                   IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT


IN RE: MR. JUSTICE SEAMUS P. MCCAFFERY: No. 430
OF THE SUPREME COURT OF               :
PENNSYLVANIA                          : Judicial Administration Docket




                             CONCURRING STATEMENT


MR. CHIEF JUSTICE CASTILLE

      I join in the immediate suspension of Justice Seamus P. McCaffery and the

appointment of special counsel for the Court. However, I respectfully would not refer

this matter to the Judicial Conduct Board. In our recent case of In Re: Bruno, --- A.3d --

-, 2014 WL 4915942 (Pa. 2014), this Court agreed that prosaic complaints about judicial

misconduct would go to the Judicial Conduct Board for initial review and that this Court

would only step in and assume jurisdiction in extraordinary circumstances.         In my

opinion, the conduct of Justice Seamus P. McCaffery is such a circumstance. The most

recent misconduct of Justice McCaffery -- forwarding sexually explicit pornographic

emails to employees of the Attorney General’s Office (and, in one instance, an email

depicting a naked 100 year-old woman as the target of a sexually explicit joke and a

video of a woman in sexual congress with a snake that is clearly obscene and may

violate the Crimes Code Section on Obscenity) has caused the Supreme Court to be

held up to public ridicule. This conduct deserves the immediate action as implemented

by this Court today. It would be impossible for this Court to function effectively while

Justice McCaffery sits on this Court. His so-called “lapse in judgment” lasted, at least,
for many years as an adult.     It is more than a lapse in judgment – it has caused

unmitigated turmoil in the justice system and has indirectly cost several state

prosecutors and high ranking state officials their public careers. At least several of

those individuals have had the decency to resign, whereas the instigator of the

pornographic emails still draws a taxpayer’s salary.

      Justice McCaffery by his comments fails to acknowledge the significance of his

“lapse” and blames others for this “lapse of judgment.” He blames the US Marine Corps

for coarse language and crude jokes.       He blames the US Air Force for the same

conduct, even though a Reserve Colonel in the Air Force would have been court

martialed for similar conduct. He blames the Philadelphia Police Department for the

same, although the Police Department would never condone this type of misogynistic

behavior.    Finally, Justice McCaffery blames me for what he deems a “cooked up

controversy” when, in fact, he was the originator of the emails sent to a government

agency, and the emails were then made public by the Attorney General’s Office. This

Court and I had no idea whatsoever that Justice McCaffery was using court equipment

to forward this material – we do not monitor a Justice’s email. This alleged “cooked up

controversy” has cost the careers of others and perhaps even several marriages. As

importantly, Justice McCaffery’s conduct has brought this Court into enormous

disrepute.

      Justice McCaffery blames me for a series of egregious acts of misconduct on his

part. However, it was not I who caused his wife to be cited for driving the wrong way on

Market Street.   It was not I who caused Justice McCaffery to meet with the main

Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket




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which was then dismissed by a Traffic Court judge who later pled guilty to federal

crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file

which was then officially brought to my attention as part of the review of Philadelphia

Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme

Court employee, permission to run a law practice out of a Supreme Court chambers,

earning millions of dollars. It was not I who referred that matter to the US Attorney’s

Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to

assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for

his services to the Philadelphia Court system for his professional work.             Justice

McCaffery claims that I targeted him because of his assertions that I mishandled the

Luzerne County juvenile court disaster. As a fact, no such opposition was ever voiced

by Justice McCaffery until years after the fact; and, in fact, Justice McCaffery joined the

Court’s unanimous orders respecting Luzerne County. Justice McCaffery never voiced

any concern over the planning and construction of the just-opened Family Court

Building at 15th and Arch Streets, unless he did so anonymously in the press and by his

denigrations of my reputation to others. In fact, Justice McCaffery doubted the building

would ever be built. He was wrong.

       Justice McCaffery is correct in one of his allegations against me. I have been

attempting to remove Justice McCaffery from this Court.            In my two decades of

experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done

as much to bring the Supreme Court into disrepute. No other Justice has failed to live

up to the high ethical demands required of a Justice of this Court or has been the

constant focus of ethical lapses to the degree of Justice McCaffery.




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       Lastly, there is the recent report that Justice J. Michael Eakin was being “asked”

by Justice McCaffery to have my public report to the citizens concerning the general

content of the pornographic emails Justice McCaffery sent to the Attorney General’s

Office be withdrawn from the public realm, or else Justice McCaffery would see to the

release of other emails allegedly implicating Justice Eakin in similar conduct (although

as yet not identified). In my opinion, that sort of threat borders on criminal conduct. I

can see little reason why Justice Eakin would implicate Justice McCaffery in these

threats after Justice Eakin self-reported the email account to the Conduct Board, unless

the charged conduct by Justice McCaffery actually occurred. It would seem that this

report of possible misconduct by Justice Eakin to the Judicial Conduct Board now raises

an ethical conflict on the Board’s part, thereby calling for an independent review of

Justice McCaffery’s conduct.

       Notably, Justice Eakin has stepped forward and has voluntarily asked for a

review of the materials released through Justice McCaffery who clearly had knowledge

of the content and the provenance of the emails. This is in contrast to the conduct of

Justice McCaffery, who continues to blame others for the ethical lapses arising from his

own volition and deliberate conduct.

       This Court has a scheduled argument session in the week of November 17,

2014. My question will be: How would it be possible for a court of seven members to

sit in judgment of matters as the Commonwealth’s court of last resort when one Justice

has brought this level of public contempt by his own actions and has threatened another

Justice to intervene illegally on Justice McCaffery’s behalf to change or alter fact-finding

in relation to Justice McCaffery’s pornographic emails? Of even more import, how can




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any party or litigant believe their matter will be heard and decided impartially while these

scurrilous charges and accusations remain unresolved?

       As a prosecutor in the Philadelphia District Attorney’s Office, I often had the

occasion to review pre-sentence psychiatric reports, although I do not claim to be an

expert in the field. One pathology that I do recall, and as confirmed in a review of a

prominent medical journal, describes the pathology of an individual who has the

personality traits of not caring about others, thinking he or she can do whatever is in that

person’s own self-interest and having little or no sympathy for others. The most telling

pathology is that when that person is caught, or called out for his transgressions, that

person does not accept blame but instead blames others for his or her own misconduct.

Those pathological symptoms describe a sociopath. So far in the blame game, Justice

McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police

Department, Chadwick Associates, the US Attorney and the FBI, Attorney General

Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising

from actions all initiated by him, but thought by him to be of little consequence: just a

few “cooked up controversies” by his perceived tormentors.

       I agree that this Court cannot continue to function while Seamus McCaffery sits

as a Justice. There is no way that citizens could have confidence in the moral authority

of the Pennsylvania Supreme Court. If we do not have the confidence of our citizenry,

all we as a Court do is for nothing. That is why I support the immediate suspension of

Justice McCaffery.

       While I respect the work of those persons appointed to the Judicial Conduct

Board, I am fully aware of the lack of resources and manpower to investigate charges of




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this unique significance. In the past, this Court has had to loan $35,000 to the Conduct

Board to meet payroll when the Legislature denied the Board’s budgetary needs. The

AOPC has even had to lend the expertise of our IT department to set up a case

management computer program and system when the Board had not had the ability to

do so because of a lack of adequate funding. To undertake an investigation of Justice

McCaffery’s ethical failures will be an enormous effort by the Judicial Conduct Board

which I can only hope will be accomplished by the deadlines in this Court’s order.

      For these reasons, left to my own devices, I would immediately refer this matter

to an outside neutral fact-finder for a report and recommendations.




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