Pennsylvania Attorney General emails called 'gold mines' for defendants

| Tuesday, June 24, 2014, 10:51 p.m.

HARRISBURG — Millions of deleted emails recovered during Attorney General Kathleen Kane's review of the Jerry Sandusky investigation may become a “potential gold mine of favorable and discoverable evidence” that could be a “game-changer” for criminal defendants, a prominent Philadelphia lawyer said on Tuesday.

Theodore Simon, a criminal defense attorney and president-elect of the National Association of Criminal Defense Lawyers, said 20 million emails recovered during Kane's investigation “will require a careful and comprehensive review for favorable and discoverable evidence for any and all individuals accused by the prosecution” during a recent three-year period. The emails were internal communications between prosecutors.

Speaking for himself and not the association, Simon said “due process requires the defense to have the opportunity to access, review and evaluate this information” from November 2008 to November 2011, the recovery period for the deleted emails.

“I see the argument,” said Kane's first deputy Bruce Beemer, “but I don't think it will create a pervasive problem over time.”

Kane issued a report on Monday that she promised during her 2012 campaign, to attempt to answer why it took former Attorney General Tom Corbett and his successors nearly three years to arrest Sandusky, who was subsequently convicted of 45 counts of child sexual abuse. Sandusky, 70, is serving a 30- to 60-year prison sentence.

Al Lindsay, a Butler lawyer representing Sandusky, said the emails are of “profound interest” to him as he works on a post-conviction motion. Superior Court in 2012 upheld Sandusky's conviction, and the state Supreme Court declined to hear the case in April.

Defendants who are turned down by the Supreme Court can take a final shot in the state courts if they can show that they had “ineffective counsel” or if there is newly discovered evidence. Lindsay declined to say whether he'll seek access to the emails or what he may argue. He has until September to file a motion.

Kane's report found no evidence that Corbett slow-walked the investigation until after his November 2010 election as governor. Sandusky was arrested about a year later.

In 2011, Acting Attorney General Bill Ryan shortened the office's email retention policy from five years to six months. When the review began in February 2013, Kane's team was “told that no emails from the period of November 2008 through November 2011 were recoverable, unless they had been saved by individual, current OAG employees,” the report said.

It wasn't until October that Kane's office had a breakthrough on recovering the emails.

Former Chief Deputy Frank Fina, criticized in the report for his handling of the successful investigation, predicted there will be numerous defense requests for the emails. He said defendants in an ongoing Penn State cover-up case could be beneficiaries.

“It will certainly be an obvious tactic brought by defense attorneys,” said State Police Commissioner Frank Noonan.

Phil DiLucente, a Downtown Pittsburgh-based defense attorney, said the emails open the door for attorneys to seek information that wasn't granted in discovery motions. Defense lawyers would have to petition a judge for an order directing the Attorney General's Office to release any relevant emails, he said.

“In light of how massive the investigation was concerning the Penn State officials, it would appear that it could be very relevant to the actual decision-making of why persons in administration levels are being prosecuted,” DiLucente said.

Penn State's ex-President Graham Spanier, ex-Vice President Gary Schultz and ex-athletic director Tim Curley await trial on charges, including failure to disclose suspected child abuse. Their attorneys wouldn't say what they will do about the emails.

Elizabeth Ainslie, Spanier's Philadelphia-based attorney, did not answer messages seeking comment. Tom Farrell, representing Schultz, said in an email that he wasn't available to talk. Caroline Roberto, Curley's lawyer, said she could not discuss it.

“As a carte-blanche-type thing, I can't see it happening regularly,” said John Elash, a retired Pittsburgh criminal defense attorney. A judge would have to make a determination in each case about whether emails might be relevant, he said, and attorneys would have to be specific when making requests.

Moreover, said Samir Sarna, a Pittsburgh criminal defense lawyer, there's a risk the email search could produce something prosecutors could use against a defendant.

Brad Bumsted and Adam Smeltz are Trib Total Media staff writers. Pennsylvania Legislative Correspondents Association intern Gideon Bradshaw contributed.

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