Corbett's obsession with the legislature left the OAG without sufficient resources to investigate child molestation charges against former Penn State football coach Jerry Sandusky:

@CasablancaPA I am familiar, but prosecutors have discretion 2 focus their resources. & resources are always limited. Inherent govt problem.
— Jake Sternberger (@JakeSternberger) June 3, 2014

It’s an inherent government problem when a prosecutor gives a child molestation case short shrift because he’s obsessed with rehabilitating his botched political corruption case in time to launch a gubernatorial campaign.

It’s not abuse of office, it’s just a prosecutor exercising his discretion.

We suppose we should be grateful Sternberger acknowledged the situation at all. A more recent revelation that the OAG used its “discretion” to settle political scores was greeted with virtual silence.

Embattled prosecutor Frank Fina, likely to be a focus of Attorney General Kathleen Kane’s forthcoming report on the Sandusky investigation, took some heat when it was revealed all but one of the secretly-recorded targets of a lengthy  “sting” operation were people of color. But only one news outlet, the Doylestown Intelligencer,  bothered to mention that shortly before being targeted, Rep. John Galloway had  enraged Corbett with public criticism of his legislative corruption investigation.

(Funny how few seem to shrug off Kane's decision not to prosecute that sloppily-executed, possibly racially-targeted sting as "prosecutorial discretion.")

No one from the OAG ever has bothered to explain how the targets of the failed sting were chosen – not that we’ve seen anyone in the media bother to ask -  but some Republican insiders were disappointed that no southeastern Democrats were snared in Corbett’s previous “Bonusgate” and “Computergate” investigations.

Why not exercise some prosecutorial discretion and try to kill two birds with one stone? Giving southeastern Republicans some grist for the mill while at the same time retaliating against an irksome critic? It's just an inherent government problem. 

EXCLUSIVE: BARMAID GOT CASH FOR VACATION FROM ALI DURING "STING"

Confidential Informant Tyron B. Ali, while living a free-spending lifestyle at taxpayer expense in 2010 and 2011, at least once handed a Harrisburg barmaid an envelope containing $400 cash for her Caribbean vacation.

The barmaid declined to speak for the record for fear of losing her job or damaging her establishment's reputation.

Ali spent more than $90,000 in taxpayer funds while working as an informant for then-Chief Deputy Attorney General Frank Fina in 2010 and 2011. The money includes about $22,100 in “payments to suspects.” Attorney General Kathleen Kane, who declined to prosecute the sloppily-executed sting, said $32,600 was unaccounted for.

It's unclear whether the cash Ali gave to the barmaid is among those expenses.

Ali befriended the barmaid during 2010 as he was trying to establish the persona of a high-flying Harrisburg lobbyist. The ruse was part of a sting, supervised by Fina, intended to ensnare legislators and others involved in the state political scene.

During that time, the barmaid was planning a vacation in the Caribbean. Ali told her not to buy a plane ticket, because he would take care of it for her. As the date of her trip approached, Ali still hadn't provided her with a ticket, despite her regular inquiries. About a week before she planned to leave, as she was asking about the ticket, he went to his car and retrieved an envelope, which he handed to her. It contained $400 cash, which he told her to use for her trip.

It was only after the Philadelphia Inquirer broke the story on March 17 that the barmaid realized that the money likely was part of the taxpayer-funded slush fund Ali was using to attempt to bribe legislators.

Were plane tickets to the Caribbean for Ali's barmaid pals among the legitimate expenses Fina approved for the failed sting? Or was this $400 part of the $32,600 that went unaccounted for? Were there other spontaneous acts of generosity benefiting Harrisburg's hospitality workforce? As much as $32,600 worth of spontaneous generosity?

Either Frank Fina approved of Ali handing out cash to his barmaid friends, or Fine had absolutely no idea what Ali was doing with tens of thousands of taxpayer dollars. Which is worse?

A SIMPLE QUESTION

If Chief Deputy Attorney General Frank Fina thought that incoming Attorney General Kathleen Kane wouldn't prosecute the long-dormant "sting" investigation he supervised, why'd he strike a deal with confidential informant Tyron B. Ali after she was elected?

And Fina didn't think she would prosecute, even before she ever learned of the existence of the investigation. Otherwise, why would he turn over files to an FBI agent at the very moment Kane was being sworn in?

He did this, he says, because he was "concerned about a conflict of interest." Fina's previous boss, Linda Kelly - who actually knew about it - had declined to pursue the case.

Fina didn't believe Kane would prosecute. Before she took office. Yet he signed an extraordinary agreement with confidential informant Tyron B. Ali - dismissing all 2,000+ charges of fraud - on November 30, 2012. That's 24 days after Kane, whom he believed would not prosecute, was elected.

An extraordinary deal. Dismissal of more than 2,000 charges of fraud. In exchange for testimony a case that Fina believed would not be pursued. In a case his previous boss had declined to pursue.

It's looking more and more as though the case was, as editorial boards have speculated, "a 'welcome present' designed to blow up in her face."

EXPLAIN THE TARGETING, EXPLAIN THE STING

Did Attorney General Kathleen Kane make the right decision in abandoning a sting that snared Philadelphia officials who accepted unreported gifts?

Did the FBI think she made the right call? Did the U.S. Attorney's Office think so?

Did Dauphin County District Attorney Ed Marsico agree?

Did former Attorney General now-Governor Tom Corbett think she made the right call? What about former Attorney General Bill Ryan?

Did Former Attorney General Linda Kelly's Chief of Staff agree?

And for heaven's sake, what does Philadelphia District Attorney Seth Williams have to say about all this?

Instead of trying to uncover the facts about exactly where this sting went wrong - so perhaps we all could judge for ourselves - journalists covering the story remain mired in the political judgement of some very conflicted sources.

Kane succinctly has listed the reasons she chose not to pursue the sting:

• The extraordinary Cooperation Agreement, signed before she took office, dismissing more than 2,000 fraud charges against the Confidential Informant. "It effectively undermined the CI's credibility and that of the OAG for having agreed to it."
• Lack of corroborating evidence or witnesses to verify the identities of those on the recordings. A prosecutor can't simply waltz into a courtroom, play a recording and allow a jury to decide what it means. The recordings can't be admitted unless someone can verify under oath the identities of the people on the recordings.
• Failure to establish "quid pro quo." One of the more monumentally dim-witted aspects of the sting was the suggestion that black Democrats from Philadelphia were induced through bribes to vote against a Voter ID bill that Democrats had been fighting tooth-and-nail to defeat.
• Lack of reasonable suspicion to support targeting the legislators.
• Possible racial targeting: The OAG Agent who managed the CI "indicated that he was instructed by his supervising OAG Attorney to focus only on members of the General Assembly's Black Caucus and that when he had information of potentially illegal acts by white members of the General Assembly he was specifically told not to pursue it ...Statements about limiting the focus of the investigation to only members of the General Assembly's Black Caucus were also made by the CI to federal law enforcement officials."

No one one disagrees that racial targeting throws the entire investigation into question; the disagreement is whether Kane had reason to believe there was racial targeting. In other words, is Kane lying about the statements she says the investigator and the informant made? No one ever uses the word "lying" when referencing the question of racial targeting, but either they made the statements or they didn't, and someone is lying in either case.

The recordings made during the investigation show that all the targets were people of color, except for one white legislator against whom Corbett had a specific grudge.

"Sources" told the Inquirer financial pitches were made to both Republicans and Democrats. Since there are no black Republican elected officials of note in Philadelphia, that means pitches were made to white Republicans. But there are no white Republicans on the recordings. Why?

The investigator told Fox 29 "No one would, again, ever suggest asking, ordering me to target members of my own race or any race. It just would not happen."

He didn't deny that he was told to target specific officials. Was he told to target certain individuals by name? How did they select the targets? Again, can he explain why are all the targets on the recordings are people of color?

Williams, for his part, is trying to deny the fact and explain it at the same time. He says the reason all the targets are people of color is because those are the people in Ali's "immediate realm." Which is it? Were whites targeted, or were only people of color targeted because they were in Ali's "realm?" (And, honestly, is Philadelphia really that segregated?)

The facts at hand show that Kane was right to drop the sting. The only way to justify continued questioning of her judgement is to show that these aren't the facts. Seth Williams' convoluted "it-isn't-true-but-here's-why-it-is-true" ramblings do not disprove the facts. The investigator denying that he's a racist does not disprove the facts. Corbett and Ryan insisting that they didn't "decide" not to pursue the case (they just ... didn't pursue it) does not disprove the facts.

In fact, Corbett and Ryan declining to say whether they thought Kane made the right decision is evidence that she did, as Corbett never would pass on a chance to attack Kane.

SETH WILLIAMS: UM ... NEVER MIND

"[Attorney General Kathleen] Kane said ... federal law enforcement officials agreed with her that the case was 'flawed and nonprosecutable.' But [Philadelphia District Attorney Seth] Williams and the other sources say the U.S. Attorney's Office in Philadelphia never made such a judgment about the sting during the several months that prosecutors reviewed the case file."  (Philadelphia Inquirer, 4/9/15)

"Feb. 22, 2013: Attorney General Kane's Senior Executive Deputy Attorney General and Special Agent in Charge of the Bureau of Criminal Investigations meet with the U.S. Attorney's Office and the FBI in Philadelphia to determine what, if any, interest they had in adopting the corruption investigation or using the informant in other investigations. Both advised they did not want to adopt the pending corruption case and had no interest in using the informant at that time (p.5, OAG response, Oct. 4, 2013)." (PA Office of Attorney General, 4/10/14)

On January 15, 2013, at the same time Kane was taking the oath of office, Chief Deputy Attorney General Frank Fina directed an OAG agent to deliver to an FBI agent a a thumb drive of recordings, made during the course of a sting investigation into public corruption.  Kane did not direct him to do so, and Kane was not aware that he did so. In fact, Kane first would learn about the investigation  "in a cursory manner"  two days later from Fina.

A little more than a month after that, two of Kane's top staffers met with the U.S. Attorney's Office and the FBI. The feds said they had no interest in pursuing the case.

Now, how they came to that conclusion without ever making a "judgement" about the case is not for us to say.  Williams may have some method of determining whether or not to pursue a case without making a judgement about it, but what do we know? We're not lawyers.

Williams characterizes the feds declining to take the case as Kane "aski[ng] for the case back." We're not sure why someone would have to ask for something back from someone who never took it in the first place.

Furthermore, "federal law enforcement officials with knowledge of Case File No. 36-622 have shared with current members of the OAG executive staff their opinion that the case is flawed and not prosecutable."  As Kane has not said who the officials are, Williams has no way of knowing what judgments they shared with Kane's staff.

Not content with being wrong about what happened with the feds, Williams compounded his mistake by insisting, "You [Kane] have repeatedly asserted it was the previous prosecutors who dropped charges against [Confidential Informant Tyron Ali], when in fact it appears that it was you who did so, and then sealed the proceedings to keep them from public scrutiny."

Again, we are not lawyers, but we are pretty sure that it is judges who seal court records, not prosecutors.

In this case, the judge sealed the records September 12, 2013, "after the informant's attorney initially requested charges to be dropped per agreement signed before Attorney General Kane took office."

A request, by the way, that was accompanied by an affidavit from none other than Frank Fina himself.

We have previously explained that Williams' childish insistence that Kane "dropped the charges" is disingenuous. Fina signed an agreement to drop all charges against Ali on November 30, 2012 - 45 days before Kane took office. Kane wanted to nullify the agreement Fina signed, but because the agreement was a legally enforceable contract, she was forced to honor it on November 8, 2013.

Considering that records in the case had been sealed - by a judge - two months earlier, the timeline does not support Williams' claim that Kane "dropped the charges, then sealed the proceedings."

How did Williams manage to come to such extraordinarily erroneous conclusions?

CAN INVESTIGATOR AND KANE BOTH BE TELLING THE TRUTH? YES.

The lead investigator in the Philadelphia sting operation that Attorney General Kathleen Kane shut down – in part because of possible racial targeting – this week came forward to deny he was ordered to target African-American legislators.

“No one would, again, ever suggest asking, ordering me to target members of my own race or any race.  It just would not happen," the investigator, who now works for Philadelphia District Attorney Seth Williams, told Fox 29.

In a statement, Kane said the investigator “indicated that he was instructed by his supervising OAG Attorney to focus only on members of the General Assembly's Black Caucus and that when he had information of potentially illegal acts by white members of the General Assembly he was specifically told not to pursue it.”

There are 23 members of the Pennsylvania Legislative Black Caucus, most of whom represent the Philadelphia area. It’s entirely possible the investigator was instructed to focus on some or all of these members by name, without anyone mentioning their ethnicity or their membership in the Black Caucus. It may not have registered with the investigator that all of the targets were people of color.

All but one, that is.

"There was several members of both the House and the Senate, Caucasian as well as African-American, who requested a number of things,” the investigator told Fox 29.

He doesn’t mention how many of the targets were Caucasian or who they were (And Fox 29 didn’t ask. Tsk, tsk, Fox 29).  Of 113 recording sessions conducted throughout the sting, there are only two white “targets,” one of whom “is on tape merely because he happens to be in a room with two black targets.”

Apparently, the sole white target of the sting was a legislator who had enraged then-Attorney General Tom Corbett in 2010 with his criticism of Corbett’s legislative investigation as politically motivated. 

“He started to explode,” Rep. John Galloway said. “He was this close to my face. ‘What do you know? I’m gonna send agents.’”

Send agents he did.  Galloway said, “One sits here like this, focuses right on me, and he’s asking me 'What do you know? Where did you come from? Why did you say what you said?' Another guy starts walking around, looking at my family pictures. 'Is this your daughter? Is this your wife? What does she do for a living?' Picks up papers, intimidating like you wouldn't believe.”

Months later, Galloway was then the sole white target for Frank Fina's ostensibly color-blind sting using Tyron Ali.  Coincidence?

Galloway’s appearance on the recordings does not exactly make the case that the targeting process was impartial, but it does give the investigator cover to say that both whites and people of color were targeted.

SETH WILLIAMS: LET'S YOU AND HIM FIGHT

Philadelphia District Attorney Seth Williams reminds us of that kid on the playground who's always trying to get someone else to take on the bully he's too afraid to confront himself.

Ever since Attorney General Kathleen Kane revealed that two members of his staff engaged in a sloppy sting investigation possibly tainted by racial targeting, Williams has been obsessed with branding her a liar.  There is, of course, one sure way to do so: by successfully prosecuting the case she says is unprosecutable.  But he won’t.

The lead investigator, who now works for Williams, told Office of Attorney General staff "that he was instructed by his supervising OAG Attorney to focus only on members of the General Assembly's Black Caucus, and that when he had information of potentially illegal acts by white members of the General Assembly he was specifically told not to pursue it.”

The agent, who was promised a promotion and cash bonus for working on the investigation, has been forced to recant. Williams trotted him out for a Fox 29 interview, in which he denies racial targeting, but curiously, he never denies telling OAG staff that he was instructed to focus on members of the Black Caucus.  Not that was he asked. Tsk, tsk, Fox 29.

Another reason Kane declined to prosecute the case is that “federal law enforcement officials with knowledge of Case File No. 36-622 have shared with current members of the OAG executive staff their opinion that the case is flawed and not prosecutable.”  Williams has pounced on her assertion, insisting that neither the FBI nor the U.S. Attorney’s Office declined to pursue the case. Kane never said they did. She never asked them to.

But even if, for some reason, Kane is lying about all of this - if there was no racial targeting, if federal officials never shared an opinion about the case – that won’t explain why Williams himself won’t prosecute.

If Williams is correct that Kane should have prosecuted, and the feds could have prosecuted, he opens himself to the question, why won’t he prosecute?

If the case is solid, Williams should pursue it. If it’s not, he should shut up.

We’re at a loss why the Inquirer keeps indulging him in his insistence that Kane is lying about the case being flawed, and the feds never said it was flawed, when he himself admitted it’s flawed. He told the Inquirer it would be difficult for his office to prosecute the cases because Confidential Informant Tyron Ali apparently no longer had any legal obligation to testify against those he had taped because the charges against him had been dropped. “There's no way I can use him under any prosecutorial theory I can think of," Williams said.

It was Williams’ own Assistant District Attorney Frank Fina, the supervising OAG attorney on the case, the one who told the lead investigator to focus on members of the Black Caucus, the one who promised him a promotion and cash bonus for working on the case, who dropped the charges. And he did it 45 days before Kane even took office.

Williams contends it was Kane who dropped the charges, but he’s being disingenuous. Fina prepared and signed the agreement on Nov. 30, 2012. Kane didn’t intend to dismiss the case, but Ali's lawyer filed a motion in court demanding action on the agreement and she had no choice. The agreement could be revoked only if Ali broke the terms, and Kane was legally obligated to honor it.

But here again, if she’s wrong and he’s right, he could have pursued the charges. Fina left the OAG and joined the Philadelphia District Attorney’s Office in April of 2013, taking a copy of the rejected sting case file with him.  Kane didn’t take action to formally dismiss the charges against Ali until October. If Williams didn’t think the agreement Fina signed in November 2012 rendered the case unprosecutable, why didn't he prosecute it? If he did, he should shut up.

Alas, he won’t shut up. And he’s too afraid to touch the case with a ten-foot pole. Meanwhile, who’s showing more political courage than Williams? Harrisburg gadfly Gene Stilp, who’s filed a private criminal complaint against some of the lawmakers targeted in the sting.

It’s a sad state of affairs when a court jester like Stilp has more guts than the District Attorney of Philadelphia.

"A WEALTH OF INFORMATION"

When Mike Manzo, former Chief of Staff to the House Democratic Leader, was sentenced to prison in 2012, prosecutor Frank Fina said Manzo had provided "a wealth of information" on other cases.

"In his own statement to the judge, Fina said Manzo had helped with a 'large number of investigations that have yet to be revealed… entirely separate from what the court has seen.'"

According to the Patriot-News, "The sentencing of Manzo, one-time chief of staff to former House Minority Leader Bill DeWeese, was delayed because he continued to be a key prosecution witness used by the state attorney general's office.
Manzo was "definitely at the tip of the spear in terms of cooperation," Fina said.

Fina would not elaborate. As the years went by and no new cases were brought against House Democrats, we often wondered just what the heck Fina meant.

Then we learned about Fina's botched sting operation targeting African-American members of the House. And then we learned that shortly after Manzo's sentencing, Fina urged then-Attorney General Linda Kelly to "expand the inquiry," in an effort to snare even more legislators.

Were these the investigations for which Manzo had provided  "a wealth of information?"  Did Manzo spend months telling prosecutors about the proclivities and foibles of House Democratic members in an effort to have them arrested, only to emerge from prison and secure employment lobbying those very members?

It seems obvious, given that the Office of Attorney General has brought no other cases against House Democrats since Manzo's sentencing.

When asked about the cases on which Manzo was cooperating, Fina said, "We don’t do these things for public notoriety.  And we can’t effectively do them if there is public notoriety.  The only way we can really do our job is if we do these investigations in secret in a very careful way.”

While Fina's "Bonusgate" investigation leaked like a sieve, he was incredibly concerned about secrecy in the Philly sting operation. In his memo to Kelly, he worried "the integrity of our secrecy efforts" may have been compromised. His concern over secrecy where Manzo is concerned - given his total lack of it during "Bonusgate" - points to a sting.


Kelly never acted on Fina's suggestion to expand the probe. Had she, it's likely that we'd have seen mugshots of at least a few current members of the House Democratic Caucus. Instead, Mike Manzo, a contract lobbyist, spends his days schmoozing the very legislators his cooperation might otherwise have landed in prison.

Several news organizations have filed a request to have records in the sting operation unsealed, a move supported by Attorney General Kathleen Kane.  How will legislators react if they discover they were targeted by a prosecutor armed with the insider information Manzo provided?

LET'S SEE WHAT HAPPENS

The defenders of former Deputy Attorney General Frank Fina recently bent the ear of Philadelphia Inquirer commentator Michael Smerconish. It appears that intrepid crime fighter Fina really wasn't trying to nab just any ol' bad guys in the sting Attorney General Kathleen Kane deep-sixed. Instead, Fina wanted to use controversial confidential informant Tyron Ali to troll Harrisburg "to see what would happen":

"However, these five individuals were never the investigation's focus, according to a person close to the investigation with whom I spoke last week: 'We could have done that until the cows came home.' Instead, the investigation had a broader, long-term focus predicated on relationship-building, 'not pinching individual legislators,' said this individual. Indeed, investigators say this wasn't about individual lawmakers, which  is why they take umbrage with Kane having played the race card. Their effort was born of frustration that, despite having racked up 23 convictions of both Republicans and Democrats in Bonusgate and Computergate, there was no change in the culture of Pennsylvania politics. So they set their sights larger, intending to let Ali spread money around, ingratiate himself, and see what would happen if the faux lobbyist set up offices in Harrisburg." (Philadelphia Inquirer 3/30/14)

Well, if they didn't really want to nab the now-infamous four Democratic state legislators caught on tape, who exactly did they want to entrap to end this nefarious "culture" of Pennsylvania politics? A sitting leader in the legislature? All members of all four legislative caucuses? What does it really mean to say they wanted an open-ended sting to "see what would happen?"

Apparently, Fina didn't want to grab a sitting Speaker of the House for using his taxpayer-funded staff for his campaign. Pre-trial documents filed by former State Representative Mike Veon show that Fina had in his possession reams of fundraising databases and emails used by then-Speaker Keith McCall for his campaign and those of other House candidates. (Veon pre-trial filing exhibits) In fact, McCall had multiple state legislative staff working on his fundraising, including a former Veon staff member who testified under oath during the "Bonusgate" trial that he was doing precisely the same kind of illegal political work for McCall that he did for Veon:

"Lavelle also did not dispute the assertion that he continued fundraising after joining the staff of then-Democratic Whip Keith McCall in 2007, who has not been charged with wrongdoing. 'You continued to do fundraising as part of you job with Speaker McCall?' defense lawyer Dan Raynak asked. 'You continued to send out memos and e-mails during the work day with Speaker McCall?' 'That's correct,' Lavelle replied." (Associated Press 2/19/2010)

McCall isn't the only sitting Speaker of the House that Fina let off the hook.  He was untroubled by Speaker Sam Smith's deep involvement with the "Computergate" scandal in the House Republican Caucus. Page after page of grand jury testimony documents Smith's knowledge and participation in the scheme that defrauded the taxpayers by at least $10 million. (9/27/11)

Nor did Fina and his crew seem concerned about the Republican State Senate Caucus' 40% share of the illegal 60/40 scheme that determined who got Pennsylvania Turnpike contracts and jobs. Only the State Senate Democratic 60-percenters were investigated by Fina's team for Kane to ultimately indict:

"A former Chief Operating Officer of the Turnpike explained, 'the choice of who the -- which firms they are, as I said, typically, there was always a 60/40 rule,...that selection, depending on what year, and who the governor was, and who was on the State Senate, it would either come out of the Senate leadership or out of the Governor's office.' In practice, the Senate provided direction to the Commission through their staff persons." (Grand Jury presentment)

We'll be hearing quite a bit about the 60/40 rule this spring during the Turnpike corruption trial, but only the State Senate Democratic Caucus...not Governor Ed Rendell, Senator Chip Brightbill, or Senator Bob Jubelirer.

Let's face it...Fina and his defenders are blowing smoke about trying to end corruption in Harrisburg.  They certainly wanted to make arrests and glorify themselves, but only by carefully selecting who to go after and who to indict...regardless of their own evidence and witness testimony.

SETH WILLIAMS' RACE PROBLEM

There is one reason Seth Williams is attacking Attorney General Kathleen Kane's decision not to pursue charges in Frank Fina's Philadelphia sting operation, and it's not because he thinks it's a solid case.

After all, Williams has concurrent jurisdiction and is free to file charges if he sees fit. But as he told the Philadelphia Inquirer, "[confidential informant Tyron] Ali apparently no longer had any legal obligation to testify against those he had taped because the charges against him had been dropped."

The charges were dropped 45 days before Kane took office. The obstacle Williams says he faces is the obstacle Kane faced.

"There's no way I can use him under any prosecutorial theory I can think of," Williams said. So under what prosecutorial theory does he think Kane can?

None, of course. As we said, he's not attacking Kane because he thinks Fina built a solid case.

He's attacking Kane because she revealed that two members of his staff participated in apparent racial targeting. That doesn't look good to voters, especially in a majority-minority city like Philadelphia.

According to Kane, "The OAG Agent who managed the CI was debriefed by current senior OAG executive staff members prior to his leaving OAG for employment at PDAO (to join again with the former OAG Attorneys who had previously directed the investigation). During the debrief, the OAG Agent indicated that he was instructed by his supervising OAG Attorney to focus only on members of the General Assembly's Black Caucus and that when he had information of potentially illegal acts by white members of the General Assembly he was specifically told not to pursue it. The OAG Agent also stated that his supervising OAG Attorney promised him a promotion and cash bonus for working on the investigation."

Furthermore, "Statements about limiting the focus of the investigation to only members of the General Assembly's Black Caucus were also made by the CI to federal law enforcement officials."

Sure, Williams had the option of feigning outrage and making a show of firing Fina and Claude Thomas, the OAG Agent who supervised Ali. But he'd admitted he'd already reviewed the case and he clearly had no problem with the tactics at the time of his review. If he publicly accepts Kane's version of events, it might be interpreted to mean he'd knowingly harbored staffers who participated in apparent racial targeting.

So he can't publicly accept Kane's version of events.

Williams excuses the damning fact that of 113 recordings, white targets appear only twice - because, he said, only black targets circulated in Ali's "immediate realm."

But his statement contradicts "sources with knowledge of the sting," who said "the investigation made financial pitches to both Republicans and Democrats, but only Democrats accepted the payments." There being no black Republicans of note in Philadelphia politics, that statement means financial pitches were made to white targets who turned them down.

Which is it? Were pitches made to white Republicans or were only black Democrats targeted because they were in Ali's "immediate realm?"

And if pitches were made to white Republicans who turned them down, where are the recordings? Of the two white targets, one "is on tape merely because he happens to be in a room with two black targets," Kane said. And the other one is John Galloway, who has every reason to believe he was targeted because he enraged Tom Corbett with his criticism of the "Bonusgate" investigation.

Galloway said,"The idea was to scare the living (expletive) out of anybody who questioned Tom Corbett."

Was, and still is.

A PREEMPTIVE STRIKE

We first read the Inquirer’s Sunday report on Frank Fina’s aborted Philadelphia “sting” online, without having seen the ludicrous “MEN WALK ON MOON”-sized headline.

We thought what we were reading was an exposé of Fina’s shoddy, racist, irresponsible investigative methods.  We were shocked later to realize that it was Attorney General Kathleen Kane whose judgment was being questioned. We're still shocked, to be honest.

Kane’ main reasons for declining to prosecute are unambiguous:

•     The entire case hinged on the testimony of a swindler accused of stealing nearly a half-million dollars from a state food program for low-income children and seniors. In exchange for his cooperation, Tyron B. Ali wasn’t merely offered a deal on the charges, but given a complete free pass – an agreement “so extraordinary and lenient that it effectively undermined the CI's credibility and that of OAG for having agreed to it,” Kane said.
•           The recordings Ali made are the only evidence, and Ali was the only one who could verify them. “No other supporting or corroborating evidence exists,” Kane said
•         The OAG Agent who managed Ali told current senior OAG executive staff that he was to focus only on members of the Black Caucus and not to pursue potentially illegal acts by white legislators.
•         Ali himself gave “statements about limiting the focus of the investigation to only members of the General Assembly's Black Caucus” to federal law enforcement officials.
• It's not illegal for officials simply to accept gifts. The operation failed to establish a clear quid-pro-quo. The only thing the officials appear to be guilty of is a failure to report the gifts on their ethics statements - an offense equal to Governor Tom Corbett's failure to report the purchase of a $265,000 vacation home in South Carolina - and no one seems to be clamoring for a criminal prosecution of Corbett. 

It is inconceivable that Kane’s elected predecessor would be second-guessed for dropping a prosecution given the compelling reasons listed above.  There is no doubt: if reporters had asked Tom Corbett why he chose not to pursue a particular case and he responded, as Kane did, that the case improperly focused on African Americans and a county D.A. had called the case “unprosecutable,” the headline on the story would’ve read, “Botched Sting Attempt Tainted By Racism.”

Probably not in two-foot-high font, though.

Since Kane’s exhaustively thorough press conference yesterday, the  punditocracy seems to be backing off its initial pearl-clutching horror while still blaming Kane for her own tar-and-feathering. After all, they sniffed, she should have explained everything in more detail before the story was published. Perhaps she should have. But perhaps she thought she would be afforded the same respect for her office that Corbett had been. Perhaps she thought that her word that a case was compromised beyond salvaging would be taken seriously. Furthermore, we don’t know how much time she was given to respond, or how the allegations of political cronyism were presented to her.

We at this blog have spent years – years! – documenting clear-cut instances where Tom Corbett failed to prosecute wrongdoing by political allies. York County District Attorney Stan Rebert. Rep. Matt Wright. Rep. James Lynch. State Rep. Mauree Gingrich.  State Rep. Eugene McGill. Crawford County Treasurer Fred Wagner. And these are just a few that we know about.

Corbett has not offered a single justification for not prosecuting as cogent as Kane’s plethora of reasons in the Philadelphia case. In fact, we can’t recall Corbett even being asked. But if he had given a reason, we’re sure it would have been accepted at face value.

Perhaps most egregiously, Corbett “cleared” the Senate Republican Caucus - which awarded the largest taxpayer-funded bonuses to staff who worked on campaigns – of wrongdoing without subpoenaing a single witness to appear before the grand jury. Even a Republican Senator called Corbett’s investigation “a joke” and said his lack of action was politically motivated. Corbett in fact blew off an intern who tried to report illegal campaigning in Sen. Jane Orie’s office, then his spokesman tried to lie about it.

Senate Republicans contributed at least $90,000 to Corbett’s campaign.

The idea that Kane would risk the integrity of her office to protect relatively low-level Philadelphia lawmakers is frankly absurd, even if she does have gubernatorial aspirations. Even the craven manipulators who leaked the story to the Inquirer know what an absurd notion it is. Kathleen Kane is arguably the most popular Democrat in Pennsylvania, winning more votes in 2012 than even President Obama and Senator Casey. She’s about to release a report on how her predecessor botched the Jerry Sandusky child molestation investigation. Even someone naïve enough to believe Kane’s beholden to Philadelphia House members and Traffic Court judges has to be savvy enough to figure out what ‘s going on here.