Importance of prosecutorial experience debated in attorney general race

| Saturday, Feb. 20, 2016, 11:21 p.m.

HARRISBURG — Fed up with corruption during Gov. Milton Shapp's administration, Pennsylvania voters in 1978 changed the state constitution to establish the independent Office of Attorney General.

Sixty state officials were charged or convicted of crimes during Shapp's tenure, and people wanted an attorney general, elected statewide, who no longer would report to the governor. Four Republicans and Democrat Kathleen Kane, all of them former prosecutors, have held the office since.

Prosecutorial experience and the criminal charges against Kane — who is set to be tried in August for felony perjury and other crimes — have become campaign issues among the three Democrats and two Republicans jockeying to succeed her. Kane, 49, of Scranton said last week she will not seek re-election.

A tough prosecutor mowing down criminal defendants is the public image of the office, but the attorney general has broad responsibilities in civil law and consumer protection, said Christopher Borick, political science professor at Muhlenberg College in Allentown.

That image “is an artifact of public perception about what the chief law enforcement officer does,” Borick said. Still, there's no question “it has always advantaged prosecutors in their bids to become attorney general.”

Even Kane's 2012 primary campaign as “a prosecutor, not a politician,” helped her win.

“We see where that got us,” said Walter Cohen of Harrisburg, a former acting attorney general.

Kane, a former assistant district attorney in Lackawanna County, is the second elected attorney general to be charged with crimes. Ernie Preate, a Scranton lawyer, resigned the office in 1995 upon pleading guilty to mail fraud in connection with taking illegal campaign donations from video poker operators.

The Supreme Court has suspended Kane's law license, and the state House on Tuesday will hold the first public meeting in its impeachment investigation of her.

Prosecutorial experience “is not necessary to be a good, or outstanding, attorney general,” said Cohen, who noted that 90 percent of the work is civil. More important, he said, “are judgment and integrity, not that you've been a prosecutor.”

Diverse experience

But experience as a prosecutor has become an issue in this race.

Marty Marks, campaign manager for Allegheny County District Attorney Stephen A. Zappala Jr., used it to take a swipe at Montgomery County Commission Chairman Josh Shapiro when former Democratic Gov. Ed Rendell endorsed Shapiro's candidacy.

No endorsement, Marks said, will make up for the fact that Shapiro, 42, a former legislator, “has never tried either a criminal or civil case in court.”

Zappala, 58, later acknowledged that he has not tried a case in 18 years as district attorney, though he did in private practice.

“We are not electing the 68th district attorney of Pennsylvania. I'm running as a reformer who brings integrity to the office,” said Shapiro, who co-chaired a state legislative reform commission after lawmakers in 2005 awarded themselves a middle-of-the-night pay raise. He chairs the Pennsylvania Commission on Crime and Delinquency.

Shapiro's campaign manager, Joe Radosevich, said the attorney general “is the one person that any Pennsylvanian can call to protect everything from their financial security to their drinking water.” He said Shapiro understands the broad responsibility of the office and has “diverse experience and leadership skills.”

But saying that you don't need to be a prosecutor to be attorney general “is akin to hitting a major league fastball having never played baseball,” said Zappala's spokesman, Ken Snyder. He said Zappala has prosecuted “a Supreme Court justice, legislators and corrupt public officials ... who abused tax dollars.”

During his tenure, Zappala's office in 2013 won a corruption case against former Justice Joan Orie Melvin of Marshall for using public resources to campaign.

Northampton County District Attorney John Morganelli, 60, the Democrats' unsuccessful nominee in 2008, notes he won 25 first-degree murder convictions as district attorney.

In the Republican primary, both candidates have worked in the Attorney General's Office. Sen. John Rafferty, 62, of Montgomery County is the GOP-endorsed candidate. Joe Peters, 58, is the son of a former mayor of Scranton.

Civil-criminal split

The Attorney General's Office defends state agencies in most lawsuits against the commonwealth, and it files lawsuits to protect consumers. It handles anti-trust investigations and oversees charitable trusts.

On the criminal side, the attorney general gets referrals from district attorneys who cannot handle cases because of conflicts or a lack of resources.

Some cases originate with the Bureau of Narcotic Investigation. The environmental crimes section handles referrals from the Department of Environmental Protection and district attorneys. The agency handles insurance and Medicaid fraud and prosecutes tax cheats.

“I think you should at least have a background as a prosecutor. You can't just be a lawyer,” said Steve Wheeler, former head of criminal investigations. Wheeler, a 29-year veteran of the office who worked under every modern attorney general through early 2013, estimated that “half of the office's work was criminally oriented.”

Being a prosecutor is important because state law defines the attorney general as the “chief law enforcement officer of the commonwealth,” Morganelli said.

“Would we select a person with no medical experience to be chief of surgery?” he said. “Kane had minimal experience, which was a huge factor in her misjudgments.

“The imperfections of Kane and Preate do not mean that next time we look for someone who has no law enforcement experience. It means we want experience and integrity.”

GOP matchup

The candidate with the broadest law enforcement credentials might be the least known: Peters. His website promotes him as a career prosecutor.

A former Scranton police officer, he worked for every attorney general since the referendum established the office and briefly was Kane's spokesman. He was one of the federal prosecutors who convicted Philadelphia mob boss Nicodemo “Little Nicky” Scarfo.

“The citizens of Pennsylvania want a qualified, tough guy. They want law and order,” Peters said, “and they want someone who can lead the office on the first day.”

Rafferty is “a good man,” Peters said, but there's “no comparison” between Rafferty's experience for the office and his own.

“I think that's poor judgment on his part,” said Rafferty, who notes that “I've had civil law experience as well as criminal.” Rafferty worked in the office from 1988 through 1991 as a Medicaid fraud prosecutor. In private practice, he handled a range of cases, from mental health to education to zoning.

“(Peters) is such a good prosecutor that Kathleen Kane, who has had one of the worst administrations in recent history, chose to make him a press secretary,” said Mike Barley, spokesman for Rafferty. “He's going to have to answer why he was a key executive staff member in Kathleen Kane's administration.”

Brad Bumsted is the Tribune-Review's state Capitol reporter. Reach him at 717-787-1405 or bbumsted@tribweb.com.

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