Judge: Kane spared Fumo in Turnpike Commission case

Pennsylvania Attorney General Kathleen G. Kane's office decided not to charge former State Sen. Vincent J. Fumo in the pay-to-play investigation of the Pennsylvania Turnpike Commission, even though a draft presentment called for him to face charges, the grand jury judge in the case said Wednesday.

Judge Barry F. Feudale alleged that Kane spared Fumo, for years Philadelphia's most powerful state lawmaker, from the criminal investigation. He made that assertion in an explosive, 18-page letter to federal prosecutors, the FBI, the state Supreme Court, the state Ethics Commission, and the state Senate panel considering whether Kane should be removed from power.

Kane, the judge said, "violated criminal laws and professional ethics," is "out of control," and is a "mean-spirited liar."

Kane spokesman Chuck Ardo said he could not immediately address Feudale's specific assertions. In general, Ardo said, "he makes a lot of allegations without providing evidence. We would hope the judge required more proof when deciding a case from the bench."

Fumo, a Democrat who was in federal prison on a corruption conviction unrelated to the turnpike when the pay-to-play case was brought, could not be reached for comment Wednesday. Efforts to reach his lawyer, Dennis J. Cogan, were unsuccessful.

Feudale's complaint landed just hours after Kane was ordered to testify under oath Thursday about her recent allegations that Feudale, who for a dozen years oversaw grand juries in some of the biggest cases handled by the Attorney General's Office, had leaked confidential information about the investigation of serial child molester Jerry Sandusky.

Judge John Cleland ordered her to appear after demanding that Kane produce any evidence suggesting that Feudale had leaked in the Sandusky case. Kane was unable to produce such evidence.

Feudale has denied leaking any information in that case.

Kane and Feudale, both Democrats, have been locked in a dispute that dates to May 2013, shortly after she took office, when she successfully sought to remove him as the supervising judge over the statewide grand jury in Harrisburg.

In doing so, she alleged Feudale had insulted her and a predecessor, and had even brandished a knife at one of her secretaries. Feudale said Kane trumped up a case because he was a critic of her early decisions as attorney general.

Last week, Kane made public emails between Feudale and two Inquirer reporters that she said showed he plotted to release sealed documents related to his ouster. She said they demonstrated a "reckless breach," and urged that they be investigated by judicial ethics agencies.

Kane obtained the emails after Feudale sent them to her office by mistake. She released them at about the same time a campaign operative had been seeking to leak them to news outlets, The Inquirer and the Legal Intelligencer have reported.

In his complaint Wednesday, Feudale acknowledged bad blood between him and Kane, but said he was speaking up because he "still believes that facts matter."

He accused Kane of a long list of ethical violations and misdeeds - including breaking into his office. He urged that she be removed from office because she is facing criminal charges and has had her law license suspended by the state Supreme Court.

Kane is awaiting trial on perjury and other charges for allegedly leaking confidential documents in a bid to embarrass a critic.

Feudale's accusations that Kane's office dropped potential defendants from the turnpike case were the most serious and startling of his assertions about the attorney general.

Kane announced the turnpike case with fanfare in March 2013, just three months into her term. She charged eight defendants with trading lucrative contracts for campaign contributions.

Those charged included former Democratic State Sen. Robert J. Mellow, a political power broker from the Scranton area; the turnpike's chief executive, Joseph Brimmeier; chief operating officer George Hatlowich; and Mitchell Rubin, chairman of the turnpike board and at the time a close ally of Fumo's.

The final, 85-page grand jury presentment that outlined criminal charges against the men did not mention Fumo by name but referred to him as "Senator No. 6," and spelled out his power over the Turnpike Commission.

Still, while prosecutors had turned Mellow's former chief of staff into a witness against him, they were not able to produce such a witness against Fumo.

At the time the turnpike case was brought, Fumo was serving the final months of his federal corruption conviction on charges of defrauding the state Senate and two nonprofit organizations.

In the end, the entire turnpike case fizzled, ending mainly in plea deals for minor offenses. Defense lawyers had argued that the presentment unfairly sought to criminalize routine politics. No one went to jail.

Feudale said in his complaint that Laurel Brandstetter, the prosecutor handling the case for the Attorney General's Office at the time, had given him both a draft of the grand jury presentment and, later, the final proposed charging document.

The two, he said, were undeniably different.

"I noted a substantive change in the name(s) who were being recommended for presentment, as well as changes in the presentment to names of vendors who were previously identified and allegedly implicated in improper practices before the Turnpike Commission," Feudale said.

The draft presentment had called for charging 15 people - seven more than the number actually charged. And Fumo, Feudale said, had been the first person listed.

He said he would provide a copy of the draft to investigating agencies.

Brandstetter said Wednesday that Feudale had raised "significant and alarming allegations." In a statement, she said Kane and her predecessor, Linda Kelly, had "made the investigation and prosecution of the Pennsylvania Turnpike cases as difficult as they possibly could." However, she added that she would not have "knowingly participated" in any effort to manipulate criminal charges.

Asked about the turnpike case, Kane previously said she did not remove any defendants named in charging documents.

In a July 2013 letter to the Legal Intelligencer, Kane assailed the newspaper for quoting sources as saying defendants had been removed from the presentment.

"Every individual facing charges on Jan. 15 (the day of my swearing-in) was in fact charged," she wrote. She added: "Not a single vendor was removed from the presentment."

Feudale, in his written complaint, said he approached Adrian R. King, Kane's top aide at the time, and told him he was concerned that names of people who held contracts with the Turnpike Commission had been dropped from the final presentment.

The judge said he urged King to "fire wall himself" from the case since the law firm where King previously worked had represented some of the vendors. King, he said, resented him for it.

King's lawyer, Henry Hockeimer, declined comment.

A few months later, as Kane sought to have Feudale removed as grand jury judge, he said, King signed the complaint by her office that sought his ouster.

Shortly after Feudale was removed, he said, someone broke into his office and took some documents. Among them, he said, was the grand jury presentment with Fumo's name on it.

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