In Re: The Thirty-Fifth Statewide Investigating Grand Jury Pet of: Joshua Morrow

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: THE THIRTY-FIFTH STATEWIDE : No. 18 MM 2015
INVESTIGATING GRAND JURY :
:
:
PETITION OF: JOSHUA MORROW :
ORDER
PER CURIAM
AND NOW, this 26th day of August, 2015, upon the request of the supervising
judge for removal of the seal from all matters involving the 35th Statewide Investigating
Grand Jury and the investigation of Attorney General Kathleen Kane which have been
lodged in this Court, save for grand jury materials such as testimony, exhibits, and in
camera proceedings, and based on the supervising judge’s assurance that there are no
present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED
that the seal is lifted, in part, upon such terms.
Filed in Supreme Court
THE SUPREME COURT OF PENNSYLVANIA
JAN 2 2 2015
PETITION FOR REVIEW UNSEALED PER
ORDER OF THE
COURT DATED
PETITION FOR REVIEW OF ORDER OF CONTEMPT AND ORDER AUGUST 26, 2015
OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT
BEFORE THE INVESTIGATING GRAND JURY
Misc. Dkt.
SEALED
a 2015
In re The Thirty-Fifth Statewide Petition for Review of
Investigating Grand Jury Contempt Order and Order Ov6rneng
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012
Montgomery County Common Pleas
M.D. 2644-2012
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
Received In Supreme Court
EA E
JAN 3 0 2015
JAN 26 2015
Odle
SUPREME COURT
EASTERN DISTRICT
TABLE OF CONTENTS
Table of Citations
Introduction 1
The Party Seeking Review 1
Jurisdiction 1
The Court Below 2
The Orders to be Reviewed 2
Statement of Objections to the Orders Below ... 3
The Relief Sought 3
Exhibits
Enclosure Letter of William R. Carpenter, Supervising Judge,
35th Statewide Investigating Grand Jury, to Chief Justice Castille regarding
Order Appointing Special Prosecutor, May 29, 2014 Exhibit lA
35th Statewide Investigating Grand Jury Subpoena for Testimony,
No. 1639, December 3, 2013 Exhibit 1B
Disclosure Order, Sealing Order, and Transcript of January 12, 2015 Order ... Exhibit 1C
35th Statewide Investigating Grand Jury Presentment No. 60 Exhibit 1D
Order Accepting Presentment No. 60, by William R. Carpenter,
Supervising Judge, 35th Statewide Investigating Grand Jury Exhibit lE
Opinion of William R. Carpenter, Supervising Judge,
35th Statewide Investigating Grand Jury, December 30, 2014 Exhibit 1F
Philadelphia Inquirer Article, January 8, 2015,"Grand Jury
Recommends Criminal Charges Against Kane" Exhibit 1G
Brief in Support of Petition for Review of Contempt Order and Order
Overruling the Petitioner's Invocation of the Fifth Amendment Before
the Investigating Grand Jury Exhibit 2
TABLE OF CITATIONS
Cases
Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999) 2
Commonwealth v. Harris, 32 A.3d 243(2011) 2
Statutes
Pa. R.A.P. 313 2
Pa. R.A.P. 313(a) 2
Pa. R.A.P. 341 2
Pa. R.A.P. 1512 1
Pa. R.A.P. 1512(b)(3) 2
Pa. R.A.P. 3331(a)(3) 1
i
IN THE SUPREME COURT OF PENNSYLVANIA
In re The Thirty-Fifth Statewide Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012
Montgomery County Common Pleas
M.D. 2644-2012
PETITION FOR REVIEW OF CONTEMPT ORDER AND ORDER
OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH AMENDMENT
BEFORE THE INVESTIGATING GRAND JURY
I. INTRODUCTION
1. This is a Petition for Review by grand jury witness Joshua Morrow from a final
contempt order entered on January 12, 2015 by the Court of Montgomery County Court of
Common Pleas (Carpenter, J.). The lower court found Petitioner in civil contempt holding that
he could not invoke his constitutional rights under the Fifth Amendment rights in response to
certain questions posed to him before the grand jury. This Petition for Review is filed under
Pennsylvania Rule of Appellate Procedure 3331(a)(3), incorporating the provisions of Rule
1512.
II. THE PARTY SEEKING REVIEW
2. The party seeking review is Joshua Morrow, a witness before the investigating
grand jury for Montgomery County.
III. JURISDICTION
3. This is a petition for review of an order finding the petitioner in contempt of court
for having respectfully refused to comply with an order entered on the basis of the lower court's
ReceIved In Supreme Court
JAN 3 0 2015
finding that the petitioner may not invoke his rights under the Fifth Amendment to the United
States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341.
4. Moreover and in the alternative,"orders overruling claims of privilege and
requiring disclosure are immediately appealable under Pa. R.A.P. 313." Commonwealth v.
Harris, 32 A.3d 243, 251 (2011)(reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999)). Pennsylvania Rule of Appellate Procedure 313(a) provides that "[a]n appeal may be
taken as of right from a collateral order of...[a] lower court."
5. This Petition for Review is timely as it is filed within ten days of the lower court's
contempt order and order that the petitioner may not invoke his constitutional rights under the
Fifth Amendment in response to certain questions put to him before the grand jury. Both orders
were entered on January 12, 2015. See Pa. R.A.P. 1512(b)(3)(requiring the filing of a petition
for review within ten days of the entry of a grand jury order).
6. Accordingly, this Court has jurisdiction over this appeal.
IV. THE COURT BELOW
7. The court below is the Honorable William R. Carpenter of the Montgomery
County Court of Common Pleas.
V. THE ORDERS TO BE REVIEWED
8. The orders sought to be reviewed are an order of January 12, 2015, finding the
petitioner in civil contempt for refusing to comply with the lower court's order that he testify,
and the lower court's order that he may not invoke his constitutional rights under the Fifth
Amendment in response to certain questions put to him before the grand jury. In support hereto,
attached and incorporated herein is Exhibit 1 to the Petition.
2
VI. STATEMENT OF OBJECTIONS TO THE ORDERS BELOW
9. Petitioner objects to the orders of the lower court on the ground that the lower
court erred in ruling that the petitioner may not rely upon his Fifth Amendment rights in refusing
to answer questions before the grand jury.
VII. THE RELIEF SOUGHT
10. Petitioner asks this Court to hold that the Fifth Amendment provided just cause
for his refusal to answer certain questions in the grand jury and requests an order reversing the
finding of civil contempt. A Brief in Support of this Petition is attached as Exhibit 2 to the
Petition.
Respectfully Submitted,
Date: January 22, 2015
Catherine M. Rec r
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
3
Exhibit 1
Exhibit A
•
PRESIDENT JUDGE COURT OF COMMON PLEAS
WILLIAM J. FURBER. JR.
ASSOCIATE JUDGES
JOSEPH A. SMYTH SENIOR JUDGES
STANLEY R. OTT WILLIAM T. NICHOLAS
BERNARD A. MOORE S. GERALD CORSO
WILLIAM R. CARPENTER .CALVIN S. DRAYER, JR.
RHONDA LEE DAN/ELE KENT H. ALBRIGHT
ARTHUR R. TILSON
EMANUEL A. BERTIN MONTGOMERY COUNTY
THOMAS M. DELRICEI THIRTY-EIGHTH JUDICIAL DISTRICT
R. STEPHEN BARRETT
THOMAS C. BRANCA
NORRISTOWN, PENNSYLVANIA
STEVEN T. O'NEILL 19404
THOMAS P. ROGERS
GARRETT O. PAGE
KELLY C. WALL
CAROLYN TORNETTA CARLUCCIO
WENDY DEMCHICK-ALLOY
PATRICIA E. COONAH AN
LOIS EISNER MURPHY
GARY S. SILOW
RICHARD P. HAAZ
CHERTL L. AUSTIN
GAIL A. WEILHEIMER
STEVEN C. TOLLIVER, SR.
May 29, 2014
The Honorable Ronald D. Castille
ChiefJustice of Pennsylvania
Supreme Court of Pennsylvania
1818 Market Street, Suite 3730
Philadelphia, PA 19103
Re: Statewide Investigating Grand Juries
• Dear ChiefJustice:
Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegati
on that
secret Grand Jury information from a prior Grand Jury was released by someone in the Attorne
y General's
Office.
• As the current supervising Grand Jury Judge, this matter was brought to my attentio
n. My
preliminary review included in camera sealed testimony frorn two individuals with
knowledge.
I have decided that the matter is.irnportant enough to appoint a Special Prosecut
or, Thornas E.
Carluecio, Esquire. He is a forrner prosecutor, served in the Department of the
Attorney General in
Delaware for fourteen years and a Special Assistant United States Attorney. In addition
Tom has done
Grand Jury work, and is honest, capable and reliable.
Please call me if you would like to discuss this matter further.
Please advise.ifyou feel that 1 am in error or haVe exceeded my authority
as the Supervising Grand
July Judge.
•
Si ncerely
to/SAaSt
William R. Carpenter, J.
Supervising Judge
•
WRC/cns
Cc. Thomas E. Carluccio, Esquire
•
Exhibit B
STATEWIDE INVESTIGATING GRAND JURY
SUBPOENA
TO: JOSHUA MORROW :SUPREME COURT OF PENNSYLVANIA
:NO.176 M.D. MISC.DKT.2012
:MONTGOMERY COUNTY COMMON PLEAS
:M.D. 2644-2012
1. YOU are ORDERED to appear as a witness before the
PENNSYLVANIA STATEWIDE
INVESTIGATING GRAND JURY, 1000 Madison Aven
ue (corner of Trooper and Van Buren
Roads), Third Floor, Norristown, Pennsylvania, on Mond
ay, January 12, 2015 through Friday,
January 16,2015, at 8:00 O'clock A.M. to testify and give
evidence regarding alleged violations of
the laws of the Cotnmonwealth of Pennsylvania and to remai
n until excused.
2. YOU are further ORDERED:
• FAILURE to attend may cause a warrant to be issued for
your arrest and will make you liable
under penalty oflaw for contempt of Court.
DATED: December 3,2014
Vigew Æ ðeAluda
Hon. William R. Carpenter
Supervising Judge
If you have any questions about your appearance, contact Special Prosecutor Thom
as
Carluccio, at 484,674.2899.
Notice: 123 Subpoena: 1639
CERTIFICATION QF SERVICE
I HEREBY CERTIFY that the original subpoena was duly serveki on the person named
herein on this • dav of ,20 st o'clock by
handing the same to him/her personally at
OR
Individual accepting scrviee on behalf of witness
Service accepted et
NAME of person making service
TITLE of person making service
SIGNATURE
SWORN to and subscribed
before me this day
5ot4r7 Public
RemainsUnder Seal
August 26, 2015
Exhibit C
Exhibit D
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA
IN RE: SUPREME COURT OF PENNSYLVANIA
NO. 171 M.D.D MISC. KT 2012
ME THIRTY-F1FTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS
M.D.2644-2012
INVESTIGATING GRAND JURY
NOTICE No # 123
TO THE HONORABLE WILLIAM R. CARPENTER,SUPERVISING JUDGE:
PRESENTMENT No.#
We, the Thirty-Fifth Statewide Investigating Grand Jury, duly charged to inquiie.iiitO Offenses
against the criminal laws ofthe Commonwealth, have obtained knowledge ofsuch matters from witnesses
sworn by the Court and testifying before us. We find reasonable grounds to believe that various
violations of the criminal laws have occurred. So finding with no fewer than twelve concurring,
we do
hereby make this Presentment to the Court.
Foreperson — The Thirty-Fifth Statewide
Investigating Grand Jury
DATED: Thej day ofDecember,2014
Presentment(35Ih Grand Jury)
Page #3 of 27
Exhibit E
IN THE COURT 01? COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA
IN RE: : SUPREME COURT OF PENNSYLVANIA
: NO.171 M.D. MISC DKT.2012
THE THIRTY-FIVE STATEWIDE
: MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D.2644-2012
: NOTICE NO. 123
ORDER ACCEPTING PRESENTMENT NO #60
A. The Court finds Presentment No #60 of the Thirty-Fifth Statewide
Investigating Grand Jury is within the authority of said Grand Jury and is in accordance
with the provisions of this Investigating Grand Jury Act, 42 Pa.C.S. §4541, et seq. Further
find that the deteimination •of the Thirty-Fifth Statewide favedigating Grand July is
suppoAtria by Probable Cause and establishes e.Prima Facie case against Attorney Generait
Kathleen Kane. Accordingly, this Presentment is accepted by the Court.
B. The County conducting the trial of all charges pursuant to this Presentment
shall be MontgomerY County.
C. The District Attorney for Montgomery County, or her designee, is hereby
authorized to prosecute as recommended in the Presentment by instituting appropriate
criminal proceedings iri the aforesaid County.
SO ORDERED this 191h day ofDecember,2014.
BY THE COURT:
(„)
WILLIAM R. CARP NTER, J.
Supervising Judge
EXHIBIT C
Exhibit F
FILED UNDER SEAL
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE:
SUPREME COURT DOCKET
THE THIRTY-FIFTH STATEWIDE NO. 197 MM 2014
INVESTIGATING GRAND JURY
MONTGOMERY COUNTY
COMMON PLEAS
NO. 2644-2012
OPINION
CARPENTER J. DECEMBER 30, 2014
FACTUAL AND PROCEDURAL HISTORY
On May 29, 2014, this Court in its capacity as Supervising Judge of the Thirty-
Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to believe
a further more substantive investigation" into allegations that statewide Grand Jury secrecy may
have been compromised was warranted, and on that date this Court appointed Thomas E.
Carluccio, Esquire as Special Prosecutor.
Specifically, the May 29, 2014 Order followed an in camera proceeding which
established that there was a leak of secret Grand Jury information and that the leak most likely
came from the Office of the Attorney General. Accordingly, I determined that the appointment of
a Special Prosecutor was necessary and appropriate.
ISSUES
Whether the appointment of a Special Prosecutor was proper.
II. Whether the Quo Warranto Action is now moot.
DISCUSSION
The appointment of a Special Prosecutor was proper.
Attorney General Kathleen Kane has filed a Quo Warranto Action, challenging
my action as the Supervising Judge of the Thirty-Fifth Statewide Grand Jury, to appoint a
Special Prosecutor by way of an Order dated May 29, 2014, On that date, Special Prosecutor
Thomas E. Carluccio was appointed to conduct an investigation into allegations that statewide
Grand Jury secrecy might have been compromised, after a preliminary investigation. My action
in appointing Special Prosecutor Carluccio was proper. It did not exceed my authority.
My authority for the appointment of a special prosecutor is based upon the case
of In re Dauphin County Fourth Investiciatinq Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014). This
case dealt with the appointment of an special prosecutor in connection with alleged grand jury
leaks, and the Court stated that, "[w]hen there are colorable allegations or indications that the
sanctity of the grand jury process has been breached and those allegations warrant
investigation, the appointment of a special prosecutor to conduct such an investigation is
appropriate. And, even where the investigationS of special prosecutors do not lead to
prosecutable breaches of secrecy, they may provide insight into the often-competing values at
stake, as well as guidance and context so that prosecutors and supervising judges conducting
future proceedings may learn from the examples." Id. at 504.
The Court explained the vital role a sOpervising judge in regard to the grand jury
process and emphasized the "Mhe very power of the grand jury, and the secrecy in which it
operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court
further explained as follows:
2
We are cognizant that the substantial powers exercised by
investigating grand juries, as weH as the secrecy in which the
proceedings are conducted, yield( ]the potential for abuses. The
safeguards against such abuses are reflected in the statutory
scheme of regulation, which recognizes the essential role of the
judiciary in supervising grand jury functions.
Id. at 503 — 504 (citing from In re Twenty-Fourth Statewide Investioatino Grand Jury, 589 Pa.
89, 907 A.2d 505, 512 (2006).
Thus, Pennsylvania's grand jury process is 'strictly regulated, and
the supervising judge has the singular role in maintaining the
confidentiality of grand jury proceedings. The supervising judge
has the continuing responsibility to oversee grand jury
proceedings, a responsibility which includes insuring the solemn
oath of secrecy is observed by all participants.
Id. at 504 (citations and internal quotation marks omitted).
The In re Dauphin County Court cited two cases that involved the appointment of
a special prosecutor when there were allegations of grand jury leaks. The Court first cited to a
Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com.
Pl. 2005).
In the Lackawanna Common Pleas Court case there were allegations made,
including, that e-rnail communications had been exchanged between the Lackawanna District
Attorney's Office and a newspaper reporter that divulged grand jury information, that a grand
jury witness had been contacted by the reporter a short time after the witness appeared before
the grand jury and was questioned about private matters that had been disclosed only to the
grand jury. In re Dauphin County, 19 A.3d at 504. A preliminary review by the common pleas
court judge verified only the existence of the emails that were exchanged between the reporter
and a member of the District Attorney's office during the time the grand jury was conducting the
relevant investigation. It was based upon this review that the common pleas court judge
appointed a special prosecutor to investigate the allegations of a grand jury leak. Id.
3
The Pennsylvania Supreme Court in In re Dauphin County cited an additional
example involving a special prosecutor in connection with alleged grand jury leaks and the
complex interest and values implicated in an appointment of an special prosecutor. The Court
cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937 (2008). In Castellani, the
supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in
connection with a statewide investigating grand jury tasked with investigating allegations of
abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506.
Not only is there strong precedent that permits a supervising judge to appoint a
special prosecutor when there are allegations of grand jury leaks; but also, at the time I
appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was
delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Castille. In that
letter, I explained what I had done and I ended the letter with the following language, "Please
advise if you feel that I am in error or have exceeded my authority as the Supervising Grand
Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my
letters to Chief Justice Castille have concluded with similar language. l have never been
informed that I erred or exceeded my authority.
The Supervising Judge of a Statewide Investigating Grand Jury must have
inherent authority to investigate a grand jury leak, when there is a conflict of interest as there is
here. Clearly, Attorney General Kane could not investigate herself. Otherwise potentially
serious violations of grand jury secrecy could go unaddressed.
Accordingly, Attorney General Kane's Quo Warranto Action lacks merit, and
should be denied.
11. The Quo Warranto Action is now moot.
Further, I believe that this Quo Warranto Action is now moot. On December 18,
2014, the Thirty-Fifth Statewide Investigating Grand Jury issued Presentment No. #60, finding
4
that there were reasonable grounds that Attorney General Kane was involved in violations of
criminal law of our Commonwealth, See Exhibit "B", Presentment No. #60, dated December
18, 2014; špecifically, PedUty, 18 Pa.C.S,A. §4902, False Swearing, 18 Pa.C.S.A. §4903,
Official•Oppression, 18 Pa.C.S.A. §5301 and Obstruction Administration of Law or Other
Governmental Function, 18 Pa.C.S.A. §5101. SUbsequently, on December 19, 2014, I entered
an Order Accepting Presentment No. #60. See, Exhibit "C", Order Accepting Presentrnent No.
#60, dated December 19, 2014. Furthermore, I referred the entire matter to the District Attorney
of Montgornery.Courity for any prosecution. Therefore, this Quo Warranto Action has been
rendered Moot.
Finally, the Attorney General has requested to "unseal this filing" See, Attorney
General Kane's Memorandum of Law in Support of Quo Warranto Action, December 17, 2014,
2, n. 1. If her filing is unsealed then, in fairness to the public, the mernbers of the Grand Jury,
and members of The Office of Attorney General, my Opinion and Exhibits thduld also be
unsealed,
CONCLUSION
I respectfUlly subrnit that Attorney General Kane's Quo Warranto Action lacks
merit and should be denied, In addition, it has been rendered moot.
BY THE COURT:
WILLIAM R. CARPE TER J.
SUPERVISING JUDGE OF THE THIRTY-
FIFTH STATEWIDE INVESTIGATING
GRAND JURY
5
Exhibit G
1122/2015 Grand jury recornmends criminal charges against Kane
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Attorney General Kathleen Kane recites the Pledge of Adegiance while attending the state House of Representatives'
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GALLERY: Grand jury
recommends criminal allegations that Pennsylvania Attorney General Kathleen G.
charges against Kane
Kane leaked secret information to a newspaper have found
evidence of wrongdoing and recommended that she be
criminally charged, according to numerous people familiar
with the decision.
The panel concluded that Kane violated grand-jury secrecy
rules by leaking investigative material in a bid to embarrass More videos:
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"The attorney general has done nothing wrong or illegal and,
to my knowledge, there is no credible evidence that she has,"
LISTED BYTRAVELZOO her lawyer, Lanny J. Davis, said in a statement Thursday.
'Somo taxes, tees additional
"She told the truth to the grand jury at all times. I hope the
district attomey will reach same conclusion."
Kane's tenure has been marked by controversy over the last
year, much of it generated by an Inquirer disclosure that she
had secretly shut down an undercover "sting" investigation
that had caught elected officials from Philadelphia on tape
accepting cash.
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That case was resurrected by Philadelphia District Attorney BUSINESS:
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and two state legislators with bribery. 3D TV?
If Kane is arrested, she would become the second
Pennsylvania attorney general in modern history to face
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An arrest would not affect Kane's status as attorney general.
Under the state constitution, elected officials who are charged
with a crime may remain in office until they are both convicted
and sentenced.
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In his statement Thursday, Davis questioned how The Where will Phils
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Inquirer learned about the grand jury's recommendation: "I
wonder why the supervising judge who appointed the special
prosecutor to investigate the attorney general hasn't initiated
a grand jury investigation of this leak or any of the other ENTERTAINMENT:
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For about six months, special prosecutor Thomas E.
Carluccio has been directing the grand jury as it has heard
testimony from numerous witnesses, including Kane and FOOD:
many of her top aides, to determine how details of a long-ago Burger fantasies come
investigation of a Philadelphia civil rights leader appeared in a to life at Rex 1516
Philadelphia Daily News article in June.
The article suggested that a former state prosecutor, Frank G.
JOBS:
Fina, had fumbled that investigation, and the leak appeared
6 high-satisfaction
designed to raise questions about his competence. jobs that pay more
than $100K a year
Fina and Kane have been embroiled in a months-long dispute
about how each handled cases, including the sting
investigation. Fina, once the top public-corruption prosecutor Stay Connected
in the Attorney General's Office, launched the sting in 2010, Get the latest Philly.com Daily Headlines newsletter
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Kane has acknowledged that she knew some material from
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her office was given to the newspaper, but said the material
she approved for release was not grand jury information. Her
allies have suggested that her staff may have erred by
providing additional prohibited information without her
knowledge.
The Daily News article provided details of a 2009
investigation by state prosecutors that looked into financial
matters involving J. Whyatt Mondesire, then the head of the
Philadelphia chapter of the NAACP. Mondesire was never
charged or publicly named as a subject of a probe until the
Daily News story.
He has said he did nothing wrong, and has denounced the
article and leak as unfairly damaging to his reputation.
The grand jury investigation of the leak was approved by
former Chief Justice Ronald D. Castille at the request of
William R. Carpenter, a Montgomery County Court judge.
Carpenter, a former prosecutor, presides over a statewide
investigative grand jury - one that looks into matters involving
Philadelphia and surrounding counties - that is the successor
jury to the one involved with the Mondesire matter six years
ago.
Carpenter appointed Carluccio, a criminal defense lawyer in
Plymouth Meeting and former prosecutor in Delaware, as
special prosecutor.
http://www.philly.com/philly/news/politics/20150109_Grandjury_recommends criminal charges against Attorney General Kathleen Kane.html 3/11
1/22/2015 Grand jury recommends criminal charges against Kane
Efforts to reach Carpenter and Carluccio were not successful
Thursday.
Ferman, Castille, Carpenter, and Carluccio are Republicans.
Kane has suggested that the grand jury investigation was a
partisan attack, a complaint rejected by Castille.
Castille, who retired from the bench Jan. 1, said he had
approved numerous leak investigations during his 21 years on
the high court.
In ordinary circumstances, prosecutors from the Attorney
Generars Office present cases to Carpenter's grand jury, and
the Attorney General's Office later makes an arrest based on
the paners recommendation.
In this unusual leak investigation, however, the judge handed
Ferman the role of prosecutor because she is district attorney
in the county in which the grand jury meets.
Ferman is conducting an independent review of the grand jury
presentment, sources say, a process that could take several
months.
Philadelphia lawyer L. George Parry, a former prosecutor,
said it made sense for Ferman to dig into the facts
independently.
While arrests are typically made immediately after a
presentment has been issued, Parry said, "this is really an
unusual situation.
"I wouldn't fault her at all for wanting to review this," he said.
"They are dropping a real hot potato on her. lf, in fact, there is
a presentment that calls for charging the attorney general of
Pennsylvania, I would think that any responsible adult would
want to read over things very carefully before committing to
take on the case."
Ferman announced this week that she would run for a county
judgeship in November and would serve out her term as
district attorney.
While highly unusual, the prospect of a county prosecutor
bringing a case against a statewide official is not
unprecedented nationwide.
In August, a special prosecutor appointed by a judge charged
Texas Gov. Rick Perry, a Republican, with two felonies for
allegedly trying to force a Democratic district attorney out of
office. Perry and other Republicans, and even some
Democrats, have criticized the charges as political.
cmccoy@phillynews.com
215-854-4821 @CraigRMcCoy
http://www.philly.com/philly/news/politics/20150109 Grandjury_recommends criminal charges against Attorney General Kathleen Kane.html 4/11
Exhibit 2
Brief in Support of
Petition for Review
IN THE SUPREME COURT OF PENNSYLVANIA
In re The Thirty-Fifth Statewide Brief in Support of Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012
Montgomery County Common Pleas
M.D.2644-2012
BRIEF IN SUPPORT OF
PETITION FOR REVIEW OF CONTEMPT ORDER AND ORDER
OVERRULING THE PETITIONER'S INVOCATION OF THE FIFTH
AMENDMENT BEFORE THE INVESTIGATING GRAND JURY
INTRODUCTION
The government's power to compel testimony before grand juries is not absolute.
Kastigar v. United States, 406 U.S. 441, 444 (1972). "There are a number of exemptions from
the testimonial duty, the most important of which is the Fifth Amendment privilege against
compulsory self-incrimination." Id. (emphasis added).
The privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of
our liberty. It can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to
other evidence that might be so used.
Id. at 444-45.
The applicable standard to determine the availability of the Fifth Amendment is set forth
in Ohio v. Reiner where the Supreme Court stated that the privilege extends to "witnesses who
have reasonable cause to apprehend danger from a direct answer." 532 U.S. 17, 21 (2001)
(internal quotation marks omitted). "The privilege afforded not only extends to answers that
would in themselves support a conviction under a federal criminal statute but likewise embraces
those which would furnish a link in the chain of evidence needed to prosecute the claimant for a
federal crime." Hoffman v. United States, 341 U.S. 479,486 (1951).
Far from requiring an admission of guilt by the witness, the Fifth Amendment standard
permits the invocation of the privilege by a witness professing innocence:
[W]e have never held... that the privilege is unavailable to those
who claim innocence. To the contrary, one of the Fifth
Amendment's "basic functions... is to protect innocent
men...'who might otherwise be ensnared by ambiguous
circumstances.'"
Reiner, 532 U.S. at 21. "Too many, even those who should be better advised, view this privilege
as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of
crime or commit perjury in claiming the privilege." Grunewald v. United States, 353 U.S. 391,
421 (1957). "Innocent men are more likely to plead the privilege in secret proceedings, where
they testify without advice of counsel and without opportunity for cross-examination, than in
open court proceedings, where cross-examination and judicially supervised procedure provide
safeguards for the establishing of the whole, as against the possibility of merely partial, truth."
Id. at 422-23.
PROCEDURAL HISTORY
The Thirty-Fifth Statewide Investigating Grand Jury was convened to investigate whether
"Grand Jury information from a prior Grand Jury was released by someone in the Attorney
General's Office." See Exhibit 1A attached to Petition for Review and incorporated herein. On
January 12, 2015, Petitioner testified pursuant to subpoena No. 1369, dated January 7, 2015. See
Exhibit 1B attached to Petition for Review and incorporated herein. During the course of his
1 Petitioner also testified on November 14, 2014 and November 21, 2014 pursuant to subpoena dated October 29,
2014, Notice No. 123, Subpoena No. 1497.
2
testimony, Petitioner was questioned about the frequency of communication, including text
messages, with the Attorney General. In response to these questions, Petitioner invoked his
constitutional right against being compelled to be a witness against himself as set forth in the
Fifth Amendment of the United States Constitution.
The parties presented argument to the Honorable William R. Carpenter, supervising
Judge of the Thirty-Fifth Statewide Investigating Grand Jury. The Special Prosecutor asserted
that Petitioner's Fifth Amendment privilege would only relate to whether "he was going to
perjure himself, not to implicate himself in a crime" because there was no evidence that
Petitioner "had any reason to be obligated by grand jury secrecy" with respect to the leak of
information from the prior grand jury. See Exhibit 1C to Petition for Review and incorporated
herein, Master Transcript of Proceedings of Grand Jury, January 12, 2015, p.13 (emphasis
added). In other words, in the view of the Special Prosecutor, Petitioner invoked the privilege in
anticipation of testimony that would be false.
Counsel for Petitioner argued that the issue was not one of anticipatory perjury, but
rather, Petitioner refused to testify because any testimony regarding communication with the
Attorney General could open the door to or provide a link in a chain of evidence that may
support an inference that the Attorney General engaged in an effort with Petitioner to craft his
prior grand jury testimony or craft explanations. This would necessarily involve communication
between them that previously took place by phone, text and email message, given that Petitioner
and the Attorney General did not live or work in the same city. Counsel for Petitioner cited to
phone records related to communications between him and the Attorney General that could give
rise to this inference. Phone records would reveal that Petitioner and the Attorney General
communicated in close proximity to the dates on which he testified before the grand jury.
3
The court held that Petitioner's exercise of the Fifth Amendment was "illusory, not a
proper exercise" of the privilege and held Petitioner in contempt. Id. at p. 14. The court stayed
the contempt order "pending review by the higher court." Id. at p. 15.
JURISDICTION
This is a petition for review of an order finding the Petitioner in contempt of court for
having respectfully refused to comply with an order entered on the basis of the lower court's
finding that the petitioner may not invoke his rights under the Fifth Amendment to the United
States Constitution. Accordingly, the order in the court below is final under Pa. R.A.P. 341.
Moreover and in the alternative,"orders overruling claims of privilege and requiring disclosure
are immediately appealable under Pa. R.A.P. 313." Commonwealth v. Harris, 32 A.3d 243, 251
(2011)(reaffirming Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547(1999)). Pennsylvania Rule of
Appellate Procedure 313(a) provides that "[a]n appeal may be taken as of right from a collateral
order of.. . [a] lower court." This petition is timely as it is filed within ten days of both the
lower court's contempt order, which was entered on January 12, 2015. See Pa. R.A.P.
1512(b)(3)(requiring the filing of a petition for review within ten days of the entry of a grand
jury order). Accordingly, this Court has jurisdiction over this Petition.
STANDARD OF REVIEW
The standard of review is whether the lower court abused its discretion. Commonwealth
v. Tielsch, 2001 PA Super 335, ¶ 3, 789 A.2d 216, 217(2001).
ARGUMENT
Pennsylvania law recognizes that a witness possesses a privilege against self-
incrimination. Commonwealth v. Long, 533 Pa. 388, 625 A.2d 630(1993); Commonwealth v.
Field, 231 Pa. Super. 53, 63, 331 A.2d 744, 749(1974)("The fifth amendment privilege does
4
apply to grand jury proceedings and the grand jury may not itself violate a valid privilege
whether established by the Constitution, statutes or common law."). A witness may not be held
in contempt for refusing to testify if the refusal is based on a legitimate exercise of the privilege
against self-incrimination. Commonwealth v. Reese, 467 Pa. 107, 354 A.2d 573 (1976). The trial
court must evaluate the circumstances to determine whether the proposed use of the privilege is
real or illusory. Long, 533 Pa. 388, 625 A.2d 630.
Petitioner's refusal to testify was legitimate, not illusory. By the time that Petitioner
testified in January, 2015, the Grand Jury and the Supervising Judge had made several significant
findings. On December 18, 2014, the grand jury had already found "reasonable grounds to
believe that various violations of the criminal laws occurred" in Presentment No. 60. See Exhibit
1D attached to Petition for Review and incorporated herein. The next day, the Supervising Judge
accepted the presentment. See Exhibit lE attached to Petition for Review and incorporated
herein. On December 30, 2014, the Supervising Judge issued an opinion in which he clarified
that reasonable grounds existed that "Attorney General Kane was involved in violations of
criminal law of our Commonwealth," including "Obstruction [of] Administration of Law or
Other Governmental Function, 18 Pa. C.S.A. § 5101" and referred the entire matter to the
District Attorney of Montgomery County for any prosecution. See Exhibit 1F attached to the
Petition for Review and incorporated herein.
Moreover, the grand jury's findings were no secret to anyone reading a newspaper in the
Commonwealth of Pennsylvania, including Petitioner. On January 8, 2015, four days before
Petitioner testified, the Philadelphia Inquirer publicly reported that the grand jury and the Special
Prosecutor found evidence of wrongdoing and recommended criminal charges against the
5
Attorney General, including perjury and contempt of court. See Exhibit 1G attached to the
Petition for Review and incorporated herein.
Thus, at the point in the grand jury proceedings in which Petitioner refused to testify, the
Supervising Judge had already determined that probable cause existed that the Attorney General
had obstructed justice. The Grand Jury's recommendation that charges be brought was widely
circulated by the media, despite the secrecy of grand jury proceedings. The fact that Petitioner
communicated with the Attorney General in proximity to the dates that he testified before the
grand jury could be used as a link in the chain of evidence of that he and the Attorney General
had discussed his prior testimony or that the testimony might have been crafted to cast a certain
light.
CONCLUSION
Petitioner's exercise of his constitutional rights under the Fifth Amendment was
legitimate and not illusory. For the reasons set forth above, Petitioner respectfully requests this
Court find that the lower court abused its discretion and reverse the finding of contempt against
Petitioner.
Respectfully Submitted,
Date: January 22, 2015
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
215-972-6430
6
IN THE SUPREME COURT OF PENNSYLVANIA
In re The Thirty-Fifth Statewide Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012
Montgomery County Common Pleas
M.D.2644-2012
ATTORNEY VERIFICATION
I, Catherine M. Recker, Esq., hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.
2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903,
Philadelphia, Pennsylvania 19103.
3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with
the facts and circumstances of this case.
4. This Verification is respectfully submitted in support of Joshua Morrow's Petition for
Review of Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth
Amendment Before the Investigating Grand Jury and the Brief in Support ofthe Petition
for Review of Contenipt Order and Order Overruling the Petitioner's Invocation of the
Fifth Amendment Before the Investigating Grand Jury.
5. I hereby state that the facts set forth in the Petition and the Brief in Support attached
thereto are true and correct(or are true and correct to the best of my knowledge,
information and belief) and that I expect to be able to prove the same at a hearing held in
this matter. I understand that the statements herein are made subject to the penalties of
18 Pa. C.S. § 4904.
Dated: January 22, 2015
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document upon the persons
below by first class U.S. Mail, which service satisfies the requirements ofPa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Thomas E. Carluccio, Esquire
Special Prosecutor for the Investigating Grand Jury
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting,PA 19462-2484
Date: January 22, 2015
Catherine M. Recke
UNSEALED PER
ORDER OF THE Filed in Supreme Court
COURT DATED
AUGUST 26, 2015 JAN 2 2 2015
IN THE SUPREME COURT OF PENNSYLVANIA
Middle
In re The Thirty-Fifth Statewide Motion to File Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pemisylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012 Under Seal
Montgomery County Common Pleas M.D. Misc.DM.
M.D. 2644-2012
8 2015
MOTION TO FILE UNDER SEAL
Petitioner Joshua Morrow, by and through his counsel, Catherine M. Recker, Esq., hereby
moves to file the enclosed Petition for Review of Contempt Order and Order Overruling the
Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury under seal.
1. Petitioner Joshua Morrow's Petition for Review asks that this Court hold that the Fifth
Amendment provided just cause for his refusal to answer certain questions in the grand
jury and requests therefore an order reversing the finding of civil contempt.
2. The grand jury proceedings, including the Notes of Testimony of the January 12, 2015
proceedings, are under seal. This Petition for Review, arising out of the grand jury
proceedings, should also remain under seal.
Received in Supreme Court
RECEIVED
JAN 3 2015 JAN 26 2015
*le SUPREME COURT
EASTERN DISTRICT
3. The annexed Attorney Verification is respectfully submitted in support of this Motion to
File Under Seal.
ectful Submitted,
Catherine M. Rec er
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
Counsel for Joshua Morrow
Dated: January 22, 2015
IN THE SUPREME COURT OF PENNSYLVANIA
In re The Thirty-Fifth Statewide Motion to File Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012 Under Seal
Montgomery County Common Pleas
M.D.2644-2012
CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document by U.S. Mail upon the
persons below, which service satisfies the requirements ofPa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Thomas E. Carluccio, Esquire
Special Prosecutor for the Investigating Grand Jury
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462-2484
Date: January 22, 2015
Catherine M. Rec
&NNW in &spate Court
CEil
JAN 26 2015
JAN 3 0 2015
tide SUPREME COURT
EASTERN
DISTRICT
IN THE SUPREME COURT OF PENNSYLVANIA
In re The Thirty-Fifth Statewide Motion to File Petition for Review of
Investigating Grand Jury Contempt Order and Order Overruling
(Petition of Joshua Morrow) the Petitioner's Invocation of the
Fifth Amendment Before the
Supreme Court of Pennsylvania Investigating Grand Jury
No. 176 M.D. Misc. Dkt. 2012 Under Seal
Montgomery County Common Pleas
M.D.2644-2012
ATTORNEY VERIFICATION
I, Catherine M. Recker, Esq., hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.
2. My office, Welsh & Recker, P.C., is located at 2000 Market Street, Suite 2903,
Philadelphia, Pennsylvania 19103.
3. I represent Petitioner Joshua Morrow in this matter, and as such, am fully familiar with
the facts and circumstances of this case.
4. This Verification is respectfully submitted in support of Joshua Morrow's motion to file
the enclosed Petition for Review of Contempt Order and Order Overruling the
Petitioner's Invocation of the Fifth Amendment Before the Investigating Grand Jury
under seal.
5. I hereby state that the facts set forth in this motion are true and correct (or are true and
correct to the best of my knowledge, information and belief) and that I expect to be able
fleouted in Surnme Court E EIVE
JAN 3 0 2015 JAN 26 2015
iddls SUPREME COURT
EASTERN DISTRICT
to prove the same at a hearing held in this matter. I understand that the statements herein
are made subject to the penalties of 18 Pa. C.S. § 4904.
Dated: January 22, 2015
Catherine M. Recker
Attorney ID No. 56813
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
cmrecker@welshrecker.com
215-972-6430
RECEIVED
2/6/2015 UNDER SEAL
Supreme Court
Middle District FILED
2/6/2015
IN THE SUPREME COURT OF PENNSYLVANIA Supreme Court
Middle District
MIDDLE DISTRICT
UNSEALED PER
In re The Thirty-Fifth Statewide ORDER OF THE
Investigating Grand Jury COURT DATED
18 MM 2015 AUGUST 26, 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012
MOTION FOR EXTENDED TIME TO FILE AN ANSWER
Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed
Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
1. This motion is filed under seal.
2. Respondent received a notice from the Supreme Court on February 2, 2015
indicating that Petitioners brief would be due in fourteen (14) days to be extended
by three (3) days if service was effectuated by mail.
3. Respondent learned today, February 6,2015, that the answer to the Petitioner is
due on February 9, 2015.
4. Respondent is currently in the process of answering a separate brief for the
Supreme Court that is due on February 18, 2015.
5. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed
Respondent by phone that she does not oppose this motion.
6. Respondent is requesting a three(3)week extension.
Respect lly Submitted,
<
Thomas E. Carluccio, Esq.
Attomey ID No.: 81858
Plymouth Greene Office Carnpus
1000 Germantown Pike, Suite D-3
Plymouth Meeting,PA 19462
(484)674-2899
Dated: February 6, 2015
cc: The Honorable William R. Carpenter, Judge
Catherine M. Recker, Esq.
UNDER SEAL
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
In re The Thirty-Fifth Statewide
Investigating Grand Jury
18 MM 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012
ATTORNEY VERIFICATION
Thomas E. Carluccio, Esq. hereby verify the following:
1. I am an attorney duly admitted to practice in Pennsylvania and before this Court.
2. My office, is located at Plymouth Greene Office Campus, 1000 Germantown
Pike, Suite D-3, Plymouth Meeting, Pennsylvania 19462.
3. This Verification is respectfully submitted in support of my Motion For Extended
Tirne To File An Answer Before the Investigating Grand Jury under seal.
4. I hereby state that the facts set forth in this motion are true and correct(or are true
and correct to the best of my knowledge, information and belief) and that I expect
to be able to prove the same at a hearing held in this matter. I understand that the
statements herein are made subject to the penalties of 18 Pa. C.S. § 4904.
Respectfully Submitted,
Thomas E. Carluceio, Esq.
Attorney ID No.: 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19462
(484)674-2899
Dated: February 6,2015
SEALED
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT UNSEALED PER
ORDER OF THE
COURT DATED
In re: The Thirty-Fifth Statewide : No. 18 MM 2015 AUGUST 26, 2015
Investigating Grand Jury
Petition of: Joshua Morrow : Application for Extension of Time
ORDER
AND NOW, this 9th day of February, 2015, the Special Prosecutor's "Motion for
Extension of Time to File an Answer is granted and a response to the Petition for
Review shall be filed on or before March 2, 2015.
(411#puty Prothonotary
IJNDER SEAL
FILED
2/27/2015
IN THE SUPREME COURT OF PENNSYLVANIA Supreme Court
MIDDLE DISTRICT Middle District
UNSEALED PER
In re The Thirty-Fifth Statewide ORDER OF THE
Investigating Grand Jury COURT DATED
18 MM 2015 AUGUST 26, 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012
MOTION FOR EXTENDED TIME TO FILE AN ANSWER
Respondent, Thomas E. Carluccio, Esquire, hereby moves to file this enclosed
Motion For Extended Time To File An Answer to Petitioner's Petition filed above.
1. This motion is filed under seal.
2. Respondents answer is due on March 2, 2015.
3. Respondent avers there are pending issues before this court may render this
motion either moot or withdrawn.
4. Opposing Counsel for Petitioner, Catherine M. Recker, Esq., has informed
Respondent by phone that she does not oppose this motion.
5. In addition, Opposing Counsel for Petitioner, will be out of the county from
March 7, 2015 to March 21, 2015.
6. Respondent is currently preparing for argument before The Supreme Court of
Pennsylvania on March 11, 2015.
7. Respondent is requesting a four(4) week extension.
Respectfully Submitted,
Thomas E. Carluccio, Esq.
Attorney ID No.: 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting,PA 19462
(484)674-2899
Dated: February 27,2015
cc: The Honorable William R. Carpenter, Judge
Catherine M. Recker, Esq.
RECEIVED
2/27/2015
Supreme Court
Middle District
UNDER SEAL
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
In re The Thirty-Fifth Statewide
Investigating Grand Jury
18 MM 2015
Intermediate Court Docket No:
Trial Court: Montgomery County Court of Common Pleas
Trial Court Docket No: M.D. 2644-2012
CERTIFICATE OF SERVICE
I hereby certify that I did on this date serve the foregoing document by U.S. Mail
upon the persons below, which service satisfies the requirements of Pa. R.A.P. 121:
Honorable William R. Carpenter
Montgomery County Court House
2 East Airy Street
P.O. Box 311
Norristown, PA 19404-0311
Catherine M. Recker, Esquire
Welsh & Recker, P.C.
Suite 2903
2000 Market Street
Philadelphia, PA 19103
Dated: February 27, 2015
Thomas E. Carluccio, Esquire
SEALED
IN THE SUPREME COURT OF PENNSYLVANIA UNSEALED PER
MIDDLE DISTRICT ORDER OF THE
COURT DATED
AUGUST 26, 2015
In re: The Thirty-Fifth Statewide : No. 18 MM 2015
Investigating Grand Jury
Petition of: Joshua Morrow : Application for Extension of Time —
: Second Request
ORDER
AND NOW, this 27th day of February, 2015, the Special Prosecutor's "Motion for
Extension of Time to File an Answer" is granted and a response to the Petition for
Review shall be filed on or before March 30, 2015.
Fifed in Supreme Goun
MAR 3 0 2015
---------------------U-N-D-ER-SE_A_L_ Middle
UNSEALED PER
IN RE: SUPREME COURT OF PENNSYLVANIA
ORDER OF THE
NO. 18 MM 2015
176 M.D. Misc. Dkt. 20 I 2 COURT DATED
THE 35TH STA TE WIDE
AUGUST 26, 2015
INVESTIGATING GRAND JURY
Montgomery County Court of Common Pleas
M.D. 2644-2012
Response of the Special Prosecutor in Opposition to the Petition for Review
of Contempt Order and Order Overruling the Petitioner's Invocation of the
Fifth Amendment before the Investigating Grand Jury
Thomas E. Carluccio, Esquire
Attorney 1.0. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
Dated: March 30. 2015
Received in Supreme Court
MAR 3 O 2015
Middle
RESPONSE OF SPECIAL PROSECUTOR TO THE PETITION FOR REVIEW OF
CONTEMPT ORDER AND ORDER OVVERRULING THE PETITIONER'S
INVOCATION OF THE FIFTH AMENDMENT BEFORE THE INVESTIGATING
GRAND JURY
Thomas E. Carluccio, Special Prosecutor to the Investigating Grand Jury, hereby
responds to the Petition for Review of the Contempt Order and Order Overruling the Petitioner's
Invocation of the Fifth Amendment before the Investigating Grand Jury:
I. INTRODUCTION
1. Admitted.
11. THE PARTY SEEKING REVIEW
2. Admitted.
III. .JURISDICTION
3. Admitted.
4. Admitted.
5. Admitted.
6. Admitted.
IV. THE COURT BELOW
7. Admitted.
V. THE ORDERS TO BE REVIEWED
8. Admitted.
VI. STATEMENT OF OBJECTIONS TO THE ORDERS BELOW
9. Denied, as a conclusion of law.
VII. THE RELIEF SOUGHT
l 0. Denied, as a conclusion of law. The Respondent requests that the Contempt Order be
upheld. A Brief in support of this response is attached hereto.
2
WHEREFORE, the Petition for Review of the Contempt Order and Order Overruling the
Petitioner's Invocation of the Fifth Amendment before the Investigating Grand Jury should be
denied.
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
3
VERIFICATION
I, Thomas E. Carluccio, Esquire as Special Prosecutor to the Investigating Grand Jury
Number 35 appointed by the Pennsylvania Supreme Court, hereby represent that the averments
in the foregoing Response of the Special Prosecutor in Opposition to the Petition for Review of
Contempt Order and Order Overruling the Petitioner's Invocation of the Fifth Amendment
before the Investigating Grand Jury are true and correct to the best of my knowledge,
information, and belief. I understand that false statements herein are made subject to penalties of
18 Pa. C.S.A. Section 4904 relating to unsworn falsifications to authorities.
Dated: March 30. 2015
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
4
Fifed mSupreme Coun
MAR 3 v 2015
Middll7
UNSEALED PER
UNDER SEAL
ORDER OF THE
NRE: SUPREME COURT OF PENNSYLVANIA COURT DATED
NO. 18 MM 2015 AUGUST 26, 2015
THE 35TH ST ATE WIDE I 76 M.D. Misc. Dkt. 2012
INVESTIGATfNG GRAND JURY
Montgomery County Court of Common Pleas
M.D. 2644-2012
Memorandum in Support of the Response of the Special Prosecutor in
Opposition to the Petition for Review of Contempt Order and Order
Overruling the Petitioner's Invocation of the Fifth Amendment before the
Investigating Grand Jury
INTRODUCTION
Joshua Morrow, Petitioner, has a filed a Petition for Review of the Contempt Order and
Order Overruling the Petitioner's Invocation of the Fifth Amendment and asserts that the Fifth
Amendment supports his refusal to·answcr certain questions in the Grand Jury and requests an
order reversing the finding of civil contempt. The Thirty-Fifth Statewide Investigating Grand
Jury was convened to investigate whether Grand Jury information from a 2009 Grand Jury was
released in violation of the Grand Jury Act. During the course of the Investigating Grand Jury, it
was determined that the testimony of Joshua Morrow, a political and campaign consultant to
Attorney General Kathleen Kane, would be needed.
As such, a subpoena was issued for Joshua Morrow for testimony on November 21, 20 I4.
A follow-up subpoena was issued for Joshua Morrow for testimony on January 12, 2015 for the
purpose of correcting testimony provided on November 21, 2014. Morrow did testify before the
Received in Supreme Court
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MAR 3 0 2015
Middle
Grand Jury on January 12, 2015, but anytime a question was raised concerning conversations
with Attorney General Kane, Morrow invoked the Fifth Amendment.
A hearing was conducted concerning Morrow's invocation of the Fifth Amendment,
followed by an in camera hearing behveen the Petitioner's Attorney and the Supervising Judge
without the presence of the Special Prosecutor. As a result, the parties presented Arguments to
the Grand Jury Supervising Judge William R. Carpenter. At the conclusion of the Argument,
Judge Carpenter found Mr. Morrow's exercise of the Fifth Amendment was "illusory and not a
proper exercise of the privilege and held Petitioner in contempt." On January 12, 2015 Judge
Carpenter stayed the contempt order pending the Petitioner's appeal to this court for review, and
on January 22, 2015 a timely Petition was filed with the Pennsylvania Supreme Court requesting
that the contempt order be overruled.
BACKGROUND
On November 21, 2014, Joshua Morrow testified before the Grand Jury. During that
testimony Morrow stated that at the end of April [2014], he had brief phone conversation with
Attorney General Kane. At the time of that conversation, Morrow testified that Attorney General
Kane asked Morrow to call Adrian King but nothing of substance was discussed, and he further
stated that did not know what Attorney General was calling about. (T-6, 7). Shortly thereafter,
Morrow stated he did call Adrian King, who at the time was serving as First Assistant to
Attorney General Kane. Morrow testified that, during this initial conversation, Adrian King
stated he had some documents he wanted to give to a reporter and that he would call him back.
(T-7). Morrow stated that he believes King told him the documents included a transcript and an
internal memo (T-9). Morrow stated he \Vent and picked up the documents from King in an
unsealed folder. (T-10). Morrow then stated he met with Chris Brennen of the Daily News at his
house and gave him the documents removed from the folder. (T-12 to T-15).
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On January 12, 2015, Morrow again testified before the Grand Jury to correct some
previous misstatements he made concerning Adrian King in his testimony on November 21,
2014. Morrow now stated that, upon fu11her reflection and research, he found that there was
probably no way that he had a long discussion or a substantial discussion with Adrian King about
the documents. (T-16) Morrow now testified that the envelope was sealed, and he did not recall
having any discussion about the documents with King and he wanted to correct the record. (T-4
to T-6). However, when Morrow was asked questions concerning his conversations or e-mails
with Attorney General Kane, Morrow stated throughout his testimony that, 'on advice of
counsel, I respectfully decline to be compelled to be a witness against myself' (T-7). He
continued to invoke the fifth Amendment on any question asked relating to Attorney General
Kathleen Kane.
The parties then presented argument to the Grand Jury Supervising Judge, William
Carpenter. The Court evaluated whether the invocation of the Fifth Amendment privilege was
re~! or illusory. Commonwealth v. Long 533 Pa. 388, 625 A.2d 630 (1993). After such
argument the Judge found Petitioner's exercise of the Fifth Amendment was illusory and not a
proper exercise of the privilege and held Petitioner in contempt. The court stayed the contempt
order while Petitioner appealed to this court for review.
ARGUMENT
Petitioner assertion of the Fifth Amendment privilege is illusory because there is no crime
associated with his answers except Perjury in this proceeding.
"The witness is not exonerated from answering merely because he declares that in so
doing he would incriminate himself-his say-so does not of itself establish the hazard of
incrimination. It is for the com1 to say whether his silence is justified." Hoffinan v. United
Slates, 341U.S.479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). "It is always for the court to
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judge if the silence is justified, and an illusory claim should be rejected. However, for the court
to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration
of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination
and the answers demanded cannot possibly have such tendency." Id. See Also, Commonwealth
v. Rolon, 486 Pa. 573 (1979); Commonwealth v. TreaT, 848 A.2d 147 (Pa. Super. 2004). The
Supervising Judge of the 35th Statewide Investigating Grand Jury made just such a "careful
consideration" and determined petitioner's Fifth Amendment claim illusory.
Petitioner claims that since there were charges recommended by the Grand Jury for
violations including "Obstruction [of] Administration of Law or Other Governmental Function,
18 Pa. C.S.A. § 5104" that somehow Petitioner could also be implicated in such crimes as a link
in the chain since he and Attorney General Kathleen Kane had discussion about these matters. In
addition, Petitioner claims to be political/campaign consultant for Attorney General Kane who
does not work for or in the Office of Attorney General, and was not a participant in 2009 Grand
Jury investigation of J. Wyatt Mondesire.
Petitioner believes that a blanket assertion that he is a "link in the chain" in connecting
the leaked documents from the Office of Attorney General to the media is adequate to invoke the
privilege. However, the "links in the chain" must involve a chain of criminality for the witness
and not just for another. Petitioner has failed to demonstrate how he could possibly be in
violation of the Investigating Grand Jury Act, the Criminal History Records Information Act
(CHRIA) or any provision of the Pennsylvania Crimes Code as to the release of the OAG emails,
memorandums, or transcripts relating to the 2009 Grand Jury Investigation. Any testimony
pertaining to these OAG documents would not be incriminating to petitioner; and therefore, the
invocation of the Fifth Amendment privilege is illusory. Contrast this to Attorney General Kane
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who, by virtue of her office, oath and position within the Office of Attorney General (OAG), has
a duty and responsibility under, at a minimum, the Criminal History Records Information Act
(CHRIA) and the Grand Jury Act to not release such information. These obligations do not
extend to Mr. Morrow.
Petitioner's assertion of the Fifth Amendment privilege is also illusory since he has already
placed himself as a link in the chain of evidence.
Petitioner in his testimony on November 21, 2014 and January 12, 2015 admitted that he
was the link in the chain in providing information from Attorney General Kane to the media by
delivering documents to a reporter for 'The Philadelphia Daily News' that contained Grand Jury
information; specifically, emails, the transcript of OAG Special Agent Michael Milletto (about
the Mondesire Grand Jury investigation), and a 2009 internal memorandum from The Office of
the Attorney General. As a result, the Petitioner has already admitted under oath that he is a link
in the chain of the delivery of the documents. In addition, he testified - albeit in an incomplete
and inaccurate manner - about conversations pertaining to the delivery and purpose of these .,
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documents. The Petitioner's Admission to being a link in the chain of delivering the documents
to 'The Philadelphia Daily News,' and conversations with Attorney General Kathleen Kane
could implicate those in the Office of Attorney General who directed the release, but not himself.
Petitioner cannot invoke the Fifth Amendment in an effort to shield another from liability. The
Petitioner should be compelled to provide pertinent testimony of conversations between the
Attorney General and himself as to the delivery of the documents to 'The Philadelphia Daily
News.'
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Petitioner has no right, privilege, or criminal liability; and therefore, Petitioner's
testimony should be compelled to testify about his conversation and actions concerning the
delivery of documents to 'The Philadelphia Daily News.' The Judge's Contempt Order should
not be overruled.
CONCLUSION
Petitioner's exercise of his constitutional rights under the Fifth Amendment was not
legitimate and is illusory. For the reasons set forth above, Respondent respectfully request this
Court find that the lower did not abuse its discretion and uphold the finding of contempt against
the Petitioner.
Respectfully Submitted, !;
I'
Date: March 30, 2015
Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
1.
Plymouth Greene Office Campus
I 000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484) 674-2899
Special Prosecutor of Investigating
Grand Jury No. #35
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SEALED
UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT ORDER OF THE
COURT DATED
AUGUST 26, 2015
IN RE: THE THIRTY-FIFTH STATEWIDE : No. 18 MM 2015
INVESTIGATING GRAND JURY :
:
:
PETITION OF: JOSHUA MORROW :
ORDER
PER CURIAM
AND NOW, this 18th day of May, 2015, the Application to File Under Seal is
GRANTED, and the Petition for Review is DENIED.