IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: MR. JUSTICE SEAMUS P. MCCAFFERY: No. 430
OF THE SUPREME COURT OF :
PENNSYLVANIA : Judicial Administration Docket
CONCURRING STATEMENT
MR. CHIEF JUSTICE CASTILLE
I join in the immediate suspension of Justice Seamus P. McCaffery and the
appointment of special counsel for the Court. However, I respectfully would not refer
this matter to the Judicial Conduct Board. In our recent case of In Re: Bruno, --- A.3d --
-, 2014 WL 4915942 (Pa. 2014), this Court agreed that prosaic complaints about judicial
misconduct would go to the Judicial Conduct Board for initial review and that this Court
would only step in and assume jurisdiction in extraordinary circumstances. In my
opinion, the conduct of Justice Seamus P. McCaffery is such a circumstance. The most
recent misconduct of Justice McCaffery -- forwarding sexually explicit pornographic
emails to employees of the Attorney General’s Office (and, in one instance, an email
depicting a naked 100 year-old woman as the target of a sexually explicit joke and a
video of a woman in sexual congress with a snake that is clearly obscene and may
violate the Crimes Code Section on Obscenity) has caused the Supreme Court to be
held up to public ridicule. This conduct deserves the immediate action as implemented
by this Court today. It would be impossible for this Court to function effectively while
Justice McCaffery sits on this Court. His so-called “lapse in judgment” lasted, at least,
for many years as an adult. It is more than a lapse in judgment – it has caused
unmitigated turmoil in the justice system and has indirectly cost several state
prosecutors and high ranking state officials their public careers. At least several of
those individuals have had the decency to resign, whereas the instigator of the
pornographic emails still draws a taxpayer’s salary.
Justice McCaffery by his comments fails to acknowledge the significance of his
“lapse” and blames others for this “lapse of judgment.” He blames the US Marine Corps
for coarse language and crude jokes. He blames the US Air Force for the same
conduct, even though a Reserve Colonel in the Air Force would have been court
martialed for similar conduct. He blames the Philadelphia Police Department for the
same, although the Police Department would never condone this type of misogynistic
behavior. Finally, Justice McCaffery blames me for what he deems a “cooked up
controversy” when, in fact, he was the originator of the emails sent to a government
agency, and the emails were then made public by the Attorney General’s Office. This
Court and I had no idea whatsoever that Justice McCaffery was using court equipment
to forward this material – we do not monitor a Justice’s email. This alleged “cooked up
controversy” has cost the careers of others and perhaps even several marriages. As
importantly, Justice McCaffery’s conduct has brought this Court into enormous
disrepute.
Justice McCaffery blames me for a series of egregious acts of misconduct on his
part. However, it was not I who caused his wife to be cited for driving the wrong way on
Market Street. It was not I who caused Justice McCaffery to meet with the main
Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket
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which was then dismissed by a Traffic Court judge who later pled guilty to federal
crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file
which was then officially brought to my attention as part of the review of Philadelphia
Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme
Court employee, permission to run a law practice out of a Supreme Court chambers,
earning millions of dollars. It was not I who referred that matter to the US Attorney’s
Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to
assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for
his services to the Philadelphia Court system for his professional work. Justice
McCaffery claims that I targeted him because of his assertions that I mishandled the
Luzerne County juvenile court disaster. As a fact, no such opposition was ever voiced
by Justice McCaffery until years after the fact; and, in fact, Justice McCaffery joined the
Court’s unanimous orders respecting Luzerne County. Justice McCaffery never voiced
any concern over the planning and construction of the just-opened Family Court
Building at 15th and Arch Streets, unless he did so anonymously in the press and by his
denigrations of my reputation to others. In fact, Justice McCaffery doubted the building
would ever be built. He was wrong.
Justice McCaffery is correct in one of his allegations against me. I have been
attempting to remove Justice McCaffery from this Court. In my two decades of
experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done
as much to bring the Supreme Court into disrepute. No other Justice has failed to live
up to the high ethical demands required of a Justice of this Court or has been the
constant focus of ethical lapses to the degree of Justice McCaffery.
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Lastly, there is the recent report that Justice J. Michael Eakin was being “asked”
by Justice McCaffery to have my public report to the citizens concerning the general
content of the pornographic emails Justice McCaffery sent to the Attorney General’s
Office be withdrawn from the public realm, or else Justice McCaffery would see to the
release of other emails allegedly implicating Justice Eakin in similar conduct (although
as yet not identified). In my opinion, that sort of threat borders on criminal conduct. I
can see little reason why Justice Eakin would implicate Justice McCaffery in these
threats after Justice Eakin self-reported the email account to the Conduct Board, unless
the charged conduct by Justice McCaffery actually occurred. It would seem that this
report of possible misconduct by Justice Eakin to the Judicial Conduct Board now raises
an ethical conflict on the Board’s part, thereby calling for an independent review of
Justice McCaffery’s conduct.
Notably, Justice Eakin has stepped forward and has voluntarily asked for a
review of the materials released through Justice McCaffery who clearly had knowledge
of the content and the provenance of the emails. This is in contrast to the conduct of
Justice McCaffery, who continues to blame others for the ethical lapses arising from his
own volition and deliberate conduct.
This Court has a scheduled argument session in the week of November 17,
2014. My question will be: How would it be possible for a court of seven members to
sit in judgment of matters as the Commonwealth’s court of last resort when one Justice
has brought this level of public contempt by his own actions and has threatened another
Justice to intervene illegally on Justice McCaffery’s behalf to change or alter fact-finding
in relation to Justice McCaffery’s pornographic emails? Of even more import, how can
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any party or litigant believe their matter will be heard and decided impartially while these
scurrilous charges and accusations remain unresolved?
As a prosecutor in the Philadelphia District Attorney’s Office, I often had the
occasion to review pre-sentence psychiatric reports, although I do not claim to be an
expert in the field. One pathology that I do recall, and as confirmed in a review of a
prominent medical journal, describes the pathology of an individual who has the
personality traits of not caring about others, thinking he or she can do whatever is in that
person’s own self-interest and having little or no sympathy for others. The most telling
pathology is that when that person is caught, or called out for his transgressions, that
person does not accept blame but instead blames others for his or her own misconduct.
Those pathological symptoms describe a sociopath. So far in the blame game, Justice
McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police
Department, Chadwick Associates, the US Attorney and the FBI, Attorney General
Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising
from actions all initiated by him, but thought by him to be of little consequence: just a
few “cooked up controversies” by his perceived tormentors.
I agree that this Court cannot continue to function while Seamus McCaffery sits
as a Justice. There is no way that citizens could have confidence in the moral authority
of the Pennsylvania Supreme Court. If we do not have the confidence of our citizenry,
all we as a Court do is for nothing. That is why I support the immediate suspension of
Justice McCaffery.
While I respect the work of those persons appointed to the Judicial Conduct
Board, I am fully aware of the lack of resources and manpower to investigate charges of
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this unique significance. In the past, this Court has had to loan $35,000 to the Conduct
Board to meet payroll when the Legislature denied the Board’s budgetary needs. The
AOPC has even had to lend the expertise of our IT department to set up a case
management computer program and system when the Board had not had the ability to
do so because of a lack of adequate funding. To undertake an investigation of Justice
McCaffery’s ethical failures will be an enormous effort by the Judicial Conduct Board
which I can only hope will be accomplished by the deadlines in this Court’s order.
For these reasons, left to my own devices, I would immediately refer this matter
to an outside neutral fact-finder for a report and recommendations.
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