By Adam Brandolph
Two Centre County judges whose cellphone records showed they exchanged text messages with prosecutors trying cases before them want the evidence destroyed, claiming it will ruin their public images.
Meanwhile, the lawyers who obtained the cellphone records say they received the information properly and plan to use it to show “a grave appearance of bias” and attempt to have their clients’ convictions overturned.
The situation unfolding near State College pits the judges and the district attorney’s office against Centre County officials and the criminal defense lawyers, who say it’s in the public’s interest to know what’s going on behind the scenes. It has drawn the interest of the Pennsylvania District Attorneys Association and a grand jury.
“It is highly inappropriate to sue people for investigating public corruption, and to make matters worse, the people suing here are the judges and the district attorney who are the subjects of the investigation,” said Witold “Vic” Walczak, legal director of the American Civil Liberties Union of Pennsylvania, who is representing Centre County lawyers Sean P. McGraw and Andrew Shubin. “It’s worse than trying to sweep it under the rug. It is attempting to manipulate the justice system to prevent public scrutiny of their activities.”
Centre County officials released the records, which showed phone calls and hundreds of text messages between judges and the prosecutors who had cases before them.
One Right to Know response showed that Centre County District Attorney Stacy Parks Miller and Assistant District Attorney Nathan Boob exchanged text messages with Common Pleas Judge Bradley Lunsford during a hearing.
Bruce L. Castor Jr., an attorney for Parks Miller, said the lawyers are using “supposition and innuendo” because they have run out of other options.
“They are making a gigantic leap trying to show shenanigans going on between the judge and the prosecutor. If we had emails or letters or wiretaps to show the district attorney and the judges were conspiring to throw the case, you might have something to work with,” said Castor, a Montgomery County commissioner and former district attorney who was asked by the state district attorney’s association to help on the case.
While the records did not contain the content of the texts, the lawyers argue their existence alone shows an “appearance of bias” because judges are not permitted to discuss a case with just one side.
“It may be nothing, but it’s a huge and glaring appearance that needs to be discussed,” said attorney Ronald Barber, who also represents McGraw and Shubin. “What the judges and district attorney want to do is shut them up.”
Parks Miller, District Judge Kelley Gillette-Walker and Common Pleas Judge Jonathan Grine filed injunctions asking the court to force the lawyers to destroy the records and to stop distributing them. Neither Gillette-Walker’s nor Grine’s attorneys at McNees, Wallace & Nurick in Harrisburg returned calls.
Castor said the Centre County officials who granted the records request violated the state’s Right to Know law with their “politically-motivated attack.”
Nathanael Byerly, acting director of the state’s Office of Open Records, said public officials can’t violate the Right to Know law by releasing too much information.
“The Right-to-Know Law allows officials to withhold records — It doesn’t require them to withhold records,” he said.
The ordeal has become so toxic that several Centre County lawyers declined to comment out of fear of retaliation from the bench.
“All of those attorneys up there are rightfully concerned, and it isn’t something that is ephemeral or isn’t realized. It is something that is extremely likely,” said Harrisburg lawyer Justin McShane, who is named in Grine’s complaint over cellphone records he obtained. “To have a sitting judge sue the county and sue members of the public and trying to muzzle free speech is an absolute abortion of what this country is about.”
Centre County President Judge Thomas Kistler, a one-time nominee for state Supreme Court, temporarily restricted Right to Know requests last month but reversed his order a week later when the ACLU threatened to file a federal lawsuit.
He withdrew his nomination to the high court in February after the discovery of a racially charged email he sent. Kistler, however, cited “several circumstances have developed here, at home, in Centre County, which have dramatically altered the legal system and require my full attention” as the reason he withdrew.
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