PA Office of AG v. Supervising Judge of the 35th Statewide Investigating Grand Jury

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF : No. 171 MM 2014

ATTORNEY GENERAL, :

:

Petitioner :

:

:

v. :

:

:

SUPERVISING JUDGE OF THE THIRTY- :

FIFTH STATEWIDE INVESTIGATING :

GRAND JURY, :

:

Respondent :

ORDER

PER CURIAM

AND NOW, this 26th day of August, 2015, upon the request of the supervising

judge for removal of the seal from all matters involving the 35th Statewide Investigating

Grand Jury and the investigation of Attorney General Kathleen Kane which have been

lodged in this Court, save for grand jury materials such as testimony, exhibits, and in

camera proceedings, and based on the supervising judge’s assurance that there are no

present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED

that the seal is lifted, in part, upon such terms.

M.D. MisC. Dkt FI1eInSupfOmeCOU

:.. • 71 OI4 NOV 1 O 2014

UNSEALED PER ORDER OF

THE COURT DATED

AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF

ATTORNEY GENERAL, No. MM2014

Petitioner

V.

SUPERVISING JUDGE OF THE FILED UNDER SEAL

THIRTY-FIFTH STATEWIDE

INVESTIGATING GRAND JURY,

Respondent

PENNSYLVANIA OFFICE OF ATTORNEY GENERALS PETITION

FOR REVIEW OF ORDERS ENTERED BY SUPERVISING JUDGE OF THE

THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY

ON AUGUST 27,2014, SEPTEMBER 17, 2014, AND OCTOBER 30,2014

TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF

PENNSYLVANIA:

AND NOW, comes the Office of Attomey General of the Commonwealth of

Pennsylvania by Kathleen G. Kane, Attorney General of the Commonwealth of Pennsylvania,

who files this petition seeking the Supreme Court of Pennsylvanias review and vacation of the

determination of the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury

encompassed by the four related and interconnected Orders dated August 27, 201 4, September

1Recelvet fn Suptœe Coutlt

NOV 102014

17, 2014, and October 30, 2014 (collectively, the protective order). In support thereof, the

following is averred:

JURISDICTION

1. This Court has jurisdiction over the instant petition pursuant to 42 Pa.C.S.A. §

722(5) and Pa.R.A.P. 3331(a)(3).

2. The petition for review is timely-filed because: (a) OAG had 10 days from the

date of entry of the Order at issue t to file the petition, see Pa.R.A.P. 3331(a); Pa.R.A.P.

1512(b)(3);(b) the Order at issue was filed on October 30, 2014, rendering a filing deadline of

November 10, 2014;2 and (c) OAG filed the petition on November 10, 2014.

PARTY SEEKING REVIEW

2. The Petitioner is the Office of Attorney General of the Commonwealth of

Pennsylvania(OAG).

GOVERNMENT UNIT RESPONSIBLE FOR

DETERMINATION SOUGHT TO BE REVIEWED

3. Respondent is the Supervising Judge of the Thirty-Fifth Statewide Investigating

Grand Jury, the Honorable William R. Carpenter(the Supervising Judge).

DETERMINATION SOUGHT TO BE REVIEWED

4. OAG seeks this Courts review of the Supervising Judges Order dated October

30, 2014, which denies OAGs motion for reconsideration of the Order entered by the

Supervising Judge dated August 27, 2014 as amended twice thereafier on September 1 7, 201 4.

See copy ofthe October 30, 2014 Order, attached as Exhibit A.

The Order at issue rendered final a previously-entered order that was amended twice. See infra.

2 Because the 10th

day following October 30, 2014 was Sunday, November 9, 2014, the filing

deadline is the next business day, Monday, November 10, 2014. See 1 Pa.C.S.A. § 1908.

2

5. In other words, the determination sought to be reviewed encompassesfour related

and interconnected orders:

a. the August 27, 2014 Order, which states, inter alia, that: (i) OAG

shall refrain from any involvement in or access to the investigative efforts of the

Special Prosecutor in Notice No. 123; (ii) OAG and its employees shall have no

access to the transcripts, exhibits, and other information pertaining to Notice No.

123; (iii) OAG employees shall refrain from engaging in or soliciting any act of

obstruction, intimidation, or retaliation against any witness summoned by the

Special Prosecutor in Notice No. 123; and (iv) any person who engages in an act

of obstruction, intimidation, or retaliation against a witness summoned by the

Special Prosecutor in Notice No. 123 may be prosecuted pursuant to 18 Pa.C.S.A.

4955;3

§

b. the September 17, 2014 Order, which amended the August 27,

2014 Order to permit a second hearing -- this one with the ostensible involvement

of OAG -- to be conducted on the subject of allegations of obstruction, witness

intimidation, and/or retaliation; 4

c. another September 17, 2014 Order, which amended the August 27,

2014 Order and indicated, inter alia, that only the following persons are subject to

the prohibition of obstruction, intimidation, or retaliation of any witness and

criminal prosecution therefore: (i) any person who has been sworn to Grand Jury

secrecy;(ii) any person who has or had access to any Grand Jury information; and

(iii) any person associated with the J. Whyatt Mondesire investigation and

proceedings;5

d. the October 30, 2014 Order, which renderedjìnal the amended

protective order.

See copies of the August 27, 2014 Order and the two September 17, 2014 Orders, attached as

Exhibits B, C, and D,respectively.

For purposes of clarity and ease of reference, this Order is referred to hereinafter as the initial

protective order.

Prior to the entry of the initial protective order, the Supervising Judge conducted an in camera

exparte hearing that excluded OAG and its employees completely.

For purposes of clarity and ease of reference, the initial protective order as amended by the two

September 1 7, 2014 Orders is referred to hereinafter as the amended protective order.

3

STATEMENT OF OBJECTIONS TO THE DETERMINATION

Background

6. On June 6, 2014, the Philadelphia Daily News published an article describing a

review by OAG of a prior Grand Jury investigation. See copy of the on-line version of the

article, attached as Exhibit E.

7. The Supervising Judge appointed Thomas Carluccio, Esquire as Special

Prosecutor to investigate this development pursuant to Notice of Investigation No. 1 23 and

authorized him to use the resources of the Thirty-Fifth Statewide Investigating Grand Jury.

8. OAG, which conducts all other investigations in the Thirty-Fifth Statewide

Investigating Grand Jury, has made every effort to accommodate the Special Prosecutors needs

and has cooperated with him fully.6

9. On August 26, 2014, with no prior notice to OAG or any of its individual

employees, with no specific allegations or explanation, and with no opportunity for OAG to

respond to any allegations of misconduct, the Supervising Judge issued the initial protective

order under the authority of 1 8 Pa.C.S. § 4954 (along with a related sealing order). See Exhibit

B.

6

The Special Prosecutors allegation to the contrary contained in a prior filing in this Court in a

related matter is incorrect. By way of example only, prior to issuance of the protective order

OAG: (a) bent over backwards to assist the Special Prosecutor in orienting himself to the

facilities and process utilized by the Thirty-Fifth Statewide Investigating Grand Jury; (b)

performed all scheduling, subpoena issuance, logistical, and clerical tasks requested of it by the

Special Prosecutor; (c) ensured that its employees appeared and testified as required by the

Special Prosecutor; and (d) on at least one occasion, complied with the specific, direct, and

unambiguous instruction of the Special Prosecutor to, on his behalf inform witnesses called by

him for his investigation in Notice No. 1 23 of their rights and obligations under the law. The

combined effect of the Supervising Judges Order that OAG have no involvement in the Special

Prosecutors investigation along with the Special Prosecutors insistence that OAG employees

perform some of his work for him has been to place OAG employees in a patently untenable

position.

4

1 0. As noted supra, that Order stated, inter alia, that:(a) OAG shall refrain from any

involvement in or access to the investigative efforts ofthe Special Prosecutor in Notice No. 123;

(b) OAG employees shall have no access to the transcripts, exhibits, and other information

pertaining to Notice No. 123;(c) OAG employees shall refrain from engaging in or soliciting any

act of obstruction, intimidation, or retaliation against any witness summoned by the Special

Prosecutor in Notice No. 123; and (d) any person who engages in an act of obstruction,

intimidation, or retaliation against a witness summoned by the Special Prosecutor in Notice No.

123 may be prosecuted pursuant to 18 Pa.C.S.A. § 4955.

1 1. OAG moved for reconsideration of the initial protective order, and argument on

the motion was conducted on September 16, 2014.

12. At the time of that argument, OAG was informed for the first time that an ex

parte, in camera hearing had been conducted and that the initial protective order had issued as

a result.

13. On September 17, 2014, the Supervising Judge issued an Order granting in part

OAGs motion for reconsideration, granting a hearing on the subject of...allegations of

obstruction, witness intimidation, and/or retaliation, but not establishing a date for said hearing.

(Exhibit C at 1).

14. The Order failed to specify any person or conduct that was at issue in connection

with the allegations.

1 5. The Order failed to explain, elaborate, or otherwise provide a context for the

phrase allegations of obstruction, witness intimidation, and/or retaliation.

16. The Order failed to identify the source ofthe vague allegations.

5

17. Also on September 17, 2014, the Supervising Judge issued another Order granting

in part OAGs motion for reconsideration, this one amending Paragraphs 2 and 5 of the initial

protective order to indicate that only the following persons are subject to the initial protective

orders prohibition on obstruction, intimidation, or retaliation against witnesses in the Special

Prosecutors investigation as well to the penalty of prosecution for violation of 42 Pa.C.S.A. §

4955:

1. Any person who has been sworn to Grand Jury secrecy;

2. Any person who has or had access to any Grand Jury information;

3. Any person associated with the J. Whyatt Mondesire proceedings and

investigation.

(Exhibit D at 1).

18. The foregoing amended language is not Iimited to any particular grand jury or

grand jury information -- past, present, or future.

1 9. The amended protective order applies to and directly affects hundreds of OAG

employees past and present residing throughout the Commonwealth, innumerable individuals not

affiliated in any manner with OAG,as well as the Attorney General and her predecessors.

20. People who have been sworn to grand jury secrecy include the Attorney General,

OAG employees, employees of other law enforcement agencies who participate in grand jury

investigations, court reporters, and members of the grand jury.

21. People who have had access to grand jury information include not only the

foregoing persons, but also witnesses to grand jury investigations and their counsel.

22. The initial protective order was issued pursuant to 18 Pa.C.S.A. §4954, which

permits [a]ny court with jurisdiction over any criminal matter to issue protective orders afier

a hearing and in its discretion, upon subsiantial evidence.

6

23. The Supervising Judge directed the Special Prosecutor to serve the initial

protective order on OAG only (Exhibit B at 2 ¶ 6) and did not provide for service on all of the

persons subject to its terms.

24. Notwithstanding the fact that many persons unaffiliated with OAG are subject to

the protective order, the Supervising Judge explicitly prohibited the disclosure of the contents of

the protective order to anyone outside OAG under penalty of contempt.

25. On September 19, 2014, OAG filed in this Court an Application for Special Relief

pursuant to 42 Pa.C.S.A. §sS 502, 726 and Pa.R.A.P. 3309.

26. On October 2, 2014, this Court dismissed the Application for Special Relief as

moot based on the indication that there would be a hearing, and directed that the hearing take

place.

27. Subsequently, the Supervising Judge scheduled the hearing requested by OAG for

October 17, 2014.

28. On October 17, 2014, two months after the initial protective order had been

issued, OAG and the Special Prosecutor appeared before the Supervising Judge for the hearing

as directed by the Supreme Court and as required by 18 Pa.C.S. § 4954•7

29. The Office of Attorney General attempted to comply with the mandate of the

Supreme Court and engage in a hearing as understood under the plain meaning of the word

heaing.

Despite request, OAG has been denied a copy of the transcript for the October 1 7, 2014

hearing. Accordingly, the factual representations contained herein regarding what transpired

at the proceeding are necessarily -- and regrettably -- based solely on the recollections of the

individual employees of OAG who were present at the proceeding.

7

30. To that end, OAG sought leave of the Supervising Judge to subpoena Frank G.

Fina, Esquire (Fina) and E. Marc Costanzo, Esquire (Costanzo), whom OAG understood to

be the alleged victims/accusers ofintimidation in connection with Notice No. 123.

31. OAG sought to question Fina and Costanzo to ascertain the nature and extent of

the intimidation that they have alleged, as well as to test the veracity and credibility of their

accusations.

32. The Supervising Judge denied that request.

33. When the Court refused OAG the opportunity to question its apparent accuers on

the record, OAG asked the Court for a copy of transcript for the ex parte in camera hearing that

preceded the issuance of the initial protective order in an alternate attempt to gain an

understanding of the genesis of the protective order.

34. The Supervising Judge denied that request.8

35. Having been denied the opportunity to question the alleged victims as well as the

opportunity to review a transcript of the prior hearing, the attorneys representing OAG at the

hearing were precludedfrom ascertaining thejàctual basisfor ihe proteciive order.

36. Finally, OAG counsel sought leave of the Judge to call as a witness the Special

Prosecutor, who was present for the ex parte, in camera hearing and presumably heard the

testimony ofFina and Costanzo.

37. The Supervising Judge denied that request.

8

Notably, the Supervising Judge had previously attached the relevant transcript to a pleading he

had filed in the Supreme Court, which in turn made available to OAG. When the Supervising

Judge discovered, two days later, that OAG had received the transcript from the Supreme Court,

he ordered OAG to return the copy or delete it prohibited OAG from talking about or using the

contents of the transcript. In essence, OAG was directed by the Supervising Judge to erase the

memories of any OAG employee who had lawfully seen the transcript and to engage in an

ongoing pretense that the contents ofthe transcript had not been disclosed and were unknown.

8

38. OAG attempted to subpoena and question a journalist with first-hand personal

knowledge regarding: (a) the reason for the timing of the Right-to-Know Law (RTKL)

requests relating to the email accounts of Fina and Costanzo submitted to OAG; and (b) the

source of the information that triggered that request.

39. This particular testimony would be probative of whether there was a coniiection

between the RTKL requests relating to the email accounts of Fina and Costanzo on the one hand

and the testimony ofFina and Costanzo in Notice No. 123 on the other.

40. That connection is apparently at issue given that the October 30, 2014, Order

specifically relies on the factual finding that, The timing of the Right-to-Know Request naming

Frank Fina and Mark Costanzo among others were submitted to the Attorney Generals Office at

the time they were subpoenaed and/or scheduled to testify. (Exhibit A at 1-2).

41. Rather than permit OAG to fully develop the record on this issue, the Supervising

Judge rejected OAGs attempt to subpoena the witness and chose instead to ground his protective

order in untested inferences.

42. The foregoing deprivation of witnesses and foundational information by the

Supervising Judge prevented OAG from proceeding in any meaningful way: it had no way of

determining precisely what allegations had been leveled, whether rebuttal was necessary, and if

so what witnesses to call and what questions to ask.

43. Hamstrung by the Supervising Judges restrictive rulings,9 OAG was limited to

the presentation of a single witness, a Chief Deputy Attorney General, who testified about the

pornographic content of certain emails discovered on OAG computer equipment.

The Supervising Judges finding in its October 30, 2014 Order that the Attorney General

called only one witness... (Exhibit A at 3) is misleading because it omits the salient fact that the

Judge repeatedly denied OAGs counsels requests to present other witnesses testimony.

9.

44. On October 30, 2014, the Supervising Judge entered an Order denying OAGs

motion for reconsideration ofthe amended protective order. See Exhibit A.

Objections

45. The statutory provision on which the Supervising Judge relied reads as follows:

Any court with jurisdiction over any criminal matter may, after a hearing

and in its discretion, upon substantial evidence, which may include hearsay or the

declaration of the prosecutor that a witness or victim has been intimidated or is

reasonably likely to be intimidated, issue protective orders, including, but not

limited to, the following:

(1) An order that a defendant not violate any provision of this

subchapter or section 2709 (relating to harassment) or 2709.1

(relating to stalking).

(2) An order that a person other than the defendant, including, but

not limited to, a subpoenaed witness, not violate any provision of

this subchapter.

(3) An order that any person described in paragraph (1) or (2)

maintain a prescribed geographic distance from any specified

witness or victim.

(4) An order that any person described in paragraph (1) or (2)

have no communication whatsoever with any specified witness or

victim, except through an attorney under such reasonable

restrictions as the court may impose.

18 Pa.C.S. § 4954.

46. By its terms, Section 4954 grants to the court with jurisdiction the discretion to

enter a protective order and to decide the terms of a protective order, such that review of a

protective order would be for an abuse of discretion. See Commonwealth v. Sandusky, 70 A.3d

886, 897 n.9 (Pa. Super. 2013).

47. An abuse of discretion will be found when a lower court has reached a

conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly

10

unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Alicia, 92

A.3d 753, 760(Pa. 2014)(citation omitted).

48. To the extent that this case presents a question of law, such as the requirement of

a hearing, the Courts standard ofreview is de novo and the scope ofreview is plenary. ld.

49. The Supervising•Judge abused his discretion because the protective order violates

the state and federal due process rights of the Penrisylvania Attorney General, hundreds of OAG

employees, and innumerable people not affiliated with OAG.

50. In the words ofthis Honorable Court:

The due process clauses of the United States and Pennsylvania constitutions

embodÿ the principle offundamental fairness, entitling everÿ individual to be

free from arbitrarÿ or oppressive government conduct. This Court has found

that the guarantees associated with the due process clause of the federal

constitution are generally coextensive with those under the Pennsylvania

Constitution.

Commonwealth v. Wallace, 97 A.3d 310, 320(Pa. 2014)(citations omitted)(emphasis added).

5 1. The essential elements of due process of law are notice and opportunity to be

heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal

having jurisdiction of the cause. Fiore v. Com., Bd. ofFinance and Revenue, 633 A.2d 111 1,

1114(Pa. 1993).

52. As a matter of fundamental procedural due process, an individual may not be

deprived of a constitutionally protected interest without a hearing, and a hearing requires notice

and an opportunity to be heard; it follows that the opportunity to be heard must be at a

meaningful time and in a meaningful manner. See Mathews v. Eldridge, 424 U.S. 319, 333

(1976); Commonwealth v. Maldonado, 838 A.2d 710, 714(Pa. 2003).

11

53. OAG was not provided with prior notice that there had been an allegation of

misconduct and/or request for issuance of a protective order in connection with the Special

Prosecutor s investigation.

54. Although the protective order purports to apply to any person who has been

swom to grand jury secrecy, has or had access to any grand jury information, and/or is

associated with the J. Whyatt Mondesire proceedings and investigation, notice of this

protective order was provided afier thefact and only to the governmental agency OAG.

55. The order proscribes behavior and threatens criminal sanctions upon countless

unidentified individuals both within and without OAG, yet not a single one of them has been

served with notice of the order.1°

56. The protective order was conceived and initially filed in a remarkably partisan

fashion, the product of a one-sided in camera, ex parle proceeding that deprived those who were

targeted and eventually subjected to the order of any opportunity to address the allegations that

provoked the Supervising Judge to enter the order.

57. Rather than fully develop a factual record in a disinterested and even-handed

fashion, the Supervising Judge inexplicably accepted the covert allegations of OAGs accusers at

face value.

10

There is no reasonable basis for concluding that every person encompassed by the protective

order is likely to engage in intimidating activity or retaliatory conduct based on testimony before

the Grand Jury, especially since (a) the vast majority of OAG employees have no contact with

the Grand Jury and would be completely unaware of the Special Prosecutors investigation,(b)

eveh among those employees who have contact with the Grand Jury, most would be completely

unaware of the Special Prosecutors investigation (as just one example, it is difficult to imagine

that a Medicaid Fraud investigator in Pittsburgh would have any knowledge of, or interest in, a

leak investigation involving the Norristown Grand Jury), and (c) there have been no reports of

any contact with witnesses apart from the two incidents involving OAG agents discussed infra.

12

58. Although the Supervising Judge subsequently acquiesced to OAGs request for a

hearing after the fact, the process eventually afforded to OAG was hollow and meaningless.

59. As recounted supra, OAG was prohibited from accessing the transcript of the

initial ex parte proceeding and was denied knowledge of the specific factual allegations which

formed the basis for the protective order.

60. The deprivation of this information by the Supervising Judge prevented OAG

from proceeding in any meaningful way: it had no way of determining precisely what

allegations had been leveled, whether rebuttal was necessary, and if so what witnesses to call and

what questions to ask.

61. In addition, the Supervising Judge: (a) precluded OAG from calling the purported

victims/accusers as witnesses and probing the nature, veracity, and credibility of their claims;

and (b) rejected OAGs attempt to subpoena and question a journalist with first-hand personal

knowledge directly relevant and probative to an apparent allegation of witness intimidation.

62. The Supervising Judge denied OAG, its employees, and the others affected a

constitutionally adequate hearing on the subject ofthe protective order.

63. To date, OAG is still unaware of the precise nature of any allegation of

misconduct giving rise to the issuance of the protective order, and has been left to speculate in

that regard.

OAG is aware generally of: (a) an allegation that two agents behaved in an inappropriate

manner towards Fina and Costanzo at the OAGs grandjury suite on August 26, 2014; and (b)an

allegation that recent Right to Know Act submissions by the press to OAG are linked to the

Special Prosecutors investigation. The former appears to be a basis for the protective order

because the order was issued the day after Fina and Costanzo appeared, i.e. August 27, 2014.

The latter appears to be a basis for the protective order because the Supervising Judge alludes to

it in his October 30, 2014 Findings of Fact and Conclusions of Law. See Exhibit A. Any such

contact between the witnesses and the agents cannot reasonably constitute intimidation given that

OAG agents work on the premises where the grand suite is located and because both

jury

13

64. The foregoing constitutes the kind of arbitrary or oppressive government

conduct that is prohibited by the Pennsylvania and United States Constitutions. See Wallace, 97

A.3d at 320.

65. The order itself is intolerably vague: OAG employees and others are prohibited

from engaging in obstruction, intimidation, and retaliation in connection with the Special

Prosecutors investigation, but because the nature of that investigation is entirely secret, the

terms obstruction, intimidation, and retaliation exist in a vacuum that renders them utterly

cryptic.

66. The order supplies no discernable context for its prohibition; without such

context, a person subject to the order cannot know what action might constitute an infraction.

67. Such an order violates the notion of fundamental faimess in which our system of

justice is deeply rooted. See Commonwealth v. Burno, 94 A.3d 956, 966(Pa. 2014).

68. The order also infringes on the First Amendment rights of all affected.

69. An order issued in the area of First Amendment rights must be couched in the

narrowest terms that will accomplish the pin-pointed objective permitted by constitutional

mandate...the order must be tailored as precisely as possible to the exact needs of the case.

Carroll v. President and Com rs ofPrincess Anne, 393 U.S. 175, 183 (1968).

Attorney Fina and Attorney Costanzo are career prosecutors who have worked with, directed,

and supervised OAG agents on many occasions. The protective order constitutes an abuse of

discretion because any conduct of the agents cannot reasonably be construed as an act of

intimidation, obstruction, or retaliation. Moreover, the conduct of the agents cannot reasonably

be attributed to every employee of OAG. The Protective Order also constitutes an abuse of

discretion because there is no evidence that the agents supervisors were aware that they would

engage in intimidation, obstruction, or retaliation, or that they had engaged in such conduct in the

past, and so the conduct ofthe agents cannot reasonably be attributed to OAG as a whole.

14

70. The Supervising Judges protective order sweeps broadly and appears to

encompass speech relating to any person, subject, or event associated with the Special

Prosecutor s investigation.

71. The Supervising Judge has apparently banned communication both within and

without OAG regarding Fina, Costanzo, the J. Whyatt Mondesire proceedings, and other

unknown and unknowable matters relating to the investigation.

72. Because only the Supervising Judge and Special Prosecutor know the nature of

the investigation, the persons subject to the protective order must curtail virta11y all speech out

of fear that they will unwittingly commit a violation.

73. The protective order constitutes an abuse of discretion because the scope of the

order, in terms of both the persons subject to the order and the conduct covered by the order, is

far broader than necessary to protect any witness before the Grand Jury.

74. Finally, the protective order violates the Separation of Powers Doctrine of our

federal and state constitutions because it improperly infringes on OAGs ability to fulfill its

constitutional law enforcement mandate.

75. By way of illustration only, to the extent that perjury or obstruction of the

administration of law has been committed by witnesses or others in connection with the Special

Prosecutors investigation, the order purports to render OAG powerless to investigate and

prosecute those responsible.

76. To the extent that grand jury material has been leaked to the public from the

Special Prosecutors investigation in violation of grand jury secrecy rules, the order purports to

constrain OAG from investigating and prosecuting those responsible.

15

77. To the extent that witnesses in the Special Investigation may have committed

crimes or other misconduct unrelated 10 Notice 123, the order purports to eliminate OAG s

power to investigate andprosecute.

78. Finally, the Protective Order constitutes an abuse of discretion because persons

who violate the Order are subjected to the jurisdiction of the Court for purposes of a prosecution

under 18 Pa.C.S. § 4955, which permits, inter alia, prosecution for other, substantive offenses

and for contempt of court, and allows for a warrantless arrest, 18 Pa.C.S. § 4955(a)(1), (a)(2),

(b), and there is no substantial evidence supporting the exercise of such jurisdiction.

STATEMENT OF RELIEF SOUGHT

79. OAG requests this Court to enter an Order granting this Petition for Review and

vacating the Orders entered by the Supervising Judge of the Thirty-Fifth Statewide Investigating

Grand •Jury on August 27, 2014, September 17, 2014, and October 30, 2014.

16

CONCLUSION

WHEREFORE,the Pennsylvania Office of Attorney General, through Kathleen G. Kane,

Attorney General, respectfully requests that this Honorable Court enter an Order granting this

Petition for Review and vacating the Orders entered by the Supervising Judge of the Thirty-Fifth

Statewide Investigating Grand Jury on August 27, 2014, September 17, 2014, and October 30,

2014, or grant such other relief as the Court may deem appropriate and proper.

Respectfully submitted,

I4/THLEEN G.

Attorney General

Commonwealth ofPennsylvania

OFFICE OF ATTORNEY GENERAL

16t Floor-Strawberry

Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

17

VERIFICATION

The facts recited in the foregoing Petition for Review are true and correct to the best of

my knowledge and belief This statement is made with knowledge that a false statement is

punishable by law under 18 Pa. C.S. § 4904(b).

By:

KÁTHLEEN G. E

Attorney GeneralL/

Commonwealth of Pennsylvania

OFFICE OF ATTORNEY GENERAL

16 Floor-Strawberry Square

Harrisburg, PA 17120

(717)705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

18

EXHIBIT A

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANIA

IN RE:. : SUPREME COURT OF PENNSYLVANIA

NO. 176 M.D. MISC. DKT. 2012

THE THIRTY-FWE STATEWIDE

MONTGOMERY COUNTY

INVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

SEALING ORÐER

AND NOW, this 3Oth day of October, 2014, it ìs hereby ORDERED, that the

attached Order of October 3O , 2014 be filed under seal with the Clerk of Courts of

Montgomery County until further Order ofthis Court.

BY THE COURT:

WILLIAM R. CARPENTER, , J.

Supervising Judge

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA

NO.•176 M.D. MISC DKT.2012

THE THIRTY-FIVE STATEWIDE

MONTGOMERY COUNTY COMMON PLEAS

INVESTIGATING GRAND JURY : M.D. 1424-2014

• NOTICE NO.123

ORDER

AND NOW,this 3Oth day ofOctober, 2014, after a Hearing on the MOTION OF TFIE

OFFICE OF ATTORNEY GENERAL FOR RECONSIDERATION OF PROTECTIVE

ORDER DATED AUGUST 27, 2014 (as amended); said Motion is DENIED.

BY THE COURT:

WILLIAM R. CARPENTER, J.

Supervising Judge

Copies sent on October 30, 2014

By First Class Mail to:

Attorney General Kathleen Kane

Erik L. Olsen, Esquire

Laura A. Ditka, Esquire

Thomas E. Carluccio, Esquire

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: ¡ SUPREME COURT OF PENNSYLVANIA

: NO.176 M.D. MISC DKT.2012

THE TfflRTY-FIVE STATEWII)E

: MONTGQMERY COUNTY COOPLEAS

LNVESTIGAT1NG GRAND JURY : M.D. 1424-2014

• : NOTICE NO.123

FINDINGS OF FACT AND CONCLUSION OF LAW

FINDINGS OF FACT:

Prior to the issuance ofthe Protective Order:

1. The identity of anyone subpoenaecl by the Special Prosecutor was widely known

within the Attomey General s Office.

2. The time and location ofthose witnesses appearing before the Grand Jury was also

widely known within the Attomey Generals Office.

3. The Attorney General was also acquiring copies of the Notes of Testimony presented

by the Special Prosecutor to the• Grand Jury, in a situation where the Attorney

Generals Office was the subject ofthe investigation.

4. Grand Jury witnesses were confronted as they arrived to testify before the Grand

Jury. They were subjected to conduct of an intimidating nature.

5. Subsequent to the issuance ofthe Protective Order the above conduct has been

abated.

6. The Grand Jur operates within one of the office buildings of the Attorney General.

Grand Jury scheduling and issuance of subpoenas are necessarily done with the

clerical employees of the Attomey General. Accordingly the Attomey General and

her ernployees know when, where and which witnesses are appearing before the

Grand Jury.

7. Here the Attorney General and her employees are the subject of the investigation into

the leaking of secret Grand Jury information to the newspapers.

8. This Court has been furnished with substantial evidence, information and testimony

in carnera that fully supports the issuance of and the maintaining of the Protective

Order

9. The Cõurt conducted a hearing on the Attorney Generals Request to Vacate the

Protective Order on October 1 7, 201 4. At that hearing, the Attorney General called

only one witness who in no way provided any reason or just cause to vacate the

Protective Order.

10. The timing ofthe Right-to-Know Request naming Frank Fina and Mark Costanzo

among others were submitted to the Attorney General s Office at the time they were

subpoenaed andlor scheduled to testify.

1 1. In her Motion to Quash Grand Jury Subpoena the Attorney General through

privately retained counsel submitted that because she was not sworn to secrecy with

regard to prior Grand Juries ...she could not as a matter of law be in Contempt of

Court with regard 10 any disclosure related to that Grand Jury proceeding.

12. This Court finds based upon substantial evidence as a fact that:

A. The Protective Order is necessary to protect the secrecy ofthe Statewide

Investigating Grand Jury proceedings;

B. The Protective Order is necessary to maintain and ensure the integrity of

the Grand Jury process and;

C. The Protective Order is necessary and appropriate to deter Grand Jury

witness intimidation and retaliation.

CONCLUSIONS OF LAW:

The Protective Order is necessary and appropriate. The Attorney General has shown no cause to

vacate the Protective Order or to amënd it further.

BY THE COURT:

WILLIAM R. CARPENT

Supervìsing Judge

EXHIBIT B

IN TIIE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA

NO. 176 M.D. MISC. DKT.2012

THE THIRTY-F1VE STATEWIDE

MONTGOMERY COUNTY COMMON PLEAS

TNVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

SEALING ORÐER

AND NOW, thìs 27th day of August, 2014, it is hereby ORDERED, that the

attached Order of August 27, 2014 be filed under seal with the Clerk of Courts of

Montgomery County until further Order ofthis Court.

BY THE COURT:

WILLIAM R. CARPE ER, J.

Supervising Judge

IN TITE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA

NO.176 M.D. MISC DKT.2012

THE THIRTY-FIVE STATEW1DE

: MONTGOMERY COUNTY COMMON PLEAS

INYESTIGATING GRAND JURY : M.Ð.1424-2014

• : NOTICE NO. 123

ORDER

AND NOW,this 27th day ofAugust, 2014, it is hereby ORDERED,pursuant to

1 8 Pa.C.S. 4954 (relating to protective orders), that:

1. The Office ofthe Attorney General, except upon specific authorization by

this Court or the Special Prosecutor, shall refrain from any involvement in,

or ac;cess to, the investigative efforts ofthe Special Prosecutor.

2. Employees ofthe Office ofthe Attorney General shall refrain from

engaging in, or soliciting, any act ofobstruction, intimidation or retaliation

against any witness summoned by the Grand Jury in the Special

Prosecutor s investigation.

3. A11 transcripts of Grand Jury testimony shall be given only from the

stenographer or their einployer directly to the Supervising Judge and the

Special Prosecutor, no copy shall be given to the Attorney Generals

Office.

4. Employees ofthe Office ofthe Attorney General shall not have access to

transcripts ofproceedings before the Grand Jury or Supervising Judge,

exhibits, or other information pertaining to the Special Prosecutors

investigation. A11 information related to the work of the Special

Prosecutor shall be kept in the custody ofthe Special Prosecutor and

Supervising Judge.

5. Any person, including employees ofthe Office ofthe Attorney General,

who engage in any act of obstruction, intimidation or retaliation against a

witness sumrnoned by the Grand Jury in the Special Prosecutors

investigation may be prosecuted as set forth in 18 Pa.C.S. 4955 (relating

to violation oforders) and any other applicable provisions ofthe Crimes

Code ofPennsylvania.

6. The Special Prosecutor shall serve a copy of this Order upon the Office of

the Attorney General.

7. The contents ofthis Order are sealed, and shall not be disclosed (either

verbally or in writing) by the Office ofthe Attorney General to any

individual outside ofthe Office ofthe Attorney General under penalty of

contempt of court.

,-4

BY THE COURT:

WILLIAM R. CARPENTE J.

Supervising Judge

Copies sent on August 27,2014

By First Class Mail to:

Kathleen G. Kane, Pennsylvania Attorney General

Thomas E. Carluccio, Esquire

EXHIBIT C

INTHE:COURT OF COMMON .PLEAS

:MONTGOMERY COUNTY,.IENNSYLVANi:

IN.RE: S.UPREME COURT OF PENNSYLVANIA:

::

•:: NO. 176 M.D•. MISC. DKT.2012

THE THIRTY-FIFTH STATEWIDE

•: MOr.rLG.ÓMERY COUNTY COMMÕN PLEAS

INVESI IGÀT1NG GRAND JURY M D 2644-2012

NOTICENO;.123

ORDER

AN ÕW,thiš: dy f Sptenber, 20•1 4, it. iš:hrby ÕRiËREI t1t the.ãttched.,.

filed on Septernbr 2O4, bç and is herby sealed

WILLLAM R CARPENTER

Sperisìig iudgc

Thirtÿ-Fifth Stt.wid Iistiatin

Grand Jury

IN• THF.COURT OF COMMON PLEAS

MONTGOMFRY COUN[Y,PENNSYLVANIA

IN RE: SUPREMECOtJRT OF PENNSYLVANIA:

::

NO 176 M D MISC DKT 2012

THE THIRTY-FIVE STATEWIDE

MON I GOMERY COUN I Y COMMON PLEAS

;LNV.ESTIGA:TÏNG: GRAND JZURY : M.D.U1242O14

NOTI.CE NO.123

ORIER

AND•NOW.this i7.th day Öf.Septemhei, 20:14,. inthe exrise cfits discreti.õn aftr

an in camera l.earíng ancl findìng; o substantial eviderìcç, this Çõurt išsüed a Protectiie:

Oider;

And upon consideration of the Motion for Reconsideiation filed by the Office of

Attorney General relating to the Order of Court issued August 27, 2014, and after

Arguiïìent,

IT IS ORDERED that a furtheî heaiing ielatcd to the issuance ofa protective ordei

pursuant to 1.8. Pa.C.S. § .4954 shall be conducted on: a. date: to bç agreed upon by the

Attoiney General and the Special Froseutoi in the Charnbers ofthe Supervising Judge in

the::Grand Jury suite. The s.Llbject of the. hearing is :aJ:içgatiQfls of o.bstruction, witness

intirnidatiõn, and/orretaliatíon.

B THE. COURT:

WILLI.AM R. CARPENTR, J.

Supervising .Judge

Copies.sent n ::September 17,. 2014

By First Class Mail to

Thõms E..Carluçcio, Esquire

Janes B arker; E.squire

EXHIBIT D

IN THE COURT OF ÇOMMON.PLEÁS

.MONTGOMERY.COUNTY,.PENNSYLVANTA

IN RE•: : SUPREME C.OURT OF PENNSYLVÄNIA

. : NOlÌ.D.MIŠC..T.2Ó12

FHE THIRTY-FIFTH STATEWIDE

MONTGOMERY COUN1 Y COMMON PLEAS

JNVESTIGATING GRANI) JURY M D 2644-2()12

: NOTICE NO. 123.

OJDER

ANÙ NOW ths tL day• oSeptemher, 2Õ14,it ïsi. hrby Q11RED that th.attached.,

. . ..

filed on..Septembet _,2014,.be andis.herebÿ sca1eI.

WILLIAM...R..CAR.FENTER

Supervising Tudge

1 hirty-FifTh Statewide Investigating

Grand.Juiy

IN THE COURT OF COMMON PLEAS

MONTGOMERY COUNTY,PENNSYLVANLA

IN RE: : SU1REME COURT OF PENNSYLVANLA

: NO. 176 M.D. MISC DKT.2012

THE THIRTY-FIVE STATEWII)E

: MONTGOMERY COVNTY COMMON PLEAS

INVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

ORDER

AND NOW,this l7th day ofSeptember, 2014, in the exercìse ofitsdiscretion after

an iri camera hearing and a finding of substantial evidence, this Court issued a Protective

Ordei•;

And upon consideration of the Motion for Reconsideration filed by the Office of

Attorney General relating to the Order ofCourt issued August 27, 2014,

TT IS ORDERED that the Motion is GRANTED in part as to Paragraphs 2 and 5 of

said Order, and the following persons only shall be subject to Paragraphs 2 and 5 of said

Order:

11. Any person who has been sworn to Grand Jury secrecy.

2. Any person who has or had access to any Grand Jury information.

3. Any person associated with the J. Whyatt Mondesire proceedings and

investigation.

Additionally, Paragraph 7 of said Order is modified to allow comrnunication

regarding the Ordei• with counsel for a pei•son subject to the Order, for purposes of appeal,

and for any other, sirnilar purpose required by Iaw.

BYTHE COURT:

WLLIÄM.R. CAR.PE.N! ER, J.

Supervising Judgç

Cópies. s.ent on Septern.ber.17,2O .4

.ByFirstlCiass Mail to:

Thomas E. Carlucciõ, Esquire.:

Jarnes Barker, Esquire

EXHIBIT E

State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 1 of 5

Monday, Novernber 10, 2014 Mernber Logio: Sign ln l Register f g

JOhn Bolaris Forecast

61 0philadelphia, PA phU1ycom rseeh

l ,1

iSobrn

i9dtagobw

DMLYES

News Sports Entertainment I Business l Opinion l Food l LifestyielHealthlMore

BREAKING NEWS VIDEO VOICESIBLOGS PHILADELPHIA NEW .IERSEY POLITICS EDUCATION OPINION OBITUARIES NATIONIWORLO WEATHER TRAFFIC

LO1TERT

State A.G. probed Philly NAACP

leader Mondesires finances 5 years

ago

Tweet) f Redditj ErIlail)

1,tttest News Video

More nideos:

J. Vdryatt Mondesire. fomrer Preoiderrt oftlre PlIiladYlphia Chapter aftlle NAACP 011 Avgasl 10. 2000 (Daord Maialetli/

Slaffplrotogropher)

CHRIS BRENNAN, Daily News StafI Wr1terbrennac,phlllynews.com,

2I5-854-5973

LAST UPDATED: Tharsday. Jane 5. 2014. 9:45 PM

llost Viewett Nell.s Stories:

STATE ATTORNEY General Kathleen Teen pullsPhilly cop

DAILY NEWS Kane is reviewing a 2009 grand-jury from burning squad

car

investigation of J. Whyatt Mondesire, former head of the

NAACP in Philadelphia, and one of his employees, according

to documents obtained by the Daiiy News.

Bouncers shoot man

at Phila. strip club

Mondesires employee, Harriet Garrett, and her daughter

pleaded guilty in 2010 to stealing nearly $220,000 in state

grant money for a job-training program. Garrett was

sentenced to a minimum of Six months in jail and ordered to

Another teacher

pay restitution. Her daughter got 18 months probation. assaulted at Bartram

A 2009 memo written by then-Deputy Attomey General

VVilliam Davis Jr. says investigators uncovered what

appeared to be questionable spending of state money by Kanes car crash

Mondesire. derailed testimony

again

Kane, a Democrat, is now trying to determine what happened 1

with the Mondesire investigation. Gov. Corbett, a Republican,

was the attorney general at the time. Merchants say

cigarette tax is a

business-killer

MORE COVERAGE

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014

State A.G. probed PhiIly NAACP leader Mondesires finances 5 years ago Page 2 of 5

Pollce probe shootlng at upper Montco complex

Chrlstle chief of staff subpoenaed

Mondesire, 64, says he was never questioned and denies any

financial wrongdoing.

The 2009 Davis memo detailed for his bosses what had been

uncovered about Mondesire and Garrett, who worked at the

Philadelphia Sunday Sun, a weekly newspaper Mondesire

publishes.

A nonprofit called Next Generation Community Development

Corp., which is operated by Mondesire, held a state-

government grant•for a jobs-training program in 2004 and

2005, but handed it off to Garrett, who ran another nonprofit

called Creative Urban Education Systems, or CUES, _AIso on lhjlly.cr.in

according to the Davis memo. BUSINESS:

Pizza Hut revamp:

Mondesire was listed as chairman of the CUES board, the Curry crusts, spinach

topping

memo noted, while Garrett served as the treasurer for Next

Generations board.

Davis wrote his memo to then-Chief Deputy Attorney General HEALTH:

The 5 best exercises

Frank Fina and then-Senior Deputy Attorney General E. Marc for runners

Costanzo.

Corbett, as attorney general, named Fina in 2006 to head a

new public-corruption unit and Costanzo to work on cases for SPORTS:

Trat,eI Deals the unit in the Philadelphia region. New winter agenda

for Phillies

Fina and Costanzo now work in a similar unit for District

Attorney Seth Williams.

ln the memo, Davis wrote: ENTERTAINMENT:

Stcphen A. Smith to

* Next Generations bank-account records, obtained with broadcast from

a UPenn

S160-8185 - SC: 4-Star grand-jury subpoena, showed deposits of $1.3 million in

Hilton Head lsland Resort,

Save 30% government grants in a one-year period.

See all travel deals F000:

Another $521,000 in the account came from political Watch Bar Rescue

LISTEO IIYTRAVEIJOO campaigns, rent payments and the intermingling of money make over a South St.

SOron tnre,. tOes eadoorral bar

from the Sunday Sun, which is owned and operated by

Mondesire, the memo said.

lVeckly Circulars * Next Generation paid $2,273 to the Philadelphia Club, .IOBS:

a

How should I manage

private and exclusive club in Center City. my workload while

Im on vacation?

* Next Generation spent tens of thousands, writing checks

to

pay Mondesires American Express bill for clothes, food,

lodging gas and entertainment and a loan from Mellon Bank. Sfoy Corrrrecied

RACK ROOM SHOES:

There were also checks written to Mondesire and to cash. Gel lhe tatest PhiIly.co,n Oa:Iy Headl,nes nelesletler

Fall for Bootsl delieered to yoLn email. Sign up no.v!

VALILI UNVIL NOV 19 * Next Generation wrote checks for $169,960 Charles

to and

Enter emall address 10 s,gn up

Claudia Tasco and their company, C&C Construction.

1 (Charles Tasco is the son of City Councilwoman Marian Atreody a ph,lly.corn me,sber? O Yes O No

Tasco, a friend and political ally of Mondesires for more than

three decades.)

BUYTWO 3 DAILY NEWS

* $6,431 in CUES money was given Mondesire

TARGET USA: to for what

Buy Two, Get One Free Garrett called consulting. That type of expense was not

All Video Games

THIS ÆEK ONLY allowed, according to the rules of the grant. FOR THËCÓMPLETE

DAILY NEWS EXPERIENCE,

See MOÆ Circulars. * ln various correspondence between Garrett and

Mondesire

discovered by investigators, she questioned payments of

iOlN OR LOGIN NOW>

more than $70,000 he made 10 Claudia Tasco.

* CUES paid $1,099 for health insurance for

Mondesire.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014

State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 3 of5

Davis wanted to question Mondesire - and possibly

subpoena him for sworn grand-jury testimony - about Garrett,

CUES and Next Generation.

Never questioned

Mondesire, a former /nquirer reporter who served as the top

aide 10 the Iate U.S. Rep. Bill Gray, said no one from the

A.G.s Office ever questioned him.

We didnt use any money for personal gain, Mondesire said.

He said that he has not seen the A.G. Offices documents and

twice declined an offer from the 0a11y News to review them.

Mondesire said C&C Construction worked on four properties,

including the NCP headquarters and his newspaper office,

where the Next Generation non-profit is also located.

We bought supplies with my American Express card for

construction, he said.

They never asked me a single question back in 2009. We

rehabbed the buildings. We spent money buying stuff for the

buildings, construction and paying off developers.

Garrett declined to comment about the investigations. Her

daughter did not respond to requests for comment.

The May 2010 news release about Garretts arrest featured

Corbett laying out the charges.

Corbett did not respond this week to two questions: Was he

briefed on the Mondesire investigation and did he play a role

in deciding what happened with that probe?

Mondesire was suspended by the NAACPs national

headquarters in April after he feuded publicly with board

members about the finances of the locaf chapter and Next

Generation.

Those board members - Sid Booker, Donald Ducky Birts

and the Rev. Elisha Morris - also were suspended.

Booker and Morris, who say they are still Next Generation

board members, are now asking a Common Pleas judge to

forœ Mondesire to show them the nonprofits financial

records.

As a judge considers that request, Kanes staff is reviewing

what became ofthe 2009 Mondesire probe.

David Peifer, who heads the A.G.s Bureau of Special

lnvestigations, on March 21 interviewed Michael Miletto, the

special agent who investigated Garrett and Mondesire.

The Dally News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next Generations

bank account, the transcnpt shows.

When did that, l found that there was a whole bunch of

money that appeared to me to be donations to the NAACP,

not [Mondesire], and they were going into Next Generations

account and they were being used for [Mondesires] lifestyle -

much of it, Miletto told Peifer.

http://www.philly.com/philly/news/20 140606_State_A_G probed_Philly... 1 1/10/2014

State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 4 of5

Miletto said he was taken offthe case after Fina and

Costanzo were told about the probe, according to the

transcript.

Miletto said criminal activity was just ignored after that. He

added that two accountants whohad worked for Mondesire

had provided taped statements, with one asking for immunity

and the other asking for protection.

Fina and Costanzo declined to comment about the Mondesire

investigation, citing the secrecy of grand-jury proceedings.

Davis, now in private practice, also declined to comment,

citing the same restriction.

Miletto, who still works for the A.G.s office, also declined to

comment.

Peifer referred questions to Kanes communications staff.

J.J. Abbott, a spokesman for Kane, declined to comment.

The Kane-Fina feud

Fina and Costanzo have a complicated and controversial

relationship with Kane.

Kane criticized Corbetts tenure as attorney general when she

ran for office in 2012, specifically targeting the Penn State

child-abuse scandal that sent former assistant football coach

Jerry Sandusky to prison.

Kanes staff is now conducting an extensive review of that

investigation.

Fina led the Sandusky probe.

Kane, orr Feb. 5, issued a statement noting that her offices

Sandusky review had been underway for one year, adding

that delays in the undertaking will be described in more detail

when the report is made public.

A month later, the Inquirerreported that Kane declined to

pursue an investigation previously led by Fina and Costanzo,

starting in 2010, that used Philadelphia lobbyist Tyron Ali as a

confidential informant to tape conversations with four Philly

state representatives and a former Trafflc Court judge. On the

tapes, the representatives and judge accept cash or gifts from

Ali.

Kane has said Fina dropped 2,033 criminal counts against Ali,

who had been charged with stealing $430,000 from a state

program, 24 days before she was swom into office.

She said that extraordinarily lenient deal crippled the

chance ofthis case succeeding in prosecution.

Fina, in a letter published by the week afterthe first

lnquirera

story ran, called on Kane to explain her decision.

The published a letter that day from Finas boss,

lnquireralso

Wlliams, critical of Kane.

Kane eventually turned over the Ali case file to Wlliams, who

is now examining whether charges can be brought against the

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014

State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 5 of 5

four representatives and the Traffic Court judge, who is

currently on trial in an unrelated federal corruption case.

On Twitter: @ChristtrennanDN

Blog: ph.ly/PhillyClout.com

(JIRIS ItRI(NNAN

Duily Ncws SlajjWritcr brennac@phillynews.com,

2l5-854-593

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http://www.philly.com/philly/news/20140606_State_A_G probed_Phil1y... 1 1/10/2014

CERTIF1CATE OF SERVICE

I hereby certify that I am this day serving one copy of the foregoing Petition for Review

upon the persons and in the manner indicated below:

Via U.S. First-Class Mail,

Postage pre-paid:

The Honorable William R. Carpenter Thomas E. Carluccio, Esquire

Court of Common Pleas of Montgomery County Plymouth Greene Office Campus

Montgomery County Courthouse 1 000 Germantown Pike, Suite D3

P.O.Box3ll Plymouth Meeting,PA 19462-2484

Norristown, PA 1 9404-03 1 1 (484)674-2899

(610)278-5902 (Special Prosecutor)

(Supervising Judge)

Ann Thornburg Weiss, Clerk of Courts

Montgomery County Clerk ofCourts Office

P.O. Box3ll

Norristown, PA 19404-031 1

(610)278-3346

(Clerk of Courts)

By:

k,THLEEN G. AE

Attorney Gener

Commonwealth òfPennsylvania

OFFICE OF ATTORNEY GENERAL

16th Floor-Strawberry Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

ln Suprerfle Court

O 2O14

ov

19

Ned in Suprome Cour

•M.D. Misc.Dkt.

NOV 1 0 2014

1 71 2014

UNSEALED PER ORDER OF

THE COURT DATED

AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF

ATTORNEY GENERAL, No. MM 2014

Petitioner

V.

SUPERVISING JUDGE OF THE FILED UNDER SEAL

THIRTY-FIFTH STATEWIDE

INVESTIGATING GRAND JURY,

Respondent

MOTION FOR LEAVE TO FILE PETITION FOR REVIEW

WITH ATTACHED BRIEF UNDER SEAL

TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF

PENNSYLVANIA:

AND NOW, comes the Pennsylvania Office of Attorney General by Kathleen G. Kane,

Attorney General of the Commonwealth of Pennsylvania who files this Motion for Leave to File

its Petition for Review with attached brief in support under seal, and,in support thereof avers as

follows:

1. Concurrent with the filing of this Motion, Petitioner, Office of Attorney General

of the Commonwealth of Pennsylvania("OAG") by Kathleen Kane, Attorney General, is filing a

Petition for Review and supporting brief pursuant to 42 Pa.C.S.A. § 722(5) and Pa.R.A.P.

3331(a)(3).

RecelvejIn Suprerne Court

NO V 11 0 2014

2. Of necessity, the petition recites matters occurring before the Grand Jury and/or

matters subject to Sealing Orders signed by the Supervising Judge of the Thirty-Fifth Statewide

Investigating Grand Jury.

WHEREFORE, the Pennsylvania Office of Attorney General, through the Attorney

General, respectfully requests that this Honorable Court enter an Order granting this Motion for

Leave to File Petition for Review with Attached Brief under Seal and sealing this Motion, the

Petition for Review and supporting brief pursuant to 42 Pa.C.S.A. § 722(5) and Pa.R.A.P.

3331(a)(3), and any future documents filed in this matter pending further Order of Court.

Respectfully submitted,

kATHLEEN G

Attorney Gene

Commonwealth of Pennsylvania

OFFICE OF ATTORNEY GENERAL

16th Floor-Strawberry Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

2

VERIFICATION

The facts recited in the foregoing Petition for Review are true and correct to the best of

my knowledge and belief. This statement is made with knowledge that a false statement is

punishable by law under 18 Pa. C.S. § 4904(b).

By:

k4THLEEN G.

Attorney Genera7<

Commonwealth o ennsylvania

OFFICE OF ATTORNEY GENERAL

16th Floor-Strawberry Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

3

CERTIFICATE OF SERVICE

I hereby certify that I am this day serving one copy of the foregoing

MOTION FOR LEAVE TO FILE PETITION FOR REVIEW

WITH ATTACHED BRIEF LINDER SEAL

upon the persons and in the manner indicated below:

Via US. First-Class Mail,

Postage pre-paid:

The Honorable William R. Carpenter Thomas E. Carluccio, Esquire

Court of Common Pleas of Montgomery County Plymouth Greene Office Campus

Montgomery County Courthouse 1000 Germantown Pike, Suite D3

P.O. Box 311 Plymouth Meeting,PA 19462-2484

Norristown, PA 19404-0311 (484)674-2899

(610)278-5902 (Special Prosecutor)

(Supervising Judge)

Ann Thornburg Weiss, Clerk of Courts

Montgomery County Clerk of Courts Office

P.O. Box 311

Norristown, PA 19404-0311

(610)278-3346

(Clerk of Courts)

By: WO

KATHLrEN G. KANE

Attorney General

Commonwealth of Pennsylvania

OFFICE OF ATTORNEY GENERAL

16th Floor-Strawberry Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

Date: November 10, 2014

Received in Supreme COO

NOV 0 2094

4

Hied in Supreme Couo

M.D.MI=Ðkt NOv i 0 2014

V171 2014

UNSEALED PER ORDER

OF THE COURT DATED

IN THE SUPREME COURT OF PENNSYLVANIA

AUGUST 26, 2015

MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF

ATTORNEY GENERAL, No. MM 2014

Petitioner

V.

SUPERVISING JUDGE OF THE FILED UNDER SEAL

THIRTY-FIFTH STATEWIDE

INVESTIGATING GRAND JURY,

Respondent

BRIEF IN SUPPORT OF PETITION FOR REVIEW

KATHLEEN ?. y.ANE

Attorney Genesar

Commonwealth of Pennsylvania

Office of Attorney General

16th Floor, Strawbeny Square

Harrisburg, PA 17120

(717) 787-6348

Date: November 10, 2014

1101:0116110Summe cow

NOv i 0 2014

1

I. INTRODUCTION

The Pennsylvania Office of Attorney General ("OAG") respectfully requests that this

Honorable Court review, and ultimately vacate, the determination of the Supervising Judge of the

Thirty-Fifth Statewide Investigating Grand Jury("the Supervising Judge")encompassed by the four

related and interconnected Orders dated August 27,2014,September 17,2014,and October 30,2014

(collectively, "the protective order"). As addressed more fully below, the protective order

egregiously violates the state and federal constitutional rights ofhundreds ofindividuals,contravenes

statutory law,reflects an outrageous manipulation and exploitation ofthe Commonwealth's statutory

grand jury process, and ignores the direct and unambiguous mandate previously communicated by

this Court to the Supervising Judge to conduct a meaningful evidentiary hearing on the question of

whether the protective order is necessary and proper.

The protective order violates the state and federal due process rights of the Pennsylvania

Attorney General, hundreds of OAG employees, and innumerable people not affiliated with OAG.

Although the order purports to apply to "any person" who "has been sworn to grand jury secrecy,'"'

has or had access.to any grand jury information," and/or is "associated with the J. Whyatt Mondesire

proceedings and investigatioe ("the affected persons"), notice ofthis broadly-sweeping protective

order was provided only to the governmental agency OAG. The order proscribes behavior and

threatens criminal sanctions upon countless unidentified individuals both within and without OAG,

yet not a single one of them has been served with notice in their capacities as individuals.

The protective order was conceived and initially filed in a remarkably partisan fashion, the

product of a one-sided in camera ex parte proceeding that deprived those who were targeted and

eventually subjected to the order -- many of them career officers of the Court sworn to uphold the

law -- of any opportunity to be heard on the explosive allegations that provoked the Supervising

2

Judge to enter the order. Rather than fully develop a factual record in a disinterested and even-

handed fashion, the Supervising Judge inexplicably accepted the covert allegations of OAG's

accusers at face value.

Although the Supervising Judge subsequently acquiesced to OAG's request for a hearing

after the fact, the process eventually afforded to OAG was hollow and meaningless. OAG was

prohibited from accessing the transcript ofthe initial ex parte proceeding and was denied knowledge

ofthe specific factual allegations which formed the basis for the protective order. The deprivation of

this information by the Supervising Judge prevented OAG from proceeding in any meaningful way:

it had no way of determining precisely what allegations had been leveled, whether rebuttal was

necessary, and if so what witnesses to call and what questions to ask.

At the "hearing," the Supervising Judge also precluded OAG from calling its accusers as

witnesses and probing the nature, veracity, and credibility of their accusations. The Judge rejected

OAG's attempt to subpoena and question ajournalist with first-hand personal knowledge regarding:

(1) the reason for the timing of the Right-to-Know Act(RTKA")requests relating to the email

accounts of Frank Fina("Fine)and Marc Costanzo ("Costanzo")submitted to OAG which would

have contradicted the ex parte testimony of Frank Fina and Marc Costanzo that the release ofemails

was a retaliatory action against both men by the Office of Attorney General. Since this particular

testimony would have been probative as to whether there was any connection between the RTKA

requests and the testimony ofFina and Costanzo in Notice No. 123,the Supervising Judge's decision

is incomprehensible.I

I The October 30,2014 Order specifically relies on the factual finding that,"The timing ofthe Right-

to-Know Request naming Frank Fina and Mark Costanzo among others were submitted to the

Attorney General's Office at the time they were subpoenaed and/or scheduled to testify." (10/30/14

Order at 1-2).

3

No constitutionally adequate hearing has ever been conducted by the Supervising Judge. For

unknown reasons, he has refused to allow meaningful testing of the allegations cleverly and

cowardly advanced by accusers who prefer to operate in the shadows, trafficking in calumny and

muckraking rather than testifying forthrightly in the light of day.

The order itself is intolerably vague: OAG employees and others are prohibited from

engaging in "obstruction," "intimidation," and "retaliatioe in connection with the Special

Prosecutor's investigation, but because the nature ofthat investigation is entirely secret, the terms

"obstruction," "intimidation," and "retaliation" exist in a vacuum that renders them utterly cryptic.

The order supplies no discernable context for its prohibition, rendering the prohibition itself both

incomprehensible and perilous for those caught in its web. Without context, a person subject to the

order cannot know what action might constitute an infraction.

Not only does this situation violate the notion offundamental fairness, but it infringes on the

First Amendment rights of all affected. The protective order is currently so broad that it

encompasses speech by the persons affected relating to any person, subject, or event associated with

the secret investigation. Without appropriate constitutional analysis orjustification, the Supervising

Judge has apparently banned communication both within and without OAG regarding Fina,

Costanzo, the J. Whyatt Mondesire proceedings, and other unknown and unknowable matters as it

relates to the investigation. Because only the Supervising Judge and Special Prosecutor know the

nature ofthe investigation, the persons affected must curtail virtually all speech out offear that they

will unwittingly violate the protective order.

Finally, the protective order violates the Separation ofPowers Doctrine of our federal and

state constitutions because it improperly infringes on OAG's ability to fulfill its constitutional law

enforcement mandate. By way ofillustration only: (1)to the extent that perjury or obstruction ofthe

4

administration of law has been committed by witnesses or others in connection with the Special

Prosecutor's investigation, the order purports to render OAG powerless to investigate and prosecute

those responsible;(2)to the extent that grand jury material has been leaked to the public from the

Special Prosecutor's investigation in violation of grand jury secrecy rules, the order purports to

constrain OAG from investigating and prosecuting those responsible; and (3) to the extent that

witnesses in the Special Investigation may have committed crimes or other misconduct unrelated to

Notice 123, the order purports to eliminate OAG 's power to investigate and prosecute.

Ultimately, the protective order turns the law on its head. Contrary to the averments ofthe

Special Prosecutor, the Attorney General never has and never will seek to release pornographic

emails "as retaliation against certain witnesses who have testified before the grand jury." The

Attorney General's decision to serve the public interest by identifying egregious prior misconduct

within OAG and the identities ofthose public servants involved has absolutely no nexus whatsoever

to the Special Prosecutor 's investigation. In truth, the protective order is the product of the

maliciously ingenious,craven,and contemptible(and so far successful)efforts ofFina and Costanzo

to cynically manipulate and exploit the Supervising Judge,the Special Prosecutor,and the grand jury

process in order to avoid being held accountable for misconduct and violation of the public trust

during their tenures at OAG. To date, OAG has been denied a fair hearing on this point.

II. STATEMENT OF JURISDICTION

This Court has jurisdiction over the petition for review pursuant to 42 Pa.C.S.A. § 722(5)

and Pa.R.A.P. 3331(a)(3).

III. SCOPE AND STANDARD OF REVIEW

Appellate court review ofa protective order entered pursuant to 18 Pa.C.S. § 4954 examines

whether the court that entered the order abused its discretion. See Commonwealth v. Sandusky, 70

5

A.3d 886, 897 n.9(Pa. Super. 2013). An abuse of discretion will be found when a lower court"has

reached a conclusion which overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Commonwealth v.

Alicia, 92 A.3d 753, 760(Pa. 2014)(citation omitted).

To the extent that this case presents a question oflaw, such as the requirement ofa hearing,

the Court's standard of review is de novo and the scope of review is plenary. Id.

IV. TIMELINE

Jan 15, 2013 — Kathleen G Kane is sworn in as Attorney General of Pennsylvania.

February 4, 2013 - Attorney General Kane announces the appointment of Professor Geoffrey

Moulton to lead an internal after action review of the prosecution of Gerald Sandusky.

October 2013 — Special Agent Braden Cook devises a complex process to recover Office of

Attorney General emails related to the Sandusky case to aid in the review of the Sandusky

prosecution.

November 2013 — The email recovery process begins.

February 5, 2014 — Press article in the Center Daily Times reveals that emails thought to be

permanently removed are recovered.

March 2014 - Frank Fina orally demands all of his emails, those related and unrelated to the

Sandusky prosecution that were generated during the Sandusky investigation and prosecution time

frame be recovered and turned over to him.

March 11,2014 — Frank Fina serves second motion for Miscellaneous Reliefon Office of Attorney

General demanding access to all of his own emails and asks to be informed prior to the Office of

6

Attorney General responding to any Right to Know Requests that name him.

March 21, 2014 — Special Agent In Charge Peifer after being contact by Special Agent Milletto,

interviewed and produced a report of said interview.

March 22,2014 — The email recovery process is completed.

May 29,2014 — Special Prosecutor appointed to investigate Office ofAttorney General for leak ofa

2009 Grand Jury case.

June 6,2014 - Philadelphia Daily News article published reporting on OAG review of 2009 grand

jury investigation. See Exhibit C.

June 9,2014 - Braden Cook ofOffice ofAttorney General begins the process ofculling Frank Fina's

pornographic emails. When completed the Office of Attorney General makes available to Mr. Fina

and his counsel all ofthe recovered emails that they previously sought a court order to obtain. To

date neither Mr. Fina nor his counsel has reviewed the emails.

June 9 — 10, 2014(approximately)- Moulton Review of the Sandusky Case turned over to Frank

Fina.

June 20,2014 — News reports the Attorney General will release Moulton Review on June 23,2014.

June 23, 2014- Moulton Review of the Sandusky Case released to the Public.

July 7,2014 — August 13,2014 - Office of Attorney General receives Right to Know Requests from

the Pittsburgh Tribune Review, Philadelphia Daily News, The Morning Call and the Philadelphia

7

Inquirer for copies ofemails depicting sexually explicit images and/ or videos exchanged by current

and former staff of the Office of Attorney General.

August 26,2014 - Frank Fina and Marc Costanzo testify before Grand Jury.

August 27,2014 — Following an in camera ex parte hearing Frank Fina and Marc Costanzo obtain a

Protective Order from Judge Carpenter against the Office of Attorney General.

August 28, 2014 — Frank Fina makes a Motion for Protective Order with Judge Krumenacker

prohibiting the Office of Attorney General from responding to right to know requests as the emails

were discovered during an internal review and are protected by the secrecy provisions of the

Investigating Grand Jury Act.

August 31, 2014 - Article in Philadelphia Inquirer identifies OAG as the subject of the Special

Prosecutor's investigation of grand jury leaks. See Exhibit B.

September 16,2014 — Office of Attorney General moves for reconsideration ofthe Protective Order

and argument on the motion was conducted that day.

September 17,2014 — Supervising Judge Carpenter modifies the Protective Order but and grants a

hearing but fails to set a date for the hearing.

September 19, 2014- Judge Krumenacker determines he does not have jurisdiction to block the

release of the emails and lifts the stay and unseals the Opinion and Order.

September 19, 2014 — Office of Attorney General in the instant matter files an Application for

Special Relief Pursuant to 42 Pa.C.S. §§502,726, Pa R.A.P. 3309.

8

September 23,2014- Office of Attorney General releases emails for all involved with the exception

of Frank Fina and Marc Costanzo who had obtained a protective order.

October 2,2014-Supreme Court decides issue is moot as Supervising Judge has issued an order for a

hearing and will await results of said hearing.

October 6, 2014 — Office of Attorney General asks Supervising Judge to allow subpoenas for

complaining witnesses Fina and Costanzo and that request is denied. Judge Carpenter enters an order

denying the Office of Attorney General's request to subpoena Marc Costanzo and Frank Fina.

October 8,2014 — Hearing regarding Protective Order. Hearing cancelled rescheduled for October

9, 2014.

October 9,2014 — Hearing for Protective Order again cancelled rescheduled for October 17, 2014.

October 14,2014 - Article in Philadelphia Inquire outlines Grand Jury investigation and discusses

protective order with information that appears to be from the in camera ex parte hearing. The

information referenced in the article was not made available to Office ofAttorney General, however,

was clearly available to the news reporter. See Exhibit D.

October 16,2014 — Office of Attorney General contacted by Supervising Judge and told to withdraw

subpoena that had been issued for October 17, 2014 hearing. OAG serves subpoena for reporter

Brad Bumsted ofthe Pittsburgh Tribune-Review for the purpose ofdeveloping the record in Notice

123 to demonstrate the falsity ofthe allegations of Fina and Costanzo as the basis for the protective

order. Contrary to published reports, the purpose ofthis was not to determine the reporter's source

of information but rather to establish the lack of candor of Fina and/or Costanzo in representations

apparently made to the Supervising Judge and Special Prosecutor. See Exhibit E.

October 17, 2014 - OAG withdraws a subpoena for reporter Brad Bumsted of the Pittsburgh

Tribune-Review.

9

October 17, 2014 — Hearing on Protective Order held in Montgomery County. Office of Attorney

was denied access to complaining witnesses, transcript of in camera ex parte hearing or Special

Prosecutor.

October 30, 2014 - Supervising Judge issues Order with accompanying Findings of Fact and

Conclusions ofLaw denying motion for reconsideration ofamended protective order and rendering

final protective order as amended.

November 3,2014 - OAG receives October 30, 2014 Order which was sent via regular mail rather

than email as is customary.

November 9,2014 - A Philadelphia Inquirer article is published which, relying on "sources" and

"people with knowledge of the case", outlines dates the Attorney General had been scheduled to

appear before the Grand Jury and the reason(s) she was unable to appear. See copy of article,

attached as Exhibit C. This story, along with others referenced above, purports to contain

information occurring "before the Investigative Grand Jury" and, therefore, is in violation of

Grand Jury secrecy rules.

V.PROCEDURAL HISTORY

On June 6, 2014, the Philadelphia Daily News published an article describing a review ofa

prior Grand Jury investigation by the Pennsylvania Office ofAttorney General. The article indicated

that the Daily News had obtained a copy ofa 2009 internal memorandum drafted by a former Deputy

Attorney General regarding the merits of potential charges to be filed and a copy ofthe transcript of

an interview of the lead Agent on the investigation dated March 21, 2014. While neither item is

itself a matter occurring before the Grand Jury, the documents may have recited or summarized

matters occurring before the Grand Jury. The lower court, as Supervising Judge ofthe Thirty-Fifth

Statewide Investigating Grand Jury, appointed a Special Prosecutor to investigate any leak ofGrand

10

Jury information. This investigation would use the resources of the Thirty-Fifth Statewide

Investigating Grand Jury. The Office of Attorney General has attempted to cooperate in the

investigation to the best of its ability, despite the fact that current and/or former members of the

Office may be targets of the investigation.

On August 27,2014,the Court issued a protective order pursuant to 18 Pa.C.S. §4954. The

Office ofAttorney General was not informed ofthe allegations that gave rise to the Protective Order

before it was issued, nor was the Office given the opportunity to address or contest the allegations in

this first instance. Section 4954 permits lajny court with jurisdiction over any criminal matter" to

issue a protective order "after a hearing and in its discretion, upon substantial evidence." The Order

directs the Office of Attorney General to refrain from involvement in the investigative efforts ofthe

Special Prosecutor. It requires all employees ofthe Office of Attorney General, approximately 800

people, to refrain from engaging in or soliciting obstruction, intimidation or retaliation against any

witness summoned by the Grand Jury and cautions that anyone who engages in such conduct may be

prosecuted under 18 Pa.C.S. §4955 and/or any other applicable provision ofthe Crimes Code. The

Order prohibits the Office of Attorney General from receiving transcripts of testimony before the

Grand Jury and bars employees of the Office of Attorney General from access to transcripts,

documents,or other information related to the Special Prosecutor's investigation. Finally, the Order

prohibits the disclosure of its contents to anyone outside the Office, under penalty of contempt.

Based on the possible repercussions ofthe Protective Order, the Office of Attorney General

filed a motion for reconsideration that was granted, in part.

As amended by Orders of Court issued September 17, 2014, the Protective Order allowed

for the scheduling ofa hearing on matters as to which the Court had already made findings pursuant

to an ex parte "hearing." The Protective Order, as amended, also purports to limit the number of

11

persons subject to the Protective Order to any person subject to Grand Jury secrecy, any person who

has or had access to Grand Jury information, and any person involved in a specified investigation.

Because the amendment of the Protective Order did not provide adequate relief, in that the people

covered by the Protective Order still would number in the hundreds and the Office of Attorney

General still was not provided with fair notice as to the allegations on which the Protective Order is

based, the Office of Attorney General sought relief in the Supreme Court of Pennsylvania. The

Supreme Court dismissed the Petition as moot based on the scheduling ofa hearing and directed that

the hearing take place. On October 17, 2014, the Office of Attorney General and the Special

Prosecutor appeared before the Supervising Judge for the "hearing"as directed by the Supreme Court

and as required by 18 Pa.C.S. § 4954:This"hearine took place nearly two months after issuance of

the Protective Order.

The Office ofAttorney General attempted to comply with the mandate ofthe Supreme Court

and engage in a hearing as understood under the plain meaning ofthe word "hearing." To that end,

the Office of Attorney General asked leave ofthe Court to subpoena Mr. Fina and Mr. Costanzo to

ascertain the nature and extent of the intimidation that they allege. That request was denied. It

should be noted that the OAG only asked leave to subpoena those witnesses as they are the purported

"victims" ofintimidation leading to the protective order and the OAG did not want any service to be

perceived as intimidation.

When the Court refused the Office ofAttorney General the opportunity to explore the alleged

intimidation with the complaining witnesses, the Office of Attorney General asked the Court for a

copy ofthe in camera hearing transcript. Again the Court denied the request. It should be noted that

the Court attached the transcript in a pleading to the Supreme Court, who then forwarded it to the

Office of Attorney General. When the Court discovered that the Office of Attorney General had

12

received the transcript, two days after its receipt, the Office of Attorney General was ordered to

return the copy or delete it, and was prohibited from talking about or using the contents of the

transcript. The Office of Attorney General was essentially ordered to wipe clean the minds of

anyone who had seen the transcript and to engage in a pretense that the contents were unknown. As

the lawyers representing the Office of Attorney General in the hearing had not read the transcript,

they were thus precluded from ascertaining the factual basis ofthe Order. The Court denied a motion

to review the transcript.

Having been denied the opportunity to question the complaining witnesses and being denied

the opportunity to review a transcript of the prior hearing, the Office of Attorney General was

working in a factual vacuum. The last available option was to ask the Court ifthe Office ofAttorney

General could call Special Prosecutor Carluccio, who was present for the in camera hearing and

presumably heard the testimony of Fina and Costanzo. The Office of Attorney General was hoping

that through him they could learn the nature of the facts that resulted in a Protective Order. Again

the Court denied the request by the Office of Attorney General.

Given the failure ofthe lower court to furnish any relief or even an appropriate hearing,the

Office of Attorney General believes that it has no alternative other than to petition this Court for the

necessary and appropriate relief, i.e. the vacation of the lower courts August 27, 2014 Protective

Order.

VI. ARGUMENT

For the reasons set forth belo the Office of Attorney General submits that the "hearing"

conducted and the Protective Order entered by the lower court are in violation ofnot only the federal

and state Constitutions, but also the statute granting the authority for issuance of the Protective

Order.

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1. The Protective Order violates the due process rights of the Office of Attorney

General and hundreds ofindividuals because no constitutionally adequate hearing has

been held.

On August 27, 2014, without notice to the Office of Attorney General or any individual

within that Office, the lower court issued the aforementioned Protective Order against the Office

of Attorney General. This Order covers literally hundreds of employees of the Office of

Attorney General as well as other individuals outside the office and unabashedly violates the

fundamental First Amendment rights of those subject to it, despite the complete absence of any

showing that these restrictions are truly necessary to further a compelling state interest. The net

result of this Order is to plunge the entire staff of the Commonwealth's flagship law enforcement

agency into a nightmarishly bizarre limbo wherein they are not only prohibited from discussing

matters of great importance to themselves, the Office, and the public, but are deprived of any

meaningful guidance on what they may or may not do under the terms of the Order that restricts

them, because they are prohibited even from discussing the very Order to which they are subject,

under pain of contempt.

It is the position of the Office of the Attorney General that the Protective Order is

unlawful because it was issued prior to any hearing and without notice to the Office of Attorney

General or to any of the hundreds of individuals affected by the Order, including individuals who

are not even employed by the Office of Attorney General. Also, there is no substantial evidence

that any person in the employ of the Office of Attorney General intimidated any witness who

testified before the Grand Jury. Finally it is the contention of the Office of the Attorney General

that it was the clear intention of the Supreme Court that a hearing was necessary in order to flush

out the facts and that the "hearing" afforded by Judge Carpenter was a hearing in name only and

14

the Office of Attorney General was prohibited from conducting a meaningful review of the facts.

The statutory provision on which the Court relied reads as follows:

Any court with jurisdiction over any criminal matter may,

after a hearing and in its discretion, upon substantial evidence, which

may include hearsay or the declaration of the prosecutor that a

witness or victim has been intimidated or is reasonably likely to be

intimidated, issue protective orders, including, but not limited to, the

following:

(1) An order that a defendant not violate any provision of this

subchapter or section 2709 (relating to harassment) or 2709.1

(relating to stalking).

(2) An order that a person other than the defendant, including, but

not limited to, a subpoenaed witness, not violate any provision ofthis

subchapter.

(3) An order that any person described in paragraph (1) or (2)

maintain a prescribed geographic distance from any specified witness

or victim.

(4) An order that any person described in paragraph (1)or(2) have

no communication whatsoever with any specified witness or victim,

except through an attorney under such reasonable restrictions as the

court may impose.

18 Pa.C.S. § 4954.

By its terms, § 4954 grants to a court with jurisdiction the discretion to enter a protective

order and to decide the terms of a protective order, such that review of a protective order would be

for an abuse ofdiscretion. See Commonwealth v. Sandusky,70 A.3d 886,897 n.9(Pa. Super. 2013).

"An abuse of discretion will not be found based on a mere error ofjudgment, but rather exists where

the court has reached a conclusion which overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will."

Commonwealth v. Alicia, 92 A.3d 753, 760(Pa. 2014)(citation omitted).

Even assuming that such a restrictive Order could properly be entered under the appropriate

15

circumstances,it would surely be necessary to scrupulously follow the most stringent procedures to

ensure that the Order was truly necessary and appropriate. As a matter offundamental procedural

due process, an individual may not be deprived of a constitutionally protected interest without a

hearing, and a hearing requires notice and an opportunity to be heard; it follows that the opportunity

to be heard must be at a meaningful time and in a meaningful manner. See Mathews v. Eldridge,424

U.S. 319, 333 (1976); Commonwealth v. Maldonado, 838 A.2d 710, 714(Pa. 2003).

In this instance, by contrast, the procedures followed were egregiously lacking and offered no

protections whatsoever for those whose rights were about to be infringed, instead running

roughshod over any notion of due process or fundamental fairness. The lower Court has afforded

the Office of Attorney General no opportunity to be heard and has deprived the Office of

Attorney General of basic and essential right to interview, subpoena, or call necessary witnesses

to attempt to make its case. In what is a nearly unprecedented occurrence, the lower Court

denied the Office of Attorney General the opportunity to truly make a case. This denial of any

semblance of due process is a clear violation of constitutional Protections and no Order should

trample the rights of one party to in a headlong rush to grant the relief sought by the opposing

party. The Order was issued based on testimony from an in camera, ex parte hearing. At this

original proceeding, the Office of Attorney General was afforded no opportunity to question

witnesses, test the veracity of their statements, or present evidence to rebut the testimony which

the office could have proven.

When the Office of Attorney General asked for subpoenas for the complaining witnesses

in preparation for the subsequent "hearine on the matter, they were denied. When the Office of

Attorney General attempted to subpoena a witness that may have information regarding the basis

for the order the lower Court instructed the Office of Attorney General to withdraw the subpoena

16

and then suggested that the issuance of a subpoena was contemptuous and perhaps criminal.2 In

light of the handicaps that were imposed on the Office of Attorney General, the "hearing" that

was actually held was, at best, perfunctory and, at worst, a charade. In fact, in Judge Carpenter's

Order of October 30, 2014, denying OAG's Motion to Vacate the Protective Order, made a

finding of fact that OAG produced only one (1) witness but failed to acknowledge that he denied

OAG's right to call additional witnesses.

During argument on the Office of Attorney General's motion for reconsideration, the Court

indicated that a hearing already had taken place, apparently referring to the occasion on which it

entertained the in camera, ex parte claims of two former employees of the Office of Attorney

General, Frank G. Fina, Esquire, and E. Marc Costanzo, Esquire. Such a procedure is by no means

the "hearine required to satisfy due process before fundamental rights can be infringed. Essentially,

the Court has determined that the unsubstantiated representations of a witness in an in camera ex

parte "hearine warrants the issuance of an order that affects the fundamental rights of literally

hundreds ofpeople who have no relation whatsoever to the matter at issue. In this case,those people

include: the Office of Attorney General; every member ofthe Criminal Law Division ofthe Office of

Attorney General, many of whom work hundreds of miles away in places like Pittsburgh or Erie and

who have no connection whatsoever to the Special Prosecutor's investigation or the persons involved

in that investigation; every person sworn to Grand Jury secrecy, which would include attorneys who

represent witnesses in separate investigations,court reporters, etc., who—again—have no connection

2

As noted above, reporter Brad Bumsted was expected to testify regarding the lack of candor on

the part of Fina and/or Costanzo in representations made to the Supervising Judge and Special

Prosecutor. If permitted to testify consistent with conversations with OAG employees, reporter

Bumsted would have categorically denied the occurrence of events described by Fina and/or

Costanzo.

17

whatsoever to this investigation; and any person "associated witlf the underlying investigation,

which would include witnesses, investigators, Mr. Fina and Mr. Costanzo, and even the former

Supervising Judge.

None ofthese people, apart from Frank Fina and Marc Costanzo, were ever given notice and

an opportunity to be heard. Moreover, there was no challenge to the testimony ofthe complaining

witnesses; it was simply accepted on its face and adopted. The Court has indicated that it is relying

on Commonwealth v. Hood, 872 A.2d 175(Pa. Super. 2005), which allowed an ex parte hearing in

support of a protective order allowing witnesses to remain unnamed in a first-degree murder

prosecution. Hood involved a first degree murder prosecution, not the intimidation of a witness.

The issue before the Court in Hood was whether the defendant was denied his federal and state

constitutional right to counsel when the Commonwealth was permitted to conceal the identity ofkey

witnesses prior to trial, as many of the eyewitnesses to a heinous murder were understandably

reluctant to testify. The Superior Court held that there was no violation ofconstitutional rights as the

defendant was told of the witnesses at the time of trial and given ample opportunity to investigate

their statements and to cross-examine the witnesses. Thus information was provided to the

defendant before the ultimate issue of fact was decided and before he suffered any penalty. This

Court in the case at hand has decided the ultimate issue of fact and assessed a penalty, all without

providing the relevant information to the Office of the Attorney General. If Hood requires the

ultimate disclosure ofinformation in a murder case where witnesses' lives are at risk, then certainly

the OAG is entitled to the relevant information where two seasoned prosecutors, neither of whom

could be characterized as meek or timid, were made to feel "uncomfortable."

To suggest that the Office of Attorney General was actually afforded a meaningful hearing is

absurd and factually inaccurate. What the Court afforded the Office of Attorney General was the

18

opportunity to appear in Court, but not the opportunity to actually present its case. The Office of

Attorney General would have been forced to violate a core tenant oflegal advocacy by attempting to

elicit testimony from witnesses without knowing their relevance to the issue before the court. In

denying the Office of Attorney General a hearing in any true sense ofthe word,the Court has defied

the wishes ofthe Supreme Court and has again disregarded constitutional protections afforded to the

Office of Attorney General and its employees in favor of holding a proceeding that was a closer

approximation a Stalinist show trial than a fair proceeding under the laws of this Nation and this

Commonwealth.

2. The Court's manner ofproceeding has violated the Separation of Powers Doctrine

because the Office ofAttorney General cannotfulfill its law enforcementfunction.

Because,consistent with the Protective Order,the Office ofAttorney General cannot take any

action that relates in any way to the Special Prosecutor's investigation, it cannot fulfill its function as

a law enforcement entity. The Attorney General is the chief law enforcement officer of the

Commonwealth. 71 P.S. § 732-206(a). Despite this position, she and her appointed deputies cannot

investigate leaks of matters occurring before the Grand Jury. As but one example,the Philadelphia

Inquirer recently published information relating to an encounter between a friend of Attorney Fina

and an employee ofthe Office of Attorney General, indicating that the Protective Order is based on

that encounter. A reporter has indicated that the paper has the "motiorf for the Protective Order,

apparently referring to the transcript to which the Office ofAttorney General has been denied access.

See Exhibit D. In other words, the leaks of matters occurring before the Grand Jury are ongoing,

and the Office of Attorney General's hands are tied. In a bizarre twist, it would appear that the

media has greater access to information in a leak investigation than the parties involved. Instead of

the Office of Attorney General performing its statutory and constitutional function, the Special

19

Prosecutor, at the direction ofthe Court, has assumed sole responsibility for this Executive function.

See generally Robinson Twp. v. Commonwealth,83 A.3d 901,991 (Pa.2013). The Protective Order

is unconstitutional for this additional reason.

The Office of Attorney General also cannot investigate and flush out any crimes that may

have been committed regarding information provided to the Supervising Judge. As the Office of

Attorney General has no access to the facts it is impossible for the chief law enforcement officer of

the state to ensure that the information provided to the Court is true and correct.

3. Substantial evidence ofwitness intimidation cannot have been provided to the Court.

The Office of Attorney General, having, essentially no knowledge ofthe factual basis ofthe

Protective Order, submits that substantial evidence of witness intimidation cannot have been

provided to the Court. While merely guessing at the facts, the Office of Attorney General

questioned some employees known to have been in and around the Grand Jury Suite on the day in

question. In the answer to the Application for Special Relief, the Special Prosecutor referred to

contact between agents ofthe Office of Attorney General and Frank Fina and Marc Costanzo. The

Grand Jury suite is located in the same building and on the same floor as the Norristown offices of

the Office of Attorney General; contact with the witnesses would be virtually unavoidable. On the

day of their testimony, Frank Fina and Marc Costanzo encountered Special Agent Michael A.

Miletto on their way to the Grand Jury room. Agent Miletto was involved in the investigation that is

the subject of the Special Prosecutor's inquiry and has previously testified before the Grand Jury.

The precise nature of the encounter between Agent Miletto and Attorneys Fina and Costanzo is

unclear. The Office of Attorney General has been prohibited from learning the facts surrounding the

encounter, but Agent Miletto denies that any act ofobstruction, intimidation, or retaliation occurred

on August 26, 2014, or that any act of his could reasonably be construed as such. The Office of

20

Attorney General had planned on presenting employees for testimony to refute intimidation but could

not do so when denied the basic factual basis of the intimidation allegations by the Court.

To this, it should be added that both Frank Fina and Marc Costanzo are highly experienced

prosecutors who have not only associated with law enforcement officers on a regular basis, but have

supervised many law enforcement officers, including agents of the Office of Attorney General.

Neither would be intimidated by an elevator ride with agents. The fact that the conduct ofthe agents

did not deter either attorney from testifying shows that neither was, in fact, intimidated.

In the answer to the Office ofAttorney General's Application for Special Relief, the Special

Prosecutor referred repeatedly to the disclosure of emails containing pornographic content or

attachments. In fact, the reference was repeated approximately twenty (20) times. The Special

Prosecutor also states in his answer that the ex parte hearing was held on August 25,2014 before the

two(2) witnesses testified before the Grand Jury on Tuesday, August 26,2014. Recently, there has

been considerable media coverage relating to the release ofinformation about the exchange ofsuch

emails by members and former members of the Office of Attorney General under prior

administrations. These emails were discovered during a review of the investigation and highly

publicized prosecution of Gerald A. Sandusky for sexual contact with underage boys and at the

insistence of the complaining witness, Frank Fina.

During that review,the Office ofAttorney General sought a number ofdisclosure orders from

the Honorable Norman A. Krumenacker III, who was specially appointed to handle matters relating

to the Sandusky investigation. Some ofthose disclosure orders related to interviews ofFrank Fina.

As a part of that process, Mr. Fina insisted that not only his emails found within the context ofthe

Sandusky review be turned over to him, but all emails that he had sent and received during that time

period be recovered and turned over. The Office ofAttorney General believed the total email history

21

unnecessary and Attorney Fina sought a court order to recover all emails. Those emails had been

deleted from the archived electronic records ofthe Office ofAttorney General. However,the Office

of Attorney General was able to retrieve the emails. While reviewing the emails, the Office of

Attorney General learned that the pornographic emails existed. Attorney Fina suddenly lost interest

in the emails; he and his counsel failed to appear at the Office of Attorney General to review the

material they fought so hard to obtain.

While considering what to do with the emails and consulting human resources experts and

lawyers in the Civil Law Division, the Office of Attorney General began to receive requests for

records under the Right to Know Law. In order to be fair, the Office ofAttorney General then sought

the opinion of outside counsel regarding its Right to Know Law responsibilities. Shortly thereafter,

Attorney Fina sought and obtained from Judge Krumenacker an order prohibiting the release ofthe

emails pending a determination by Judge Krumenacker as to whether he had jurisdiction to block the

release permanently. The public interest in the emails began to rise and Attorney Fina then sought a

protective order, apparently stating that the emails were a ploy to keep him and Attorney Costanzo

from testifying before the Grand Jury. By the time that Judge Krumenacker determined that he did

not have jurisdiction, Attorney Fina had obtained his Protective Order implicitly barring release of

the emails. During that time, the independent counsel determined that the emails were not records

subject to the Right to Know Law but that the Attorney General had the discretion to release them if

she determined that the disclosure would be in the public interest. The Attorney General in fact

made that determination and has released the emails with the exception that any reference to Mr.

Fina and Mr. Costanzo was omitted.

It is without question that it is ofinterest to the public that a ChiefDeputy Attorney General,

overseeing the prosecution of sexual offenses, was sending emails of pictures of duct tape with a

22

caption , "Duct tape turns no, no, no to MMMMMM". It is without question that emails titled"Men

in Training" which photographically depict a prepubescent girl hold her underpants open while an

even younger boy looks down her pants are of interest to the public. It is further without question

that a video clip emailed where five men holding the limbs of one woman put a champagne bottle

into her vagina as it is exploding and then one man drinks the liquid from her vaginal area is of

interest to the public. Emails ofthis nature are ofgreat interest to a public who would like to believe

that prosecutors, supervising and prosecuting sexual offenses,are not mocking nonconsensual sexual

acts or finding humor in minors used for sexual innuendo.

A review ofthis situation does not show any attempt to retaliate. Instead, it appears to be an

elaborate scheme to keep from the public eye bad and unforgiveable behavior. The Office of

Attorney General cannot know the subject of Attorney Fina's testimony because it does not have

access to that testimony. As far as can be discerned, Attorney Fina would be a background witness

based on his knowledge of the investigation about which there may have been a leak. There is no

reason for retaliation from the Office ofAttorney General. Attorney Fina did not work for the Office

of Attorney General at the time in which information was allegedly leaked. The Grand Jury process

is being manipulated to protect Attorney Fina and keep his own misconduct out of the view of an

interested and deserving public.

The Court has issued a Protective Order despite the absence of any connection between the

emails and the Special Prosecutor's investigation. In fact, a number ofprominent persons have been

seriously impacted while Attorney Fina has been granted immunity, despite the absence of any

reasonable inference that disclosure of the emails relates to his Grand Jury testimony. The fact is

that the emails were discovered at the insistence of Attorney Fina, and to suggest that the OAG has

devised a conspiracy to use the emails to silence Attorney Fina is illogical and not supported by fact.

23

Attorney Fina is alone responsible for the recovery ofthe emails that are ofinterest to the public and

are in no way related to the Grand Jury inquiry. It was he who insisted that the emails be recovered

and it is he who continues to use Court action to keep them secret. The end result of Fina's

machinations is not only that the Office of Attorney General has been prohibited from fully

informing the citizens ofthis Commonwealth about a matter ofgreat public interest and importance,

but also that the information that the Office has been permitted to release is incomplete,thus giving

the public an inaccurate and skewed impression of the conduct that actually took place.

VII. CONCLUSION

For the foregoing reasons,the Pennsylvania Office ofAttorney General respectfully requests

that this Honorable Court vacate the protective order of the Supervising Judge of the Thirty-Fifth

Statewide Investigating Grand Jury encompassed by the four related and interconnected Orders dated

August 27, 2014, September 17, 2014, and October 30, 2014.

Respectfully submitted,

KA HLEEN G.

Attorney General

Commonwealth of Pennsylvania

Office of Attorney General

e

1 Floor-Strawberry Square

Harrisburg, PA 17120

(717) 705-0098

(Fax)(717) 783-5431

November 10, 2014

24

EXHI IT "A"

State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 1 of5

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State A.G. probed Philly NAACP

leader Mondesire's finances 5 years

ago

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J. Whyatt Mondesiie. fanner President of the Philadelphia Chapter of the NAACP on August 10, 2000 (David Maialetti/

Staff Photographer)

CHRIS BRENNAN, Daily News Staff Writer brennac@phillynews.com,

215-854-5973V

LAST UPDATED: Thursday, June 5. 2014, 9:45 PM

ilosl Viewed News Slories:

STATE ATTORNEY General Kathleen Bouncers shoot man

DAilY NEW$ Kane is reviewing a 2009 grand-jury at Phila. strip club

investigation of J. Whyatt Mondesire, former head of the

NAACP in Philadelphia, and one of his employees, according

to documents obtained by the Daily News.

Teen pulls Philly cop

from burning car

Mondesire's employee, Harriet Garrett, and her daughter

pleaded guilty in 2010 to stealing nearly $220,000 in state

grant money for a job-training program. Garrett was

sentenced to a minimum of six months in jail and ordered to

Another teacher

pay restitution. Her daughter got 18 months probation. assaulted at Bartram

A 2009 memo written by then-Deputy Attorney General

Wlliam Davis Jr. says investigators "uncovered what

appeared to be questionable spending': of state money by Kane's car crash

- . Mondesire. tiff4Y-70 derailed testimony

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Kane, a Democrat, is now trying to determine what happened gr- 2..4;4121

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with the Mondesire investigation. Gov. Corbett, a Republican,

was the attorney general at the time. US bishops struggling

to adapt to pope

MORE COVERAGE

Police probe shooting at upper Montco complex

Christie chief of staff subpoenaed

http://www.philly.com/philly/news/20140606 State_A_G probed_Philly... 11/10/2014

Stale A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 2 of 5

Travel Deals Mondesire, 64, says he was never questioned and denies any

financial wrongdoing.

The 2009 Davis memo detailed for his bosses what had been

uncovered about Mondesire and Garrett, who worked at the

Philadelphia Sunday Sun, a weekly newspaper Mondesire

publishes.

6249 E up — Ends 11/16:

Caribbean Cruise Sale

A nonprofit called Next Generation Community Development

w/Upgrades

See all travel deals.

Corp., which is operated by Mondesire, held a state-

government grant for a jobs-training program in 2004 and

LISTED BYTRAYEIX00

'Some taxes, Wes ackiltlonal

2005, but handed it off to Garrett, who ran another nonprofit

A/so on Philly.COM

called Creative Urban Education Systems, or CUES,

BUSINESS:

according to the Davis memo. GM ordered switches

nearly 2 months

Weekly Circulars before recall

Mondesire was listed as chairman of the CUES board, the

memo noted, while Garrett served as the treasurer for Next

Generation's board.

%OnZEE HEALTH:

KVEIVIR

_

Davis wrote his memo to then-Chief Deputy Attorney General The 5 best exercises

for runners

BUYTWOF:i: ; Frank Fina and then-Senior Deputy Attorney General E. Marc

TARGET USA: Costanzo.

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more

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YON LeS5

Fina and Costanzo now work in a similar unit for District

Attorney Seth Williams.

1 En-- •••

1sA2 ENTERTAINMENT:

STAPLES: In the memo, Davis wrote: Stephen A. Smith to

Make More Happen For broadcast from

Less UPenn

THIS WEEK ONLY * Next Generation's bank-account records, obtained with a

grand-jury subpoena, showed deposits of $1.3 million in

See More Circulars.

government grants in a one-year period.

FOOD:

Rockhill: Pizza and

Another $521,000 irt the account came from political steaks return to a

campaigns, rent payments and the intermingling of money Cheriy Hill landmark

from the Sunday Sun, which is owned and operated by

Mondesire, the memo said.

JOBS:

* Next Generation paid $2,273 to the Philadelphia Club, a How should I manage

my workload while

private and exclusive club in Center City. I'm on vacation?

* Next Generation spent "tens of thousands," writing checks to

pay Mondesire's American Express bill for "clothes, food,

Stay Cmuteeted

lodging gas and entertainment and a loan from Mellon Bank.

Get the latest Phillycom Daily Headlines newsletter

There were also checks written to Mondesire and to "cash." delivered to your email. Sign up now!

Enter email address to sign up

* Next Generation wrote checks for $169,960 to Charles and

Claudia Tasco and their company, C&C Construction. Already a philly.com member? 0 Yes 0 No

(Charles Tasco is the son of City Councilwoman Marian

Tasco, a friend and political ally of Mondesires for more than

three decades.)

',,- ADAILY NEWS ORIG11411121

,

Ai4 NEWS

$6,431 in CUES money was given to Mondesire for what

Garrett called consulting. That type of expense was not FOR THE COMPLETE

allowed, according to the rules of the grant. DAILY NEWS EXPERIENCE,

* In "various correspondence between Garrett and Mondesire

ACME EM

discovered by investigators, she questioned payments of JOIN OR LOGIN NOW >

more than $70,000 he made to Claudia Tasco.

* CUES paid $1,099 for health insurance for Mondesire.

* Davis wanted to question Mondesire - and possibly

subpoena him for sworn grand-jury testimony - about Garrett,

CUES and Next Generation.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 11/10/2014

State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 3 of 5

Never questioned

Mondesire, a former Inquirer reporter who served as the top

aide to the late U.S. Rep. Bill Gray, said no one from the

A.O.'s Office ever questioned him.

"We didn't use any money for personal gain," Mondesire said.

He said that he has not seen the A.G. Office's documents and

twice declined an offer from the Daily News to review them.

Mondesire said C&C Construction worked on four properties,

including the NAACP headquarters and his newspaper office,

where the Next Generation non-profit is also located.

"We bought supplies with my American Express card for

construction," he said.

"They never asked me a single question back in 2009. We

rehabbed the buildings. We spent money buying stuff for the

buildings, construction and paying off developers."

Garrett declined to comment about the investigations. Her

daughter did not respond to requests for comment.

The May 2010 news release about Garretfs arrest featured

Corbett laying out the charges.

Corbett did not respond this week to two questions: Was he

briefed on the Mondesire investigation and did he play a role

in deciding what happened with that probe?

Mondesire was suspended by the NAACP's national

headquarters in April after he feuded publicly with board

members about the finances of the local chapter and Next

Generation.

Those board members - Sid Booker, Donald "Ducky" Birts

and the Rev. Elisha Morris - also were suspended.

Booker and Morris, who say they are still Next Generation

board members, are now asking a Common Pleas judge to

force Mondesire to show them the nonprofit's financial

records.

As a judge considers that request, Kane's staff is reviewing

what became of the 2009 Mondesire probe.

David Peifer, who heads the A.G.'s Bureau of Special

Investigations, on March 21 interviewed Michael Miletto, the

special agent who investigated Garrett and Mondesire.

The Daily News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next Generation's

bank account, the transcript shows.

"When I did that, I found that there was a whole bunch of

money that appeared to me to be donations to the NAACP,

not [Mondesire], and they were going into Next Generation's

account and they were being used for [Mondesire's] lifestyle -

much of it," Miletto told Peifer.

Miletto said he was taken off the case after Fina and

Costanzo were told about the probe, according to the

transcript.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 11/10/2014

State A.G. probed PhiIly NAACP leader Mondesire's finances 5 years ago Page 4 of 5

Miletto said "criminal activity was just ignored" after that. He

added that two accountants who had worked for Mondesire

had provided taped statements, with one asking for immunity

and the other asking for protection.

Fina and Costanzo declined to comment about the Mondesire

investigation, citing the secrecy of grand-jury proceedings.

Davis, now in private practice, also declined to comment,

citing the same restriction.

Miletto, who still works for the A.G.'s office, also declined to

comment.

Peifer referred questions to Kane's communications staff.

J.J. Abbott, a spokesman for Kane, declined to comment.

The Kane-Fina feud

• Fina and Costanzo have a complicated and controversial

relationship with Kane.

Kane criticized Corbett's tenure as attorney general when she

ran for office in 2012, specifically targeting the Penn State

child-abuse scandal that sent former assistant football coach

Jerry Sandusky to prison.

Kane's staff is now conducting an extensive review of that

investigation.

Fina led the Sandusky probe.

Kane, on Feb. 5, issued a statement noting that her office's

Sandusky review had been underway for one year, adding

that delays in the undertaking "will be described in more detail

when the report is made public."

A month later, the Inquirer reported that Kane declined to

pursue an investigation previously led by Fina and Costanzo,

starting in 2010, that used Philadelphia lobbyist Tyron Ali as a

confidential informant to tape conversations with four Philly

state representatives and a former Traffic Court judge. On the

tapes, the representatives and judge accept cash or gifts from

Ali.

Kane has said Fina dropped 2,033 criminal counts against Ali,

who had been charged with stealing $430,000 from a state

program, 24 days before she was sworn into office.

She said that "extraordinarily lenienr deal "crippled the

chance of this case succeeding in prosecution."

Fina, in a letter published by'the Inquirer a week after the first

story ran, called on Kane to explain her decision.

The Inquirer also published a letter that day from Fina's boss,

Williams, critical of Kane.

Kane eventually turned over the Ali case file to Williams, who

is now examining whether charges can be brought against the

four representatives and the Traffic Court judge, who is

currently on trial in an unrelated federal corruption case.

http://www.philly.com/phiIly/news/20140606_State A_G probed_Philly... 11/10/2014

State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 5 of 5

On Twitter: @ChrisBrennanDN

Blog: ph.ly/PhillyCloutcom

CH RLS BRENNAN

Daily News Staff Writer brenna*phillynews.com,

215-854-5973V

EXHIBIT "B"

Special prosecutor probes Pa. Attomey General's Office Page 1 of5

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