Most of the furor over the email we know Pennsylvania prosecutors, judges, and lawyers traded has focused on the pornographic, and sometimes racist, sexist and homophobic content.
But some say there’s another story here.
Former U.S. Attorney Pete Vaira recently raised a question in a piece in the Legal Intelligencer, which he put a little more succinctly when I spoke to him.
“Wait a minute,” Vaira said. “All these people are exchanging ex-parte communications of something very nasty and sensitive. What do they do otherwise?”
In other words, you wouldn’t send raunchy stuff like this to just anybody. It would go to somebody you know well enough to trust with material that could embarrass you, maybe even get you fired.
If judges and prosecutors and lawyers were doing this over a period of years, Vaira said, were they also having improper conversations about cases?
An ex-parte communication happens when someone in a legal matter discusses the substance of the case without notice to the other parties.
The email porn doesn’t fit that description, or prove that it happened. But Lynn Marks, director of Pennsylvanians for Modern Courts, agrees they suggest an uncomfortably close relationship.
“Regardless of whether you think this material is offensive – and I do – who would send these kind of emails to somebody unless you had a close personal relationship?” she said.
I spoke to Edward Cahn, who served as chief judge for the federal court in the Eastern District of Pennsylvania.
He said judges and prosecutors are lawyers, and lawyers talk to each other a lot, and the fact that they may have exchanged these emails doesn’t mean they would have improper discussions of ongoing cases.
Marks said she understands we all have social relationships
“While judges are, of course, permitted to have friendships, they must also recognize the impact of their behavior of the public’s perception of fairness and impartiality in judiciary,” Marks told me.
So how do we find out if the people who traded porngate email had improper discussions about cases?
Vaira said there’s a way to do that.
“The Supreme Court can appoint a special counsel to report to them, somebody who’s a good investigator, preferably a former prosecutor who could smell a rat,” Vaira said. “Go out and interview these people.”
Former state Supreme Court Justice Ron Castille agrees. An investigator, he said, can check the records and see which lawyers and prosecutors had cases before judges they traded email with.
“You want to look to see if those individuals have appeared in front of the Supreme Court, or some county judge, and that judge didn’t recuse himself or at least put on the record that they have a relationship,” Castille said.
Whom do you trust?
Those who favor appointment of a special investigator agree it should be someone with no ties to Pennsyvlania’s legal community.
But there’s another question: Who appoints him or her?
The Pennsylvania Supreme Court, one of whose justices — Michael Eakin — is now under scrutiny for his emails?
The State Judicial Conduct Board, whose chief counsel was cited for conflicts of interest in the Eakin case?
It’s a question with no clear answer, reinforcing the perception that in Pennsylvania, the legal community is an insiders club.