In Re: Special Prosecutor, Thirty-Fifth Statewide Investigating Grand Jury

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE: SPECIAL PROSECUTOR, : No. 2 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

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 upon such terms.
 Filed in Supreme Gout
JAN 7 2014

Middle
UNSEALED PER
ORDER OF THE
COURT DATED
AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: : SUPREME COURT No.

GRAND JURY DOCKETS:
SUPREME COURT OF PA
SPECIAL PROSECUTOR, No. 176 MD 2012
THIRTY-FIFTH STATEWIDE • MONTGOMERY CO. COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012

EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF

AND NOW,this 7th day ofJanuary,2015,comes Patrick R.Reese, by counsel,

William A. Fetterhoff, Esq., and presents the following:

JURISDICTION

1. The Supreme Court of Pennsylvania has jurisdiction pursuant to the

Judiciary Article ofthe Constitution ofthe Commonwealth ofPennsylvania, Article

5, Section 2(jurisdiction of the Supreme Court); Article 5, Section 10 (supervisory

authority ofthe Supreme Court); and the first clause of Section 1 ofthe Schedule to

the Judiciary Article (power and jurisdiction of the Supreme Court); and further
Received In Supreme Court

JAN 0 7 2015

Middle
pursuant to the Judicial Code, 42 Pa.C.S.A. §721(3) (original jurisdiction of the

Supreme Court in quo warranto); and §726 (extraordinary jurisdiction of the

Supreme Court); as implemented by Pa.R.A.P. 3307 (pleadings in original actions)

and 3309(King's Bench matters).

APPLICANT

2. The Applicant is Supervisory Special Agent Patrick R.Reese, an employee

of the Pennsylvania Office of Attorney General(OAG). Special Agent Reese is a

member ofthe Protection Detail for Attorney General Kathleen Kane. Among other

duties, Special Agent Reese is a driver for Attorney General Kane. Special Agent

Reese has an office in the OAG Scranton Regional Office,417 Lackawanna Avenue,

Scranton, PA 18510, and resides at 939 Meade Street, Dunmore,PA 18512.

3. On January 7,2015 Special Agent Reese,through counsel,accepted service

of a subpoena issued by Special Prosecutor Thomas E. Carluccio. The subpoena

requires Special Agent Reese to appear and testify on January 12, 2015 before the

Thirty-Fifth Statewide Investigating Grand Jury sitting in Montgomery County.

4. The Applicant, by virtue of having been served with a subpoena to appear

and testify, has standing to challenge the legality ofthe office of Special Prosecutor

appointed to the Thirty-Fifth Statewide Investigating Grand Jury. Gwinn v. Kane, 19

Pa.Cmw1th. 243, 339 A.2d 838, 840-843 (1975), disposition affirmed, 465 Pa. 269,

2
348 A.2 900(Pa. 1975).

FACTUAL BACKROUND

5. On June 6, 2014 an article appeared in the Philadelphia Daily News

concerning a 2009 grand jury investigation of.T. Whyatt Mondesire,a former head of

the NAACP in Philadelphia, and Harriet Garrett, one ofMr.Mondesire's employees.

Exhibit A.

6. The 2009 statewide investigating grand jury had been convened and

impaneled in Montgomery County.

7. The Philadelphia Daily News article cited two documentary sources: First,

a 2009 memo written by then-Deputy Attorney General William Davis,Jr., addressed

to then-ChiefDeputy Attorney General Frank Fina and then-Senior Deputy Attorney

General E. Marc Costanzo; and Second, a 2014 transcript of a taped interview by

David Peifer, Director of the OAG Bureau of Special Investigations, of Michael

Miletto, the OAG special agent who had earlier investigated Mr. Mondesire and Ms.

Garrett. Exhibit A.

8. Following publication ofthe June 6,2014 Philadelphia Daily News article,

a Special Prosecutor(Thomas E. Carluccio,Esq., an attorney in private practice) was

appointed and authorized to utilize the Thirty-Fifth Statewide Investigating Grand

Jury to investigate the alleged "leak" of alleged "grand jury material" by employees

3
of the OAG,or other persons, to the Philadelphia Daily News.

9. The written communications, applications, petitions, orders, notice of

submission, and all other documents underlying the appointment of the Special

Prosecutor and submission of this investigation to the grand jury are under seal. It

has been publicly reported that the appointment of the Special Prosecutor in this

matter was authorized by the Supreme Court and by Order of Supervising Judge of

the Grand Jury William R. Carpenter. Exhibits B, C, and D.

BASIS FOR EXTRAORDINARY RELIEF

10. The Investigating Grand Jury Act, 42 Pa.C.S.A. §§4541 et seq., does not

provide for appointment of any special prosecutor.

11. The Commonwealth Attorneys Act, 71 P.S. §§732-101 et seq., does not

provide for the appointment of any special prosecutor.

12. The sole provisions in Pennsylvania law for appointment of a special

prosecutor apply only in the event that an elected county District Attorney has been

charged with crime or wilful and gross negligence in office. County Code, 16 P.S.

§§1405-1406. See similar provisions at 16 P.S. §7710 concerning counties of the

first class; and 16 P.S. §§4405-4406 concerning counties of the second class.

13. Pa.R.A.P. 3331 provides for review by the Supreme Court of"An order

relating to the supersession ofa district attorney by an Attorney General or by a court,

4
or to the appointment, supervision, administration or operation of a special

prosecutor." This rule does not create any independent substantive authority for the

appointment of any special prosecutor, and must therefore be construed to apply

solely to cases arising under the above-cited provisions of the County Code.

14. The consideration of a special prosecutor in Dauphin County Grand Jury

Investigation Proceedings(No. 3), 322 Pa. 358,2 A.2d 809(1938), was held to have

been authorized by a 1929 Legislative enactment which was repealed upon passage

of the Commonwealth Attorneys Act, supra, in 1980. Former section 907 of the

Administrative Code of1929,71 P.S. §297,authorized President Judges ofthe Courts

ofCommon Pleas to request in writing that the Attorney General intervene in criminal

matters and supersede the local District Attorney. See statutory history:

Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747, 751, fn. 1 (1983). Thus,

reliance upon the 1938 case by the Lackawanna County Court in In re: County

Investigating Grand Jury VIII, 2003, 2005 WL 3985351 (Pa.Com.P1. 2005)for the

general proposition that Pennsylvania courts have traditional or inherent authority to

appoint special prosecutors, was misplaced. See section II(C)ofthat Opinion,p.9-10,

titled "Appointment of Special Prosecutor."

15. Another Lackawanna County grand jury later gave rise to a proceeding on

the issue of whether the Pennsylvania Shield Law, 42 Pa.C.S.A. §5942, protects a

5
newspaper reporter from compelled disclosure ofthe source of a grand jury leak. In

Castellani v. The Scranton Times, 956 A.2d 937 (Pa. 2008), the Supreme Court,

while addressing the Shield Law,mentioned in passing that the Supervising Judge of

the Grand Jury had appointed a Special Prosecutor to investigate a leak, but as the

validity of the appointment was not at issue, no authority for the appointment was

cited.

16. In In Re Dauphin County Fourth Investigating Grand Jury, 947 A.2d 712

(Pa. 2008), grand jury leaks had been complained of by individuals subject to

investigation. The Supreme Court issued aper curiam Order under the King's Bench

authority of42 Pa.C.S.A. §726,directing the Supervising Judge ofthe Grand Jury "to

consider whether a special prosecutor should be appointed to pursue the

allegations..." No authority in support ofthe contemplated appointment ofa special

prosecutor was cited. Id., 712. Subsequently, a special prosecutor was appointed,

although, again, the later full Opinion by the Supreme Court does not cite any

authority relied upon for the appointment. In Re Dauphin County Fourth

Investigating Grand Jury, 19 A.3d 491 (Pa. 2011).

17 In disapproving the appointment of a special prosecutor by the

Philadelphia Court of Common Pleas,to supersede the local District Attorney in the

conduct ofa grand jury investigation, outside the terms of71 P.S. §297,the Supreme

6
Court of Pennsylvania expressly held that Pennsylvania courts had no such exta-

statutory authority, and "there is no public office in Pennsylvania known as Special

Prosecutor." Smith v. Gallagher, et al, 408 Pa. 551, 185 A.2d 135,149(1962). The

Supreme Court in Smith pointedly disapproved the proposition that Pennsylvania

courts have inherent independent power to appoint special prosecutors, as follows:

[T]he intervening appellants say that Judge Alessandroni did have
the jurisdiction and the authority to order a special grand jury and
appoint a special prosecutor. The oral and written arguments submitted
in behalf of this thesis, however, lack conviction or even persuasion.
They speak vaguely ofinherent authority, common law jurisdiction and
traditional powers.

Id., 146; and at length further at 151-154.

18. Although Smith v. Gallagher was decided by the Supreme Court in 1962,

nothing in either the Investigating Grand Jury Act or the Commonwealth Attorneys

Act, both adopted in 1980, has corrected the lack of authority to appoint special

prosecutors vigorously pointed out by Justice Musmanno in 1962. Mere lapse oftime

has not provided new constitutional or statutory authority. Indeed,since repeal of71

P.S. §297 by the Commonwealth Attorneys Act in 1980, 71 P.S. §732-502, no case

has been found at any level of the Pennsylvania judiciary which has cited any

constitutional or statutory authority for the appointment of a special prosecutor.

19. There was no necessity for the appointment of a special prosecutor in this

7
matter, since, according to publicly known facts, several county District Attorneys

had jurisdiction to both investigate any "leak" by the OAG and prosecute any crime

found to have been committed. Such county District Attorneys appear to include, at

a minimum,those serving Montgomery County(site ofthe 2009 grandjury),Dauphin

County (site of the principal office of Attorney General Kane and numerous other

OAG officers and employees), and Philadelphia County (site of the Philadelphia

Daily News). Reinforcing the availability of at least those three counties, the

Investigating Grand Jury Act by its own terms expresses a preference for county

grand juries over multi-county grand juries, unless "the investigation cannot be

adequately performed by an investigating grand jury under section 4543 (relating to

convening county investigating grand jury). 42 Pa.C.S.A. §4544.

20. The argument that the appointment of a special prosecutor was necessary

since the Office of Attorney General would have had a conflict of interest in

investigating itself does not answer either: (1) the complete absence of statutory

authority for such an appointment; or(2)the availability ofseveral alternative county

District Attorneys to whom the investigation could have been referred.

21. The appointment of Special Prosecutor Thomas E. Carluccio, and the

proceedings of the Thirty-Fifth Statewide Investigating Grand Jury related to any

matter submitted or actions taken by the Special Prosecutor, were and continue to be

8
without legal authority, and null and void ab initio.

WHEREFORE,it is requested that the Supreme Court vacate the original Order

appointing a Special Prosecutor in this matter under the applicable Notice of

Submission or otherwise. It is further requested that the Supreme Court prohibit

enforcement of all subpoenas issued by the Special Prosecutor under the authority of

the Supervising Judge ofthe Grand Jury; and further prohibit issuance of any report

or presentment by the Thirty-Fifth Statewide Investigating Grand Jury based on any

matter submitted to the grand jury by the Special Prosecutor.

Respectfully submitted,

William A. Fetterhoff, s
Fetterhoff and Zilli
218 Pine Street
Harrisburg,PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

9
State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya...

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State A.G. probed Philly NAACP
leader Mondesire's finances 5 years
ago Shocking.
BY CHRIS BRENNAN, Daily News Staff Writer
brennacaphillynews.com, 215-854-5973 French
4 Heart Attack
Signs
POSTED: June 06, 2014 Video
ownahealthyheart.com STATE ATTORNEY General Kathleen Kane is reviewing a 2009 If you do not know
These 4 Things grand-jury investigation of J. Whyatt Mondesire, former head of the French, you've got
Happen Right Before a NAACP in Philadelphia, and one of his employees, according to ' to see'this brilliant
Heart Attack. documents obtained by the Daily News. video before it's gonE
What's My Mondesire's employee, Harriet Garrett, and her daughter pleaded You'll be absolutely
House Worth? guilty in 2010 to stealing nearly $220,000 in state grant money for a blown away from itl
trulia.com job-training program. Garrett was sentenced to a minimum of six
See your Home's months in jail and ordered to pay restitution. Her daughter got 18 Play Video 4)0
Market Value Free & It months probation
Just Takes Seconds

A 2009 memo written by then-Deputy Attorney General William Davis
SHOCKING DISCOVER r
Arrest Warrant Jr. says investigators "uncovered what appeared to be questionable
Records spending" of state money by Mondesire.
persopo.com
1) Type Name - Searcl Kane, a Democrat, is now trying to determine what happened with the
Free! 2) See Anyone's Mondesire investigation. Gov. Corbett, a Republican, was the attorney
Warrant Records general at the time.
Instantly
Mondesire, 64, says he was never questioned and denies any financial
2016 wrongdoing.
Presidential Poll
townhall.com/StrawPoll The 2009 Davis memo detailed for his bosses what had been
Which GOP presidentia uncovered about Mondesire and Garrett, who worked at the You'll Never Believe What They ,
hopeful would be the Philadelphia Sunday Sun, a weekly newspaper Mondesire publishes.
best candidate? Vote! Found Hiding in Your Stomach IVidtuj
A nonprofit called Next Generation Community Development Corp.,
3 Credit Scores which is operated by Mondesire, held a state-government grant for a
jobs-training program in 2004 and 2005, but handed it off to Garrett, We Recommend
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who ran another nonprofit called Creative Urban Education Systems,
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View your latest Credit
or CUES, according to the Davis memo. The Rev. Carl Fitchett to lead Philly
Scores from All 3 NAACP
Mondesire was listed as chairman of the CUES board, the memo
bureaus in 60 seconds April 18, 2014
fnr noted, while Garrett served as the treasurer for Next Generation's
board.
Questions over Philly NAACP finances
Davis wrote his memo to then-Chief Deputy Attorney General Frank January 24, 2014
Fina and then-Senior Deputy Attorney General E. Marc Costanzo.
Board members from NAACP leader's
Corbett, as attorney general, named Fina in 2006 to head a new nonprofit sue to see the books
public-corruption unit and Costanzo to work on cases for the unit in the June 6, 2014
Philadelphia region.

Fina and Costanzo now work in a similar unit for District Attorney Seth
Mondesire's friends-turned-foes get
\Ari!hams.
access to his books
June 12, 2014
In the memo, Davis wrote:

Next Generation's bank-account records, obtained with a grand-jury
subpoena, showed deposits of $1.3 million in government grants in a
one-year period.

Another $521,000 in the account came from political campaigns, rent
payments and the intermingling of money from the Sunday Sun, which
is owned and operated by Mondesire, the memo said.

Next Generation paid $2,273 to the Philadelphia Club, a private and
exclusive club in Center City.

Next Generation spent "tens of thousands," writing checks to pay
Mondesire's American Express bill for "clothes, food, lodging gas and
entertainment" and a loan from Mellon Bank. There were also checks
written to Mondesire and to "cash." FREE Pocket Knife
Annual. Membership for only S25
* Next Generation wrote checks for $169,960 to Charles and Claudia
Tasco and their company, C&C Construction.(Charles Tasco is the son

1 of4
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State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya...

of City Councilwoman Marian Tasco, a friend and political ally of Mondesires for more than three decades.)

* $6,431 in CUES money was given to Mondesire for what Garrett called consulting. That type of expense was not allowed,
according to the rules of the grant.

In "various correspondence between Garrett and Mondesire discovered by investigators, she questioned payments of more
than $70,000 he made to Claudia Tasco.

*CUES paid $1,099 for health insurance for Mondesire.

Davis wanted to question Mondesire - and possibly subpoena him for sworn grand-jury testimony - about Garrett, CUES and
Next Generation.

Never questioned
Mondesire, a former Inquirer reporter who served as the top aide to the late U.S. Rep. Bill Gray, said no one from the A.G.'s Office
ever questioned him.

"We didn't use any money for personal gain," Mondesire said.

He said that he has not seen the A.G. Offices documents and twice declined an offer from the Daily News to review them.

Mondesire said C&C Construction worked on four properties, including the NAACP headquarters and his newspaper office, where
the Next Generation non-profit is also located.

"We bought supplies with my American Express card for construction," he said.

"They never asked me a single question back in 2009. We rehabbed the buildings. We spent money buying stuff for the buildings,
construction and paying off developers."

Garrett declined to comment about the investigations. Her daughter did not respond to requests for comment.

The May 2010 news release about Garrett's arrest featured Corbett laying out the charges.

Corbett did not respond this week to two questions: Was he briefed on the Mondesire investigation and did he play a role in
deciding what happened with that probe?

Mondesire was suspended by the NAACP's national headquarters in April after he feuded publicly with board members about the
finances of the local chapter and Next Generation.

Those board members - Sid Booker, Donald "Ducky" Birts and the Rev. Elisha Morris - also were suspended.

Booker and Morris, who say they are still Next Generation board members, are now asking a Common Pleas judge to force
Mondesire to show them the nonprofit's financial records.

As a judge considers that request, Kanes staff is reviewing what became of the 2009 Mondesire probe.

David Peifer, who heads the A.G.'s Bureau of Special Investigations, on March 21 interviewed Michael Miletto, the special agent
who investigated Garrett and Mondesire.

The Daily News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next Generation's bank account, the transcript shows.

"When I did that, I found that there was a whole bunch of money that appeared to me to be donations to the NAACP, not
[Mondesire], and they were going into Next Generation's account and they were being used for [Mondesires] lifestyle - much of it,"
Miletto told Peifer.

Miletto said he was taken off the case after Fina and Costanzo were told about the probe, according to the transcript.

Miletto said "criminal activity was just ignored after that. He added that two accountants who had worked for Mondesire had
provided taped statements, with one asking for immunity and the other asking for protection.

Fina and Costanzo declined to comment about the Mondesire investigation, citing the secrecy of grand-jury proceedings.

Davis, now in private practice, also declined to comment, citing the same restriction.

Miletto, who still works for the A.G.'s office, also declined to comment.

Peifer referred questions to Kane's communications staff.

J.J. Abbott, a spokesman for Kane, declined to comment.

The Kane-Fina feud
Fina and Costanzo have a complicated and controversial relationship with Kane.

Kane criticized Corbett's tenure as attorney general when she ran for office in 2012, specifically targeting the Penn State
child-abuse scandal that sent former assistant football coach Jerry Sandusky to prison.

Kanes staff is now conducting an extensive review of that investigation.

Fina led the Sandusky probe.

Kane, on Feb. 5, issued a statement noting that her offices Sandusky review had been underway for one year, adding that delays
in the undertaking "will be described in more detail when the report is made public."

A month later, the Inquirer reported that Kane declined to pursue an investigation previously led by Fina and Costanzo, starting in
2010, that used Philadelphia lobbyist Tyron Ali as a confidential informant to tape conversations with four PhiIly state
representatives and a former Traffic Court judge, On the tapes, the representatives and judge accept cash or gifts from Ali.

Kane has said Fina dropped 2,033 criminal counts against Ali, who had been charged with stealing $430,000 from a state
program, 24 days before she was sworn into office.

She said that "extraordinarily lenienr deal "crippled the chance of this case succeeding in prosecution."

Fina, in a letter published by the Inquirer a week after the first story ran, called on Kane to explain her decision.

2 of 4 1/3/2015 9:13 AM
State A.G. probed Philly NAACP leader Mondesire's finances 5 year... http://articles.philly.com/2014-06-06/news/50390468_1_memo-whya...

The Inquirer also published a letter that day from Fina's boss, Williams, critical of Kane.

Kane eventually turned over the Ali case file to Williams, who is now examining whether charges can be brought against the four
representatives and the Traffic Court judge, who is currently on trial in an unrelated federal corruption case.

On Twitter: TgChrisBrennanDN
Blog: ph.lyiPhillyClout.com

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Montco lawyer leading inquiry into
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SHOCKING DISCOVER'i'

You'll Never Believe What They
Thomas E. Cartuccio is a defense lawyer and Republican. Found hlidina in Your Stomach [Video}

By Angela Couloumbis and Craig R. McCoy,inquirer Staff
We Recommend
Writers
POSTED: September 04, 2014 Kane denies bid to release controversial
e-mails
A veteran lawyer from Montgomery County is the special prosecutor September 25, 2014
heading the inquiry into whether state Attomey General Kathleen G.
Kane's office leaked grand jury information in an effort to discredit her Kane to decide whether to release state
critics, The Inquirer has leamed. workers racy e-mails
September 21, 2014
Thomas E. Carluccio, a criminal defense lawyer in Plymouth Meeting
GALLERY: and former prosecutor in Delaware, was appointed over the summer by
Thomas E. Castille jabs Kane on gravity of inquiry
Carluccio is a a Montgomery County judge to explore how secret records became December 15, 2014
defense public this year about a 2009 investigation by the Attorney General's
lawyer... Office involving Philadelphia political activist J. Whyatt Mondesire, Special prosecutor probes Pa. Attorney
according to several people familiar with the matter. General's Office
September 1, 2014
No charges were brought against Mondesire in the case. The
investigation, details of which appeared in a June story in the
Philadelphia Daily News, took place before Kane became attorney
general. Find More Stories About

Carluccio did not respond to messages left by phone and e-mail Special Prosecutor
Tuesday. Renee Martin, Kane's acting director of communications, said
the office would have no comment. Kane

The Inquirer first reported news of the special prosecutor's appointment
on Sunday. Sources said investigators in the inquiry have issued
subpoenas to Kane's office and others.

Carluccio was appointed by Judge William Carpenter, the supervising
grand jury judge in the eastern part of the state, the sources said. Both
men are Republicans. Kane is a Democrat.

Though there have been past leak inquiries, this appears to be first
time the state attorney general or top staffers in the office have come
under scrutiny. Such an inquiry typically requires the approval of the

6C6e*
file:///ClUsers/FETTER-1/AppData/Local/Temp/RNEMUH95.htm 1/3/2015
Montco lawyer leading inquiry into whether Kane's office leaked grand jury information -... Page 2 of 3

chief justice of the Pennsylvania Supreme Court, according to a
4 Hei spokesman for the Administrative Office of Pennsylvania Courts. Is Ken Fisher nutS?
Attac A person who violates grand jury secrecy rules may be found guilty of ,S.ome Wall Streeters might think he is,

SignE contempt of court and sentenced to up to six months in prison.

Carluccio, 57, worked as a state deputy attorney general in Delaware
'because Ken,. famous Forbes columnist and
head of Fisher investments. is giving eway
ownahe... his new Report to investors with $500,000
before switching sides to work as a defense attorney in Pennsylvania.
I or rnore portfolios. Is that you? You should
I hese 4 His wife, Carolyn Tornetta Carluccio, is a judge. A Republican, she
I have this.timely Report, with a stock
Things joined Carpenter on the Montgomery County Common Pleas bench in
fOrecast you won't find anywhere else. You'll
2010.
Happen ,1 .;Aee quickly: Ken FiSher not only.in't nuts.
Betore a The leak to the Daily News involved a 2009 investigation by former I He's the ene with the brains.
Heart At Chief Deputy Attorney General Frank G. Fina and onetime Senior
GQT.THAT? GET THIS: CLICK HERE,
Deputy Attorney General E. Marc Costanzo. Fina, who handled the
offices highest-profile criminal cases, left his position shortly after Kane
took office.

Heated battle
Fina and Kane have been locked in a heated battle over the last two years on how certain cases were handled.

Kane, for instance, brought in a former federal prosecutor after she was elected to review Fines prosecution of former Penn State
football coach Jerry Sandusky on child sex-abuse charges.

During her campaign for office, Kane said the Sandusky probe might have been delayed for political reasons. The independent
review found no evidence of that.

And for the last six months, Kane has faced criticism for shutting down a sting operation launched by Fina that sources and
investigative documents say captured five Philadelphia Democrats, including four state legislators, on tape accepting money or
gifts.

As criticism over the sting case mounted, the Philadelphia Daily News reported in early June that Kane was conducting a review of
Fina's handling of a 2009 investigation into Mondesires finances.

The newspapers story discussed, among other things, a secret investigative memo summarizing the status of the Mondesire
probe.

Mondesire, the former president of the Philadelphia NAACP, has denied any wrongdoing.

Explicit e-mails
The leak investigation has been complicated by a separate but intense legal fight over the exchange of sexually explicit e-mails
among former and current state officials.

The e-mails have become an issue because some Kane critics argue that Kanes office is using the threat of their release as a
way to silence criticism of her, sources have told The Inquirer.

The messages were discovered during Kane's review of the Sandusky investigation, which involved going through thousands of
documents.

The Inquirer has reported that the e-mails were shared on state computers and sometimes through government e-mail accounts.
They are said to have contained pornographic images, jokes, cartoons, and other private messages.

Though not all of the recipients are known, some of the material circulated among scores of officials, from homicide investigators
in the Attorney General's Office to state prosecutors and other state officials, including top Pennsylvania jurists, The Inquirer has
reported.

While Judge Carpenter in Montgomery County is overseeing the leak probe, a different judge, Norman A. Krumenacher 3d, of
Cambria County, has jurisdiction over the e-mail issue.

Several news organizations, including The Inquirer, have put in right-to-know requests for the e-mails. But Krumenacher has
ordered a stay on the release of the e-mails.

He oversees the grand jury in Western Pennsylvania as well as the legal issues involving Kanes review of the Sandusky
prosecution. The e-mails in questions were unearthed by computer experts as part of that review.

acouloumbis@phillynews.com

717-787-5934 ©AngelasInk

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Pennsylvania AG Kane grand jury may miss New Year's Eve deadline l TribLIVE Pìge 1 of 2

Return to Sto Print This PagA'118 Larger text Smaller text

Pennsylvania AG Kane grand jury may miss New
Year's Eve deadline

AP
Attorney General Kathleen Kane speaks during a news conference Friday, June 27, 2014, at the Capitol in
Harrisburg, Pa.

1By Brad Bumsted
Monday, Dec. 29, 2014, 11:21 p.m.

HARRISBURG — There's nothing magical about the
New Years Eve deadline for a grand jury to finish its
LIVE
work examining whether Attorney General Kathleen
Kane violated grand jury secrecy by leaking documents
to a Philadelphia newspaper, and the outcome could take weeks or months to be revealed, legal experts
said.
Several people close to parties involved in the investigation suggest the grand jury could continue to
meet through mid-January.
"We don't discuss the grand jury activities. It is not public," Kane's spokeswoman, Renee Martin, said.
Kane's lawyers have said she did nothing wrong and committed no crime.
Even if resolution of the matter is imminent, experts said, the result may not be.
"There's no way to anticipate the timeline," said longtime criminal defense attorney William C.
Costopoulous of Lemoyne in Cumberland County.

11:6* c
file:///C/Users/FETTER-1/AppData/Localifemp/3GZ4UM3Z.htm 1/6/2015
Pennsylvania AG Kane grand jury may miss New Year's Eve deadline TribLIVE Page 2 of 2

Judges sometimes seal grand jury presentments. And the grand jury's recommendations could be
referred to a district attorney, who may decide that further investigation is necessary.
The results could range from clearing Kane, or making no report; directing Kane to explain at a hearing
why she should not be held in contempt of court; or recommending criminal charges such as perjury or
obstruction of justice.
If the grand jury finds no wrongdoing or need for a critical report, it could issue a report specifically
clearing the parties involved, Costopoulous said.
"The range of possibilities is fairly broad," said Bruce Antkowiak, a former federal prosecutor and law
professor at St. Vincent College in Unity.
Kane testified last month before the grand jury in Montgomery County and acknowledged that she knew
her office provided the Philadelphia Daily News information from a 2009 case about a man never charged
with a crime, possibly to embarrass a former prosecutor with whom Kane is feuding.
Kane of Clarks Summit near Scranton is the first woman and first Democrat elected as attorney general.
She said she believed the material leaked was not covered by grand jury secrecy.
The investigation of a statewide law enforcement official by a court-appointed special prosecutor is
unusual, if not unprecedented, experts said. Pennsylvania Supreme Court Chief Justice Ronald D.
Castille, who must retire Wednesday because he is 70, appointed as prosecutor Thomas Carluccio, a
Norristown attorney selected by Montgomery County Judge William Carpenter.
Castille said there's precedent for court-appointed special prosecutors to handle grand jury leaks.
But since the state's first elected attorney general took office in 1980, none has undergone such an
inquiry, said G. Terry Madonna, a political science professor at Franklin & Marshall College in Lancaster.
Former Attorney General Ernie Preate, a Scranton Republican, resigned in 1995 upon pleading guilty to a
federal mail fraud charge.
With grand jury secrecy, some "assumptions must be made" to analyze the investigation, said former
Montgomery County District Attorney Bruce Castor, a Republican county commissioner.
"The first assumption I make is that the special prosecutor has no enforcement authority over the laws of
the commonwealth," Castor said.
"Anything the special prosecutor uncovers could be inadmissible if it was gathered by a person without
the authority to do so."
That may result in a referral of any findings to a district attorney, who may want to "reinvestigate" by
talking with witnesses and reviewing documents, Castor said.
Castor and experts believe the court has authority to decide contempt of court, which they consider an
"offense against the court." The penalty for contempt in a grand jury leak is up to six months in prison.
There's inherent authority for the court to investigate a leak when "there is a conflict of interest,"
Antkowiak said. Kane "could certainly not investigate herself."
"If there's no solution, a potentially serious criminal act goes unaddressed,'' Antkowiak said.
Kane has said she intends to seek re-election in 2016. But a critical grand jury report could be "very
nasty" and affect her career, Castor said. Nothing prevents the transfer of the grand jury's work to
another grand jury, if needed, though that could cause legal obstacles and delays, he said.
Brad Bumsted is Trib Total Media's state Capitol reporter. Reach him at 717-787-1405 or
bbumsted@tribweb.com.
Copyright © 2015 — Trib Total Media

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Stakes are high for Kane at grand jury meeting Page 1 of 5

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For AG Kane,stakes
in probe run high
Over the last year, Pennsylvania Attorney General Kathleen
GALLERY: Stakes are high G. Kane has stumbled from one professionally damaging
for Kane at grand jury
meeting matter to another.
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outside NoLibs strip
Now she faces another obstacle - and potentially the biggest club
yet.

Early this year, a statewide grand jury meeting in Norristown
is expected to decide whether the onetime rising political star • Tollefson's charity
theft trial set
violated prosecutorial rules by leaking secret information to
embarrass her enemies.

For Kane, the stakes are high: The grand jury could go so far
as to recommend criminal charges, putting her in the
awkward position of defending herself against allegations that

O
file:///C:/Users/FETTER-1/AppData/Local/Temp/RU2PJT27.htm 1/5/2015
Stakes are high for Kane at grand jury meeting Page 2 of 5

she broke the law while serving as the states top enforcer of laU
law.

Even supporters acknowledge that the next few weeks could
mark a make-or-break moment in her career. The risks range Holt • ,.-.1-ptiER ^

from a written rebuke, to being found in contempt of court, to
CIR ERE ;,CIRCULAik
a criminal charge of obstructing justice. FUIAITURE

"The next few weeks will be a turning point for her," said John
! DOLLAR GENERAL,
Morganelli, the Democratic district attorney in Northampton
County in the Lehigh Valley. "If it ends in a contempt citation
by a judge, it may not be devastating. But if there are crimes-
code violations, that could be problematic."
file, SAVINGS Tre81-
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Kane, a Democrat, has acknowledged that her office released
OillerOhl '
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information about a grand jury case run by her Republican
predecessors. But she has contended that the information
was not confidential grand jury material.
Also on Philly.com
She has also strongly suggested that the leak investigation is BUSINESS:
aimed at destroying her politically. Judge to weish sale of
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"I am fighting for an end to abuse of the criminal justice
system," Kane said in November, as she was heading in to
the grand jury to testify. "If this can be done to me as attorney
general, the chief law enforcement officer of the fifth-largest Is sugar making us
state in the country, I am sickened to think what can and may sick?
be done to regular, good people."
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The leak inquiry was authorized in the summer by former
state Supreme Court Chief Justice Ronald D. Castille, a
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Republican. The grand jury meets in secret, and, in an be interesting
unusual move, witnesses before the panel have been ordered
not to discuss their testimony publicly, according to two
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Expanded inquiry

The investigation involved alleged financial improprieties by J. Stay Connected
$17.99(5% off) Whyatt Mondesire, the former president of the Philadelphia Get the latest Philly.com Daily Headlines newsletter
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NAACP. It was overseen by then-state prosecutor Frank G.
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The grand jury has expanded its inquiry to examine Kanes
decision in the fall to release the names of eight men who

fileINClUsers/FETTER-1/AppData/Local/Temp/RU2PJT27.htm 1/5/2015
Stakes are high for Kane at grand jury meeting Page 3 of 5

traded pornographic e-mails on state time, The Inquirer has
learned. All eight had ties to Fina.

Kane's political star began to dim last year after The Inquirer
reported that she had shut down a sting investigation
launched.by Fina, even though the undercover operation had
caught public officials on tape accepting cash. To some, the
story in the Daily News seemed designed to strike a
counterblow at Fina.

In a mirror image of the criticism Kane has sustained over the
sting, the newspaper article suggested that Fina had failed to
aggressively pursue the Mondesire matter.

Fina was among scores of current or former staffers in the
Attorney General's Office who exchanged sexually explicit
e-mails, and Kane has been intent on naming him in
connection with that, as she did with the eight officials, The
Inquirer has reported.

But sources say the judge supervising the leak inquiry issued
an order several months ago effectively barring Kane from
citing Fina's name publicly. The judge did so after Fina and
others argued that Kane was using the threat of releasing the
e-mails to intimidate them.

A year of controversy

After a landslide victory in 2012 that made her the first woman
and first Democrat elected attorney general in the state, Kane
swiftly built a national reputation in her first year in office for
her stands in favor of gay rights and gun control.

Her second year, though, was marked by controversy over
the sting, her retractions of public statements, and repeated
shake-ups of her staff. Amid that, she could not point to any
high-profile convictions to change the subject: The
Pennsylvania Turnpike pay-to-play corruption case she
announced with fanfare early in office fizzled late last year
without any defendant receiving a jail sentence.

While admitting the disclosure of information to the Daily
News, Kane - who declined comment for this article - has said
the material was passed on "in a way that did not violate
statutory or case law regarding grand jury secrecy."

Her contention: that Pennsylvania law has no statute that
binds an attorney general to grand jury secrecy. indeed, the
state law establishing investigative grand juries makes no
mention of the attorney general. Rather, it imposes secrecy
rules on the participants in the jury room, and it names them -
"juror, attorney, interpreter, stenographer," adding: "All such
persons shall be sworn to secrecy, and shall be in contempt
of court if they reveal any information which they are sworn to
keep secret."

One of Kane's lawyers, Lanny J. Davis, has noted that when
the Mondesire grand jury was in session in 2009 - and

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Stakes are high for Kane at grand jury meeting Page 4 of 5

participants swore secrecy oaths - Kane was a stay-at-home
mom.

"It is our legal opinion that there has never been a case
decided where a succeeding attorney general has been
accused of violating an oath that she never took," Davis said
in an interview late last year.

Beyond that, Kane contends that she authorized only a very
limited disclosure of information to the Daily News: a
document related to a review she launched last March
examining how Fina dealt with the Mondesire allegations in
2009. Mondesire, who has denied any wrongdoing, was not
charged in the inquiry, which ended years ago.

Overzealous staff?

Yet the article also quoted heavily from a 2009 internal memo
detailing allegations against Mondesire. Kane maintains she
has no idea how that particular document got to the
newspaper. In effect, she is suggesting that perhaps
overzealous members of her staff may have erred in putting
together the information given to the newspaper.

Finally, Kane's allies are questioning the very legality of the
investigation, saying no explicit statute permits such a leak
investigation.

Castille has rejected this argument, citing among other things
a state law that gives the high court the broad power to
"cause right and justice to be done."

Nor are such leak inquiries unprecedented. The high court
has authorized them at least twice before. In a 2007 case, the
investigation led to the jailing of an investigator from the
Attorney General's Office.

G. Terry Madonna, the political analyst, says any finding that
Kane broke the law would be devastating to her image. Her
post is closely tied to issues of character and integrity,
Madonna said.

"You are innocent until proven guilty," he said. "But she is the
state's top law enforcement officer. Any way you frame it, she
is going to be in an extraordinarily tenuous position."

acoulournbisQphillynews.com 717-787-5934(MAngelasInk

Angela Couloumbis and Craig R. McCoy
Inquirer Staff writers

190 COMMENTS . Reprints & Permissions

file:///ClUsers/FETTER-1/AppData/Local/Temp/RU2PJT27.htm 1/5/2015
 CERTIFICATE OF SERVICE

Pursuant to Pa.R.A.P. 121 and 122, the undersigned certifies that a true and

correct copy ofthe foregoing document was served on the individual listed below on

the date indicated by e-mail and first class United States mail.

Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Madison Avenue
Norristown, PA 19403
E-mail: mailto:tomc3@comcast.net
Telephone:(484)674-2899

,
January 7, 2014 A/illiaw,
William A. Fetterhoff,
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

10
 Filed in Supreme Goun
JAN 7 2014

A/liddle
UNSEALED PER
ORDER OF THE
COURT DATED
AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: : SUPREME COURT No.

GRAND JURY DOCKETS:
SUPREME COURT OF PA
SPECIAL PROSECUTOR, No. 176 MD 2012
THIRTY-FIFTH STATEWIDE • MONTGOMERY CO. COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012

EMERGENCY APPLICATION
FOR
LEAVE TO FILE ORIGINAL PROCESS

AND NOW,this 7th day ofJanuary, 2015,comes Patrick R.Reese, by counsel,

William A. Fetterhoff, Esq., and presents the following:

1. This Emergency Application For Leave To File Original Process is filed

pursuant to Pa.R.A.P. 3307.

2. The accompanying Emergency Application For Extraordinary Relief

invokes the jurisdiction of the Supreme Court under both 42 Pa.C.S.A. §721(3)

(original jurisdiction ofthe Supreme Court in quo warranto), and 42 Pa.C.S.A. §726
Received In Supreme Court

JAN 0 7 2015

Middle
(extraordinary or King's Bench jurisdiction).

3. In reference to the jurisdiction of the Supreme Court under 42 Pa.C.S.A.

§721(3) only, leave to file the accompanying Emergency Application For

Extraordinary Relief is requested on the ground that the Special Prosecutor in this

matter was authorized by the Supreme Court,and such authorization would therefore

not be subject to review by the Supervising Judge of the Grand Jury or any lesser

court. While all documents filed to the grand jury dockets in this matter are under

seal, it has been publicly reported that Supervising Judge ofthe Grand Jury William

R.Carpenter issued the Order appointing the Special Prosecutor in this case,pursuant

to a specific grant of authority by the Supreme Court to make such appointment.

4. The accompanying Emergency Application For Extraordinary Relief has

also been filed pursuant to King's Bench jurisdiction under 42 Pa.C.S.A. §726, and

is not subject to Pa.R.A.P. 3307.

WHEREFORE,it is requested that leave be granted under Pa.R.A.P. 3307 to

include within the accompanying Emergency Application For Extraordinary Relief,

a concurrent basis for relief under 42 Pa.C.S.A. §721(3).

2
 Respectfully submitted,

William A. Fetterhoff, E
Fetterhoff and Zilli
218 Pine Street
Harrisburg,PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

3
 CERTIFICATE OF SERVICE

Pursuant to Pa.R.A.P. 121 and 122, the undersigned certifies that a true and

correct copy ofthe foregoing document was served on the individual listed below on

the date indicated by e-mail and first class United States mail.

Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Madison Avenue
Norristown,PA 19403
E-mail: mailto:tomc3@comcast.net
Telephone:(484)674-2899

January 7, 2014
William A. Fetterhoff, Es
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

4
 Fileo upreme Court
JAN 7 2014

tvliddle
UNSEALED PER
ORDER OF THE
COURT DATED
AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: : SUPREME COURT No.

GRAND JURY DOCKETS:
SUPREME COURT OF PA
SPECIAL PROSECUTOR, No. 176 MD 2012
THIRTY-FIFTH STATEWIDE • MONTGOMERY CO. COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012

EMERGENCY APPLICATION FOR STAY
OF
GRAND JURY PROCEEDINGS

AND NOW,this 7th day ofJanualy,2015,comes Patrick R. Reese, by counsel,

William A. Fetterhoff, Esq., and presents the following:

1. This Emergency Application For Stay of Grand jury Proceedings is filed

pursuant to Pa.R.A.P. 3309(d) and Chapter 17.

2. The Applicant has been subpoened by the Special Prosecutor to appear and

testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12,

2015 Received in Supreme Court

JAN 0 7 2015
 3. Orderly review by the Supreme Court of the companion Emergency

Application For Leave To File Original Process and Emergency Application For

Extraordinary Relief cannot occur prior to January 12, 2015.

4. The appointment of the Special Prosecutor in this matter was without any

authority under Pennsylvania law, as set forth in the companion Emergency

Application For Extraordinary Relief. The Applicant has accordingly presented a

meritorious Application.

5. In the absence ofa stay,the Applicant's opportunity to secure relief, or even

consideration of any entitlement to relief, will be frustrated, and he will suffer the

immediate and irreparable harm of being compelled to testify pursuant to subpoena

issued by a Special Prosecutor appointed without lawful authority.

6. Determination by the Supreme Court ofthe legality ofthe office of Special

Prosecutor and any legal authority for the appointment of the Special Prosecutor is

a matter ofimmediate and substantial public importance and interest.

WHEREFORE, it is requested that the Supreme Court issue a stay of the

proceedings ofthe Thirty-Fifth Statewide Investigating Grand Jury as related to the

matters being presented to that Grand Jury by the Special Prosecutor and described

in the companion Emergency Application For Extraordinary Relief.

2
 Respectfully submitted,

,1
William A. Fetterhoff,
Fetterhoff and Zilli
218 Pine Street
Harrisburg,PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

3
 CERTIFICATE OF SERVICE

Pursuant to Pa.R.A.P. 121 and 122, the undersigned certifies that a true and

correct copy ofthe foregoing document was served on the individual listed below on

the date indicated by e-mail and first class United States mail.

Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Madison Avenue
Norristown,PA 19403
E-mail: mailto:tomc3@comcast.net
Telephone:(484)674-2899

January 7, 2014 Attt4. 4
William A. Fetterhoff,
Fetterhoff and Zilli
218 Pine Street
Harrisburg, PA 17101
Telephone: 717 232-7722
FAX: 717 233-4965
E-mail: wfetterhoff@live.com
PA Supreme Court ID 23148
Attorneyfor Patrick R. Reese

4
 Filar in•uprerne Court
JAN 9 ¿üís
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT Middle
UNSEALED PER
ORDER OF THE
IN : SUPREME COURT OF PENNSYLVANIA COURT DATED
: NO. 2 MM 2015 AUGUST 26, 2015
TH THIRTY,FIFTH STATEWIDE
: MONTGOMERY COUNTY COMMON PLEAS
INVUTIGATING GRAND JURY : M.D. 2644-2012

SEALING ORDER

AND NOW, this 9th day of January, 2015, it is hereby ORDERED, that the attached Opinion of

January 9, 2015 be filed under seal with the Supreme Court of Pennsylvania until further Order of this

Court.

BY THE COURT:

Supervising Judge

Received in Supreme Court

JAN 9 2015

Middle
 FILED UNDER SEAL

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE:
SUPREME COURT DOCKET
THE THIRTY-F1FTH STATEWIDE NO. 2 MM 2015
INVESTIGATING GRAND JURY
MONTGOMERY COUNTY
COMMON PLEAS
NO. 2644-2012

OPINION

CARPENTER J. JANUARY 9, 2015

FACTUAL AND PROCEDURAL HISTORY

Patrick R. Reese, Supervisory Special Agent for the Pennsylvania Office of the

Attorney General ("QAQ") was subpoenaed to testify before the Thirty-Fifth Statewide

Investigating Grand Jury on January 12, 2015. In response to this subpoena, pn January 7,

2015, Special Agent Reese filed an Emergency Application for Extraordinary Relief

("Emergency Application") currently before the Pennsylvania Supreme Court, seeking to stay

the Thirty-Fifth Statewide Investigating Grand Jury proceedings based upon his allegation that

the appointment of the Special Prosecutor, Thomas E. Carluccio, by me, as the Supervising

Judge of the Thirty-Fifth Statewide Investigating Grand Jury, was improper.

Special Agent Reese seeks to vacate the order appointing Special Prosecutor

Carlupcio, prohibit enforcement of all subpoenas issued by the Special Prosecutor and further

prohibit issuance of any report or presentment by the Thirty-Fifth Statewide Investigating Grand

Jury. See, Motion for Extraordinary Relief 1/7/15, Wherefore clause, p. 9. Special Agent
 Reese's Emergency Application should be denied based upon his lack of standing; and even if

he does have standing, his Emergency Application should be denied because a supervising

judge of a statewide grand jury has the inherent authority to appoint a special prospcutor.

This Emergency Application was never served upon me. I had no knowledge of it

until I was made aware of it by the Pennsylvania Supreme Court. Not only was thp basic and

common curtesy of properly serving this Emergency Application upon me ignored; but also,

counsel never presented any asppct of this matter to me for adjudication. This matter shpuld

have come before me as a motion to quash a grand jury subpoena. Perhaps counsel was trying

to make an end run around the possibility that such a motion would be denied, and would not be

prpwtly appealable as an order denying a motion to quash is considered interlocutory. In re

Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007), the

Pennsylvania Supreme Court discussed the interlocutory nature of an ordpr denying a motion to

quash, and the prpper procedure for challenging such an order as follows:

As a general rule, an order denying a motion to quash a subpoena
is considered interlocutory and not subject to immediate appeal.
pne seeking to challenge the propriety of a grand jury subpoena
must generally choose between complying with the subpoena and
litigating the validity through contempt proceedings. Requiring the
choice between compliance with the subpoena and the possibility
of contempt preserves the interest in expeditious grand jury
proceedings.

[Me have consistently held that the necessity for expedition in the
administration of the criminal law justifies putting one who seeks
to resist the production of desired information to a choice between
compliance with a trial court's order to produce prior to any review
of that order, and resistance to that order with the concomitant
possibility of an adjudication of contempt if his claims are rejected
on appeal. Further, the approach facilitates development of an
adequate factual record in support of the reasons supporting
resistance to the subpoena.

Id., 943 A.2d 929, 934 - 935 (Pa. 2007)(internal quotation marks and citations omitted). By filing

this Emergency Application rather than a motion to quash, Special Agent Reese is trying to

2
 bypass thQse concerns, and get directly in front of the Pennsylvania Supreme Court without

following the proper procedure, and arguably without the proper standing.

By way of a brief background, on May 29, 2014, I, 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 Ote I appointed Special

Prosecutor Carluccio. The May 29, 2014 Order followed an in camera proceOing 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.

Special Agent Reese was served with a subpoena to appear and testify on

January 12, 2015, before the Thirty-Fifth Statewide Grand Jury. On January 7, 2015, Special

Agent Reese filed the Emergency Application for Emergency Relief currently before the

Pennsylvania Supreme Court.

ISSUES

Whether
. . Reese lacks standing to bring this action.
Special, Agent

11. Whether the appointment of Special Prosecutor Carluccio was proper.

III. Whether an uniust result will occur if the requested relief is granted.

DISCUSSION

l. Special Agent Reese lacks standing to bring this action.

Special Agent Reese was subpoenaed to testify before the Thirty-Fifth Statewide

Investigating Grand Jury, and claims that by virtue of this subpoena he has standing to

challenge the legality of the office of Special Prosecutor, relying on Gwinn v. Kane, 339 A.2d

838 (Pa.CmwIth. 1975).

3
 Generally, a quo warranto action can only be instituted by the Attorney General

or by the local district attorney. A private person will have standing to bring a quo warranto

action only if that person has a special right or interest in the matter, as distinguished from the

right or interest of the public generally, or if the private person has been spepially damaged.

Spykerman v. Levy, 491 Pa. 470, 485-86, 421 A.2d 641, 649 (1980).

In Gwinn v. Kane, the Pennsylvania Commonwealth Court concluded that a

plaintiff, who had been indicted by a special prosecutor the Attorney General appointed to

investigate bribery and corruption in the awarding of public contracts, had standing to bring a

guo warranto action to challenge the appointment. The same concerns or "special right or

interest is not present in this case, where Special Agent Reese has rnerely been called to

testify as a witness before the Thirty-Fifth Statewide Investigating Grand Jury.

If all subpoenaed witnesses who did not want to testify before the grand jury

could file a quo warranto action with the Pennsylvania Supreme Court rather than a motion to

quash with the Statewide Supervising Grand Jury Judge if he or she believed it would result in

an unfavorable ruling, then all those similarly situated could make an end run around the

process and procedure set forth by the Pennsylvania Supreme Court in In re Dauphin County

Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007).

11. The appointrnent of Special Prosecutor Carluccio was proper.

My authority for the appointment of a special prosecutor was based upon the

case of In re Dauphin County Fourth Investigating 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

4
appropriate. And, even where the investigations of special prosecutors do not lead to

prosecutable breaches of secrecy, they may provide insight into thp 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." kL at 504.

The Court explained the vital role a supervising judge in regard to the grand jury

procpss and emphasized the "[t]he very power of the grand jury, and the secrecy in which it

operatps, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court

furthgr explained as follows:

We are cognizant that the substantial powers exercised by
investigating grand juries, as well 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 Investigating 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 VII! (Lack. Com.

Pl. 2005).

In that case there were allegations made, including, that e-mail 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

5
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.

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 Tjrnes, 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 Cy the prison guards. In re Dauphin County, 19 A.3d at 506.

Not only is there strong precedent that permits a supervising jydge to appoint a

special prosecutor vyhen there pre 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. I have never been

informed that I erred or exceeded my authority.

Additionally, Special Agent Reese argues in his Emergency Motion that "[t]here

was no necessity for the appointment of a special prosecutor I this matter, since, according to

publicly known facts several count District Attorneys had jurisdiction to investigate any 'leak by

6
the QAG and prosecute any crime found to have been committed.'' See, Emergency Motion for

Extraordinary Relief 1/7/15 p. 8 ¶19. Special Agent Reese is only correct to the extent that

under the Grand Jury Act, Section 4551(d), 42 Pa.C.S.A, provides that "[i]n any case where

rnulticounty investigating grand jury returns a presentment the supervising judge shall select the

county for conducting the trial from among those counties having jurisdiction." 42 Pa.C.S. §

4551(d). However, at the time of the appointment of Special Prosecutor Carluccio there was no

clear indication which county might ultimately have jurisdiction to prosecute criminal charges. It

wasn't even known whether an investigation into the leak would have resulted in criminal

charges. It could have resulted in a finding of contempt. Therefore, it was not clear which county

would have been appropriate to investigate the leak. Asking a county District Attorney to use the

resources of their office to investigate a matter for which they might never have jurisdiction is

simply not appropriate.

The Supervising Judge of a Statewide Investigating Grand Jury must have the

inherent authority to appoint a special prosecutor when appropriate. The Supervising Judge of

Statewide Investigating Grand Jury must have the inherent authority to use the resources of that

Grand Jury to investigate breaches of grand jury secrecy. Without the inherent authority of the

Supervising Judge to appoint a special prosecutor and use the resources of the grand jury,

leaks of secret grand jury materials by members of the OAG would not be properly and timely

addressed. Additionally, the Supervising Judge would be severely hampered in carrying out the

duties of the position as Supervising Judge.

III. An unjust result will occur if the requested relief is granted.

Finally, if relief were to be granted, the result would be unjust. The maximum

term of the Thirty-Fifth Statewide Investigating Grand Jury expires on January 16, 2015.

Granting the requested relief would forever prevent the Thirty-Fifth Statewide Investigating

Grand Jury from ever hearing the testimony of Special Agent Reese. That would be unjust. This

7
Grand Jury has heard the testimony of all of the other relevant witnesses in this matter. Asking

Special Agent Reese to tell the truth before the Thirty-Fifth Statewide Investigating Grand Jury

is not prejudicial to him. Rather, it allows the Thirty-Fifth Statewide Investigating Grand Jury to

finish its work regarding the allegation of the leak of secret Grand Jury information. A law

enforcement officer such as a Special Agent should honor a subpoena and should tell the truth.

CONCLUSION

I respectfully submit that this Emergency Application for Extraordinary Relief be

denied.

BY THE COURT:

WILLIAM R. CARPENTER J.
SUPERVISING JUDGE OF THE THIRTY-
FIFTH STATEWIDE INVESTIGATING
GRAND JURY

8
EXHIBIT "A"
 PRESIDENT JUDGE COURT OF COMMON PLEAS
WILLIAM J. PURGER. JR.
ASSOCIATE JUDGES
SENIOR JUDGES •
JOSEPH A. SMYTH
WILLIAM T. NICHOLAS
STANLEY R. OTT
S. GERALD CORSO
BERNARD A. MOORE
CALVIN S. DRAYER, JR.
WILLIAM R. CARPENTER
KENT H. ALBRIGHT
RHONDA I.-EE DANIELE ARTHUR R. TILSON
EMANUEL A. BERTIN MONTGOMERY COUNTY
THOMAS M. DELRICCI THIRTY-EIGHTH JUDICIAL DISTRICT
R. STEPHEN SARRETT
NORRISTOWN, PENNSYLVANIA
Trfpp4,%s C. PRANCA
STEYEN T. O'NEILL 19404
THOMAS r. RDGERs
BARRETT D.?ADE
KELLY C. WALL
CAROLYN TORNETTA CARLUCCIO
WENDY DEMCHICK-ALLOY
pATRICIA E. COONAHAN
LOJS EisNgR MURPHY
GA:RY S. SILOW
RICHARD P. HAAZ
CHERYL L. AUSTIN
GAR. A. WEILHEIMER
STEVEN C. TOLLIVER, SR.

May 29, 2014

Tile Honorable Ronald D. Castille
ChiefJustice ofPennsylvania
Supreme Court ofPennsylvania
$18 Market Street, Suite 3730
Philadelphia,PA 19103

go; Statewide Investigating Grand Juries

Dear ChiefJustice:

Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegation that
secret Grand Jury information from a prior Grand Jury was released by someone in the Attorney General's
Office.

As the current supervising Grand Jury Judge, this matter was brought to my attention. My
preliminary review included in camera sealed testimony from two individuals with knowledge.

I have decided that the matter is important enough to appoint a Special Prosecutor, Thomas E.
Carluccip, Esquire. He is a former prosecutor, served in the Department ofthe 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 if you feel that I am in error or have exceeded my authority as the Supervising Grand
Jury Judge.

Sincerel

tv.1
William R. Carpenter, J.
Supervising Judge

WRC/cns
Cc. Thomas E. Carluccio, Esquire
 IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE: : SUPREME COURT pF PENNSYLVANIA
: NO. 2 MM 2015
THE THIRTY-FIFTH STATEWIDE
: MONTGOMERY COUNTY COMMON PLEAS
INNE§TIGATINg pRANp JURY : M.D. 2644-2012

CERTIFICATE OF SERVICE

I, William R. Carpenter, Supervising Judge of the 35th Statewide Investigating Grand Jury, certify
that a true and correct dopy of the attached Opinion of January 9, 2015 was forwarded to the persons set
forth below via First Class Mail on January 9, 2015.

WILLIAM R. CARPENT
Supervising Judge
Montgomery County Court of Common Pleas
P.O. Box 311
Norristown, PA 19404

Prothonotary Irene Bizzoso
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
601 Commonwealth Avenue
Suite 4500
P.O. Box 62575
Harrisburg, PA 17106

William A. Fetterhoff, Esquire
218 Pine Street
Harrisburg, PA 17101

Thomas E. Carluccio, Esquire
Special Prosecutor
1000 Germantown Pike
Suite D3
Plymouth Meeting, PA 19462
 SEALED

UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE
MIDDLE DISTRICT COURT DATED
AUGUST 26, 2015

IN RE: SPECIAL PROSECUTOR, : No. 2 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

ORDER

PER CURIAM
AND NOW, this 9th day of January, 2015, to the extent the Application for Stay

seeks to stay enforcement of the subpoena issued to Petitioner by the Thirty-Fifth

Statewide Investigating Grand Jury, it is GRANTED pending disposition of the

Application for Extraordinary Relief.
 UNSEALED PER Filed in Suwerne GOU
ORDER OF THE JAN 9 2015
COURT DATED
AUGUST 26, 2015
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE: NO. 2 MM 2015

THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
OF PATRICK R. REESE

Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby answers

the Emergency Applicationfor Extraordinary Relieffiled by Patrick R. Reese, and states in

support thereof as follows:

1. Admitted in part and Denied in part. It is admitted that the legal citations provided

relate to the subject matter for which they assigned within this pleading. However, any assertion

that such legal citations that together or separately dispositive to the underlying issues: (i) that

the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury maintains the

requisite legal authority to convene an investigation into allegations that statewide grand jury

secrecy might have been compromised; (ii) that such legal authority was unconstitutional

because it violated the separation of powers inherent in the Pennsylvania Constitution; and/or

(iii) that the Supervising Judge did not maintain the requisite legal authority to appoint a Special

Prosecutor — are all denied. To the contrary THE INVESTIGATING GRAND JURY ACT, and

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JAN 9 2015

iddie
specifically 42 Pa.C.S. §4548(a) and § 4542 thereunder have both been appropriately met, as

reflected in formal records and pleadings before this Honorable Court, and both the said Act and

such documentation are conclusive to establishing that the Supervising Judge maintains legal

authority to convene and oversee the subject Thirty-Fifth Statewide Investigating Grand Jury,

and to appoint a Special Prosecutor thereto.

2. — 21.(inclusive). Denied. The facts and events are denied as characterized by Reese in

the underlying Application. By way of further answer, the facts and events set forth by Reese

fail to raise a lawful claim against the Supervising Judge of the Thirty-Fifth Statewide

Investigating Grand Jury maintains the requisite legal authority to convene an investigation into

allegations that statewide grand jury secrecy might have been compromised as stated above.

WHEREFORE, the Emergency Application for Extraordinary Relief filed by Patrick R.

Reese should be denied, under law and for events which effectively render such arguments

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

DATED: //9 //)

Page: 2
 VERIFICATION
1, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Extraordinary

Relieffiled of record with the Court by Patrick R. Reese, I hereby represent that the averments set forth

in the foregoing Answer to the said Application are true and correct to the best of my knowledge,

information and belief. I understand that false statements herein are made subject to the penalties of 18

Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

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 Grandfury No. #35
 UNSEALED PER Filed in Supreme Court
ORDER OF THE
JAN 9 20i5
COURT DATED
AUGUST 26, 2015 iI
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE: NO. 2 MM 2015

THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION
FOR LEAVE TO FILE ORIGINAL PROCESS
OF PATRICK R. REESE

Thomas E. Carluccio, Special Prosecutor ("Respondent")to the Investigatory Grand Jury

hereby answers the Emergency Applicationfor Leave to File Original Process filed by Patrick R.

Reese ("Applicanr), and states in support thereof as follows:

I. to 4. (inclusive) Admitted in part and Denied in part. It is admitted that the legal

citations provided relate to the subject matter for which they assigned within this pleading.

However, any assertion that such legal citations taken, together or separately, are dispositive to

the underlying rights and standing of the Applicant to file this pleading is denied.

WHEREFORE, the Emergency Application for Leave to File Original Process filed by

Patrick R. Reese should be denied.

Thomas E. Carluccio, Esquire
Attorney 1.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
DATED:
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JAN 9 2015

Middle
 VERIFICATION
1, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Leave to File

Original Process filed of record with the Court by Patrick R. Reese, I hereby represent that the

averments set forth in the foregoing Answer to the said Application are true and correct to the best of my

knowledge, information and belief. I understand that false statements herein are made subject to the

penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

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
 UNSEALED PER
Filed In 6upreme Coun
ORDER OF THE
COURT DATED JAN 9 206
AUGUST 26, 2015

FILED UNDER SEtildd6

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA

IN RE: • SUPREME COURT OF PENNSYLVANIA
NO. 2 MM 2015

THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION
FOR STAY OF GRAND JURY PROCEEDINGS
OF PATRICK R. REESE

Thomas E. Carluccio, Special Prosecutor ("Respondent") to the Investigatory Grand Jury

hereby answers the Emergency Applicationfor Stay ofGrand Jury Proceedings filed by Patrick

R. Reese ("Applicant"), and states in support thereof as follows:

1. Admitted.

2. Admitted.

3. Denied. Respondent lacks sufficient knowledge or information to form a belief as to

the truth of the allegations of this Paragraph, and therefore deny the same.

4. Denied. It is denied that the appointment of a Special Prosecutor in this matter was

done without legal authority. To the contrary such appointment was made consistent with THE

INVESTIGATING GRAND JURY ACT,and consistent with the plenary supervisory authority afforded

under law and granted to the subject Supervising Judge, as occurred here, who undertook the

appointment of the Special Prosecutor in the underlying matter. As such, it is denied the

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JAN 9 2015

V Wale
Applicant has presented a meritorious Application.

5. Denied. Respondent lacks sufficient knowledge or information to form a belief as to

the truth of the allegations of this Paragraph, and therefore deny the same. By way of further

answer, the Respondent is not aware of any injury or damage that would be caused Applicant in

testifying before the Thirty-Fifth Investigating Grand Jury under the subpoenas issued him.

6. Denied. It is denied the this Honorable Court's determination on the legality of the

appointment the Special Prosecutor is a matter of immediate concern and of substantial public

interest. To the contrary the appointment of the Special Prosecutor should not be at issue

warranting immediate review.

WHEREFORE,the Emergency Application for Stay ofGrand Jury Proceedings filed by

Patrick R. Reese 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 July No. 435

DATED:

Page: 2
 VERIFICATION
1, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Stay of Grand

Jury Proceedings filed of record with the Court by Patrick R. Reese, I hereby represent that the

averments set forth in the foregoing Answer to the said Application are true and correct to the best of my

knowledge, information and belief. I understand that false statements herein are made subject to the

penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

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
 UNSEALED PER
Filet" 6uprerne Cowl
ORDER OF THE JAN 9 206
COURT DATED
AUGUST 26, 2015 Mi
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE:
NO. 2 MM 2015

THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 2644-2012

MEMORANDUM OF LAW IN SUPPORT OF
ANSWERS OF SPECIAL PROSECUTOR TO THE
FOLLOWING FILINGS OF RECORD OF PATRICK R. REESE:

1. THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
2. THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS
3. THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS

Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby submits

this Memorandum of Law in support of his answers to three (3) pleadings of filed by Patrick R.

Reese, being: (i) the Emergency Application for Extraordinary Relief; (ii) the Emergency

Application for Stay of Grand Jury Proceedings; and (iii) the Emergency Application for Leave

to File Original Process (collectively hereinafter sometimes referenced, the "Claims").

I. BACKGROUND

Patrick R. Reese (Reese") the Applicant hereunder has filed of record the three (3)

aforementioned pleadings, all of which are designed to avoid his appearance and testimony

before the Thirty-Fifth Investigating Grand Jury under subpoena scheduled on 1/12/15. In

seeking to avoid testifying Reese has adopted a tact of challenging the subpoena requiring his

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JAN 9 2015

iddle
1/12/15 testimony, the legal authority of the Supervising Judge of the Thirty-Fifth Statewide

Investigating Grand Jury to empanel and supervise the Thirty-Fifth Investigating Grand Jury, to

appoint a Special Prosecutor thereto, and to seek this Honorable Court's immediate review.

Supervising Judge, William R. Carpenter, has issued his Opinion ofrecord with this

Court on 1/9/15.

Thomas E. Carluccio, Esq., as appointed Special Prosecutor has timely filed his Answers to

the three(3) Applications, and presents this Legal Memorandum in support thereof.

II. ARGUMENT

A. Reese lacks standing to bring a.Quo Warranto Action as expressed or implied in his
Claims.

In the interest ofjudicial economy, the Special Prosecutor adopts in full the discussion

and legal analysis set forth in Supervising Judge Carpenter's Opinion as dispositive on the issues

raised by Reese in his Claims.

The case law cited by Supervising Judge Carpenter is acknowledged to be prevailing law,

and provides that an individual does not possess proper standing to undertake a Quo Warranto

Action unless they distinguish themselves to maintain a special right or interest from that of the

general public. Here, Reese fails to distinguish himself as required. His only "damage or

special interest" is an interest to avoid testifying before an investigating grand jury, where to do

so has not been shown to be overzealously sought by the Special Prosecutor nor would result in

damage to Reese.

Accordingly, is clear that Reese has a lack of standing to pursue a Quo Warranto Action in this

matter.

Page: 2
 B. The annointment of Special Prosecutor Carluccio was proper.

In short, both statutory and case law, including without limitation 42 §4544 of THE

INVESTIGATING GRAND JURY ACT are clear that upon Order of the Pennsylvania Supreme Court

to empanel a multicounty investigating grand jury, the designated Supervising Judge has the

legal authority and plenary supervising authority to appoint a Special Prosecutor. All

requirements under 42§4544, including without limitation the Application of the Attorney

General for an Order to convene a multicounty investigating grand jury, an Order ofthe Supreme

Court to such effect, designation of a Supervising Judge, and his/her appointment of a Special

Prosecutor are all appropriately and lawfully found in the underlying matter.

Further, there is sufficient legal precedent for a Supervising Judge to appoint a special

prosecutor and/or oversee grand jury proceedings. See In re Dauphin County Fourth

Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014); In Re Twenty-Fourth Statewide

Investigating Grand Jury, 907 A.2d 505 (Pa. 2006); In re June 1979 Allegheny County

Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Castellani v. The Scranton Times, 956

A.2d 937(PA. 2008).

Again, Supervising Judge Carpenter's legal analysis, in addition to the above, is adopted

here as though more fully set forth herein.

In view of the foregoing, there was no improprieties in both the authority of Supervising

Judge Carpenter, and in his subsequent appointment of Special Prosecutor Carluccio which

warrant a review of the concern, and would lead to a recognized lawful basis upon which the

subpoena served upon Reese should be quashed. As such, his testimony should proceed without

further incident.

Page: 3
 C. A subpoena is an appropriate power within the authoritv afforded the Special
.Prosecutor in furtherance of his duties to undertake the investi2ation in this matter;
and there are no leial defects in the issuance of the subpoena serviced upon Reese in
this matter.

The authority of a Special Prosecutor to utilize the power of a subpoena on behalf of an

investigating grand jury is clear. 42 Pa.C.S. §4542 provides authority to the Special Prosecutor

to compel the attendance of investigating witnesses, and provides in relevant part as follows:

§4542 Investigative resources of the grand jury

"The power to compel the attendance of investigating witnesses; the power to
compel the testimony of investigating witnesses under oath; the power to take
investigating testimony from witnesses who have been granted immunity; the
power to require the production of documents, records and other evidence;. .."

In addressing the authority to subpoena a witness, Judge Savitt adroitly opined in his

serninal publication, Pennsylvania Grand Jury Practice, quoted in IN RE: Special Investigating

Grand Jury ofApril 26, 1984, 37 PA. D &C 3d 516) 1986 at page 520:

"It can be seen from a reading of these excerpts from the act that broad subpoena
power is vested in the investigating authority. The rationale is apparent. Without
such authority, how could a prosecutor effectively investigate and ferret out
crime? To follow the narrow construction that appellants desire would have a
chilling effect on any and all types of investigation. It would defeat the very
purpose of the act." Judge Savitt, Pennsylvania Grand Jury Practice, §21.04(A)(3)
at p. 92-93,§21.04(C)(3) at p. 96 (1983).

In conclusion, it is irrefutable that the Special Prosecutor at all times material to

this concern maintained the requisite authority to issue a subpoenas to witnesses, and under the

facts and events associated with the Special Prosecutor's issuance service of a subpoena in this

matter, the testimony of Reese before the Thirty-Fifth Investigating Grand Jury is to be

appropriately compelled.

Page: 4
 D. There is no unjust result to Reese should his Claims be denied.

As stated in the answers to the Claims of Special Prosecutor Carluccio, the only real issue

confronting Reese is a subpoena for his appearance to testify before the Thirty-Fifth

Investigating Grand Jury. Contrary to his assertions, there are no immediate concerns nor

substantial public interests that compel an emergency review of the appointment of the Special

Prosecutor, nor warranting that the subpoena be quashed. Further, as stated, Reese has

articulated no damages to him personally in honoring the subpoena and offering testimony. As

such, his testimony should proceed without further incident.

III. CONCLUSION

For the foregoing reasons, and under both the statutory and case law authority referenced in

Supervising Judge Carpenter's Opinion dated 1/9/2015, together with that offered herein, and in

acknowledgement that the Special Prosecutor appropriately maintains the requisite authority under law to

issue a subpoena, as was done here -the Application 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

DATED: i/V,4C

Page: 5
 IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE: NO.2 MM 2015

THE THIRTY-FIFTH STATEWIDE 1
INVESTIGATING GRAND JURY :
MONTGOMERY COUNTY COMMON PLEAS
M.D. 2644-2012

CERTIFICATE OF SERVICE

1, Thomas E. Carluccio, Esquire do hereby certify that a true and correct copy of the following:

1. Answer of Special Prosecutor to Emergency Application for Extraordinary Relief;

2. Answer of Special Prosecutor to the Emergency Application for Stay of Grand Jury Proceedings;

3. Answer of Special Prosecutor to the Emergency Application for Leave to File Original Process; and

4. Memorandum of Law in Support of the Answers of the Special Prosecutor to the aforementioned
pleadings

all in response to the previous filings of Patrick R. Reese has been filed of record with the Pennsylvania Supreme Court

on the 9th day ofJanuary, 2015, and copies of the filed pleadings have been directed on the 9th day ofJanuary, 2015 by

first class U.S. Mail, postage prepaid, to all parties in interest, as follows:

William A. Fetterhoff, Esq. The Hon. William R. Carpenter
218 Pine Street Court of Common Pleas of Montgomery County
Harrisburg, PA 17101 P.O. Box 311
Norristown, PA 19404-0311

T oma . 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
 SEALED

UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE
MIDDLE DISTRICT COURT DATED
AUGUST 26, 2015
IN RE: SPECIAL PROSECUTOR, : No. 2 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

ORDER

PER CURIAM
AND NOW, this 24th day of April, 2015, the Application for Leave to File Original

Process is GRANTED, and the Application for Extraordinary Relief is DENIED. See In

re Thirty-Fifth Statewide Investigating Grand Jury, ___ A.3d ___, 2015 WL 1441830

(Pa. 2015). The stay entered on January 9, 2015, is DISSOLVED.