A Selective Case of ‘Standing on Principle’

In July 2013 Pennsylvania Attorney General Kathleen Kane made a bold move when she refused to defend a Pennsylvania state law in federal court that banned same-sex marriage. Terming that ban “wholly unconstitutional,” Kane declared that ethical directives applicable to lawyers barred her from defending a “legally indefensible” law.

“If there is a law that I feel that does not conform with the Pennsylvania state constitution and the U.S. Constitution, then I ethically cannot do that as a lawyer,” Kane told a reporter in 2013 a year after her successful campaign to become the state’s first female attorney general. (Kane endorsed gay marriage during her campaign.)

It looks like that self-imposed proscription of Kane’s against acting unconstitutionally has a lot of flexibility built into it, though.

Today, two years after Kane’s bold refusal to defend the indefensible same-sex marriage ban, her office is in federal court defending a law hastily approved by Pennsylvania’s Republican controlled state legislature last fall that clearly does not conform with rights protections in either the Pennsylvania or U.S. constitutions.

The constitutionally-challenged law Kane now defends would cripple press freedom, free speech and other constitutionally protected rights. Unlike the same-sex marriage ban Kane earlier refused to defend, this new law she now is going to bat for in court does not afford her societal kudos or potential campaign contributions.

The law Kane is now fighting to uphold was devised specifically to silence the criticisms and critiques of prison inmates, but beyong that, it will also adversely impact civilians who monitor prison issues, rights activists and journalists, barring them from doing their investigating prison-related issues.

Further, the unconstitutional law Kane now willingly defends gives prosecutors across the state of Pennsylvania –- both state AGs and local District Attorneys -– a legal cloak to hide their misconduct and unconstitutional actions from public scrutiny.

Ironically, evidence of that misconduct is evident in Kane’s current fight in another federal court to block a new trial for two inmates currently serving life sentences whose appeal is based on alarming evidence of gross misconduct by the Kane’s own Attorney Generals Offices. The silencing law Kane defends would give her (and other prosecutors statewide) another weapon to quash inmates who try to expose lawlessness by law enforcers.

Kane’s office has mounted a vigorous defense of the “Revictimization Relief Act” –- a law that grants prosecutors the authority to file lawsuits to protect victims of crime from activities that they claim “perpetuate the continuing effect of the crime” on the victim.

This law, critics contend, could enable prosecutors to act against journalists reporting on wrongful convictions, prison conditions, clemency petitions and penal policy issues like sentencing juveniles to life-without-parole sentences (Pennsylvania has the highest number of such people sentenced to life for crimes committed as juveniles in the nation).

A number of existing Pennsylvania laws, like bans on harassment, stalking and threats, already provide crime victims with protections without sabotaging press freedom and the free speech rights of all inmates, activists and journalists.

The “Revictimization Act,” derided by critics deride as the Silencing Act, appears to violate decades of court rulings on First Amendment free speech/free press rights. Federal and state court rulings on laws limiting First Amendment rights have established the principle that such laws be precisely written (“narrowly tailored”), the opposite of the vaguely worded “Revictimization Act.”

Beyond that, that “Revictimization” law appears to violate the clear language of the press freedom/free speech provision in the Pennsylvania State Constitution, a reality seemingly ignored by AG Kane and conservative Pennsylvania legislators.

According to Article 1 Section 7 of the Pennsylvania state constitution, which defines free press and free speech protections: “No law shall ever be made to restrain the right…to examine the proceedings of the Legislature or any branch of government…No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of [officials] in public capacity.”

Robert ‘Saleem’ Holbrook, an inmate challenging the “Revictimization” law, frequently writes about inequities in criminal law and prison conditions. Holbrook is one of the nearly 500 ‘Teen Lifers’ in the state’s bulging prisons. Like most teen lifers sentenced for murders they did not actually commit, decades ago Holbrook was present at a robbery where an associate robbed and killed a person.

While Kane’s office is now defending for the “Revictimization Act” in federal court, her office is simultaneously fighting against two inmates who are challenging their life sentences on strong evidence of innocence that the a prior state Attorney General had improperly withheld during their 1996 trial –- evidence of misconduct by police investigators and prosecutors from the Attorney General’s Office.

The efforts by Lorenzo Johnson and Corey Walker to receive new trials have utilized websites to publicize the (alleged) wrongdoing of police and prosecutors that (allegedly) violated their fair trial rights. Under the “Revictimization Act” however, Kane or other prosecutors could seek court approval to close the website postings of Johnson and Walker, claiming that they have exposed “official conduct “of officials in public capacity as protected in the state constitution.

Philadelphia District Attorney Seth Williams, an early and strong supporter of the “Revictimization” law, claimed his opposition to a delay in the execution of a Philadelphia death row inmate (ordered by Pa’s Governor Tom Wolf who imposed a moratorium on all executions) was based on his support of the wishes of the murder victim’s widow.

But that widow herself recently blasted Williams for misrepresenting her wishes, including her support of a life sentence for that death row inmate who she agrees was sexually abused by her husband. That’s abuse is a critical mitigating fact that prosecutors withheld from the jury during that murder trial. “Why have you…ignored what I have clearly said for years and then lied about it?” the widow stated in a letter to Williams and some of the legislators who are supporting the Silencing Law.

The “Revictimization Act” was approved last fall by the Republican-dominated legislature and was signed by prior Gov. Tom Corbett during the floundering Republican’s reelection campaign. Supporters of the act admitted that they had passed it as a measure intended to silence internationally known Pennsylvania political prisoner Mumia Abu-Jamal from access to the public arena.

The fate of the “Revictimization Act,” which might well be called the “Mumia Silencing Bill,” is now before a federal judge, who will determine its constitutionality –- either upholding free press/free speech rights or endorsing the repression sought by prosecutors and politicians.

In what critics call a repugnant footnote to the fight over the “Revictimization Act,” Kane’s office is battling to bar an attorney from representing Corey Walker. Kane’s office has claimed that the history of this lawyer’s criticism of improprieties in the justice system, plus her work with political prisoner Abu-Jamal, make it “intolerable” for her to practice law in Pennsylvania. Given that attorneys are obligated to defend all people who are charged with a crime, and that there is a responsibility to provide justice to those already convicted too, to pursue all avenues of appeal, it is the height of hypocrisy to try to tar an attorney who takes unpopular cases, as this would undermine the whole principle of “justice for all” on which the US legal system claims to be based.

What is truly intolerable is the duplicity of prosecutors like Kane fighting to deny the full measure constitutional rights they are sworn to protect, including for convicts.

The joke is that Kane is currently the subject of a criminal investigation into allegedly leaking grand jury minutes in a case her department was prosecuting — a potential felony. If things go against her, she might live to regret having defended a politically motivated law that would make it impossible for her to complain about prison conditions.

Linn Washington is a member of ThisCantBeHappening!, the new independent, uncompromised, five-time Project Censored Award-winning online alternative newspaper. His work, and that of colleagues JOHN GRANT, DAVE LINDORFF, GARY LINDORFF, ALFREDO LOPEZ, LORI SPENCER, and the late CHARLES M. YOUNG, can be found at www.thiscantbhappening.net

Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.

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