A member of the judicial panel weighing sanctions against state Supreme Court Justice J. Michael Eakin over offensive emails was himself a recipient of pornographic messages exchanged among another justice and law enforcement officials, documents obtained by The Inquirer show.
Eugene Dooley, one of 12 members of the state Judicial Conduct Board, was among a small group of friends who received emails containing sexually explicit content from former Supreme Court Justice Seamus McCaffery and others. McCaffery resigned from the bench after the porn scandal erupted last fall.
Dooley was on the board when it voted last year to clear Eakin of misconduct over his emails -- a review that was revived last month after Attorney General Kathleen G. Kane made public a troubling set of Eakin emails and lambasted the conduct board, suggesting it had given him a pass.
Dooley, a former top Philadelphia police commander who is now chief of police in East Whiteland Township, did not respond to numerous phone calls and emails at his workplace.
Robert Graci, the conduct board's lawyer, would not say Friday whether Dooley disclosed to the board that he had received similar messages from another justice, McCaffery. He also declined to say whether Dooley had recused himself from voting to clear Eakin last year -- or if he would recuse himself in the fresh review of the justice's emails.
Graci said the board's actions are private -- even though Eakin, a Republican, waived confidentiality on the detailed review letter clearing him, allowing it to be made public.
"All proceedings of the board are confidential," Graci said.
In an interview last month, Graci told The Inquirer he believed that the full 12-member board had voted on the Eakin matter.
Last week, Graci, a Republican and a former Superior Court judge who has been the board's counsel since 2012, said he would step aside from any further involvement in the renewed Eakin investigation.
He did so after the Philadelphia Daily News reported that he had worked on Eakin's 2011 retention campaign as the campaign's lawyer. The newspaper reported that Graci has been described in news accounts as a "longtime Eakin friend."
Graci has no vote on the board but supervises its office, staff attorneys, and investigators.
Asked about Dooley's emails, Charles Geyh, a specialist on judicial ethics at Indiana University's law school, said in an interview that they posed a conflict for Dooley. At the least, Geyh said, disclosure was needed.
"When you are potentially part of the problem you are expected to evaluate, you probably shouldn't be sitting on those cases," he said. Ethics expert Geoffrey C. Hazard Jr., an emeritus professor at the University of Pennsylvania Law School and the Hastings College School of Law in San Francisco, went further, saying Dooley should have recused himself.
"You can't purport to be neutral in that circumstance," he said.
'A little paradoxical'
Hazard also took aim at the board's position that its proceedings are confidential. "It is a little paradoxical that a board constituted to create greater transparency and trust in the judiciary is itself quite untransparent," he said.Some of Dooley's emails, obtained by The Inquirer, show he received at least 11 messages with sexually explicit content -- including naked women and women engaged in sex acts -- from McCaffery and others in 2008 and 2009.
Some were also sent by McCaffery to a onetime agent in the Attorney General's Office, who blasted them out to other prosecutors and investigators there. One such explicit email, made public in a filing by Kane to the state Supreme Court, was sent in 2009 to Dooley's official email at the East Whiteland Township Police Department.
Kane, who raised an alarm about the X-rated emails after learning that her office's computers served as a hub for their exchanges in past years, has never provided a full public accounting of the email traffic. As a result, it's not known how many Dooley might have received or sent.
McCaffery, a Democrat and former Philadelphia policeman who served on the force with Dooley, sent the emails from a private account. He retired from the high court last fall, one week after his colleagues on the Supreme Court ordered the Judicial Conduct Board to investigate his role in the emails.
At the time, the court hired an outside lawyer to review the emails of all justices between 2008 and 2012. The review, by Pittsburgh lawyer Robert Byer, found that McCaffery traded several hundred X-rated messages -- but that Eakin's emails were "unremarkable."
The Judicial Conduct Board conducted its own review of Eakin's emails, concluding last year that his emails were only "mildly pornographic" and clearing him of any ethics violations. The board has the power to recommend sanctions against judges to the state Court of Judicial Discipline.
The matter was considered closed -- until Kane resurrected it last month. New complaint
She leveled a fresh complaint against the justice shortly after she had emerged from a court hearing in her pending criminal case on charges of perjury, conspiracy, and other offenses. Prosecutors say she unlawfully leaked grand jury material and then lied under oath about her actions. Kane, a Democrat, contended that her desire to expose the scandal -- and what she has called an entrenched porn-swapping culture among prosecutors, judges, and others in the criminal-justice system -- led to her legal troubles.
In her criticism of Eakin last month, Kane accused him of having sent and received "racial, misogynistic pornography" on state computers. She also made public a set of emails sent to him, including one that showed an obese couple having sex.
She suggested that reviews last fall by the Judicial Conduct Board and the Supreme Court were flawed and had let Eakin off easy.
Eakin, 66, has apologized and said the emails do not reflect his character.
Byer, the first expert hired by the state Supreme Court, for his part, had also cleared Eakin, calling his emails "unremarkable."
After Kane's public criticism, the high court and the Judicial Conduct Board began new investigations.
The high court's new review, made public this month, found that Eakin, using the name "John Smith," sent or received about 1,000 emails that were captured by the attorney general's computer servers between 2008 and 2014. Kane flagged about 65 as offensive.
Of the troubling emails, Eakins was the recipient in a heavy majority, and the sender in only a handful. Among those he sent was one with a picture of a topless woman and another with a supposed joke mocking battered women.
In the end, the high court decided earlier this month to leave any discipline in the hands of the Judicial Conduct Board.
(c)2015 The Philadelphia Inquirer
