Court looks to limit emails considered in Eakin case
HARRISBURG – The state’s ethics court for judges said Thursday it wants more information about whether it should hold a Supreme Court justice responsible for emails with offensive content that he may not have opened.
The Court of Judicial Discipline directed Justice Michael Eakin’s lawyers and the Judicial Conduct Board to address whether those emails are relevant if there is no proof he even saw them.
Eakin, a Republican, is accused of violating behavioral rules for judges by participating in the exchange of emails with lewd and objectionable content in a scandal that has resulted in firings, resignations and reprimands for lawyers, judges and others in state government.
Eakin has apologized for “insensitive” emails but has argued his role does not merit discipline.
Eakin lawyer Bill Costopoulos told the three-judge panel the issue was of great concern to judges around the state.
“There’s no evidence they were solicited,” Costopoulos said. “There’s not even any evidence they were opened. And that’s the iceberg here. And that iceberg is what has hurt him and the judiciary in the court of public opinion and the media.”
Judge David Barton said it was easy to establish whether they were opened, but Costopoulos said that type of forensic exam has not taken place.
According to the Judicial Conduct Board, Eakin sent or responded to emails that included a joke about a woman beaten by her husband; a “sexually suggestive thread/conversation” between Eakin and a state lawyer about one of Eakin’s female employees; an explicit discussion about going to a strip club in Myrtle Beach, S.C., with golfing buddies; and a joke about an ice cream flavor, Barocky Road, named for President Barack Obama, “a blend of half vanilla, half chocolate and surrounded by nuts and flakes.”
Costopoulos asked the judges to tell him how many character witnesses they will allow so he knows how many to contact and whether he should call as witnesses judges and justices who can say whether Eakin’s work product reflected the opinions stated in the emails.
“I don’t want to have to bring in other justices,” he said. “Unless you want to hear from them.”
Other information the judges said should be addressed by the two sides in writing before trial include whether Eakin’s statements to investigators should be part of the record and whether Eakin or Judicial Conduct Board chief counsel Bob Graci disclosed their personal relationship.
Graci stepped aside from the investigation in November, after a newspaper reported he served as chairman of Eakin’s retention campaign in 2011.
Eakin’s role in the email scandal first became public in October 2014, when he notified the Judicial Conduct Board that then-Justice Seamus McCaffery, the source of some of the emails, had pressured him to take his side.
McCaffery apologized for the emails but said as an ex-U.S. Marine and policeman “coarse language and crude jokes” were part of his background, and he denied threatening Eakin. McCaffery was suspended and later retired abruptly.
Attorney General Kathleen Kane, a Democrat, produced additional Eakin-related emails to the court and ethics agencies in September, after Eakin and the four other justices voted to suspend her law license as she fights criminal charges she leaked secret grand jury material and lied about it. Kane has asked the Supreme Court to reinstate her as a lawyer, arguing Eakin should not have participated in the suspension vote.
A trial date in Eakin’s case has not been scheduled.
Lawyers told the judges Thursday that the trial, to be held in Harrisburg, could last several days. If Eakins is convicted, his potential punishment includes removal from the bench.