Attorney General Kathleen Kane's Lawyer, Special Prosecutor Spar in Court

A special prosecutor investigating an alleged grand jury leak by Pennsylvania Attorney General Kathleen Kane argued to the state's highest court Wednesday that Kane is challenging his appointment late in the game only to avoid criminal charges.

A grand jury led by special prosecutor Thomas Carluccio has recommended that Kane be charged with perjury, obstruction and other charges over the alleged 2009 leak to a Philadelphia newspaper. The panel heard evidence in the case for eight months. Kane's lawyers are now challenging the legality of the process.

"She let this investigation go on and now, just because the attorney general doesn't like the results ... she wants to quash it," Carluccio argued before the state Supreme Court.

Kane's lawyer argued that Montgomery County Judge William Carpenter did not have the power under the state grand jury act to name a special prosecutor to convene a new grand jury and compel witness testimony. Instead, lawyer Joseph Del Sole argued, Carpenter should have referred the matter to a county prosecutor.

"Judge Carpenter overstepped his bounds," said Del Sole, making a distinction between the judge's power to supervise sitting grand juries and those — as is the case here — that had long ago finished its work.

"We are not talking about the protection of a grand jury the judge is supervising," Del Sole argued. "There's no authority for a special prosecutor to be appointed by a supervising judge."

Carpenter was looking into an alleged leak of grand jury material to the Philadelphia Daily News when he appointed Carluccio, a private lawyer, to the case. The newspaper reported last year on the 2009 grand jury investigation of a former president of the Philadelphia NAACP, who was never charged.

Kane testified before Carluccio's grand jury in November.

Her lawyers have since confirmed that Kane allowed a deputy to leak a 2014 summary of the NAACP probe. However, they insisted that she did not leak any of the grand jury evidence.

Kane listened to arguments Wednesday from the back row of the crowded courtroom. She later declined to respond to Carluccio's claim that his appointment should have been challenged within 10 days.

"I'm going to let the court make its own decision now," Kane said.

Del Sole asked the five members of the Supreme Court hearing the case to suppress the grand jury presentment that recommends charges as well as the evidence they gathered. The recommendations have been referred for potential prosecution to Montgomery County District Attorney Risa Ferman.

The grand jury has also recommended that Kane be charged with false swearing and official oppression, according to documents filed in the Supreme Court case.

The Supreme Court has ordered that no charges be filed against Kane, pending its decision.

Copyright AP - Associated Press
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