Morganelli: Revive Independent Counsel Act

NorCo DA John Morganelli

Few dispute that our courts have inherent powers to do whatever they need to do to make sure their orders are followed. Northampton County District Attorney John Morganelli, who incidentally is the most senior DA in the state, agrees with this principle. He has no quarrel with the Pa. Supreme Court's recent decision that sanctioned the use of a special prosecutor to investigate Grand Jury leaks. A special prosecutor was sought because that leak might be Attorney General Kathleen Kane herself. According to the Grand Jury, it was. Clearly, something had to be done. But in Morganelli's mind, there's still a "void" in this appointment process that has, at least in Kane's case, led to accusations of witch hunting. He believes we're better off providing the legislative framework for a special prosecutor. So he is asking the state legislature to revive the expired Independent Counsel Authorization Act.

For five years, in reaction to the prosecution and conviction of then AG Ernie Preate, Pennsylvania had an Independent Counsel Act, which laid out a process for investigations leading to the state's top prosecutor. But that law expired in 2003, and has never been revived.

There certainly is a reason to be concerned, as one justice has put it, about judges who "embark on independent ventures, sailing in ships without sails of authority, using engines devoid of constitutional power ad employing a compass lacking decisional direction."

Ironically, as DA John Morganelli was calling for a legislative framework, a state senate leader was unknowingly obliging him. According to Citizens Voice, Majority Whip John Gordner, R-Berwick asked fellow lawmakers to join him on Wednesday in re-establishing the Independent Counsel Authorization Act.

But nobody disputes that judges must have the authority to ensure that their own orders are being followed.

A prime example of this is United States v. Shipp, which is the only time that the United States Supreme Court conducted a criminal trial. A local sheriff and several others went to jail for contempt. Behind this trial is the Court;'s inherent authority to see that its own orders are followed.  It arises out a rape case in Tennessee, nearly 100 years ago.

All the victim could remember later was that her assailant had been black. The local Sheriff arrested a black man, who was charged and convicted despite the victim's inability to be sure that he was the man. He was sentenced to death. As evidence mounted that made it increasingly clear that that he had been framed, his unpopular black lawyer took the unheard of step of asking the Supreme Court to intervene. Even more unlikely, Justice John Harlan agreed to do so. He issued what is known as a writ of habeas corpus, demanding that state officials surrender the convicted prisoner into the custody of a United States Marshall.

Instead of doing that, the sheriff and others turned their heads the other way as an innocent man was dragged away and lynched.

Obviously, a Court is useless unless it has the power to ensure its own orders are followed.

Blogger's Note: This story, originally published at midnight, has been updated to reflect that the state Senate majority Whip has called for re-establishment of the Independent Counsel Authorization Act.