Several lawyers have questioned the logic behind the Montgomery County District Attorney’s Office’s decision to drop rape charges against lawyer and former county GOP Chairman Robert Kerns when there was “sufficient” probable cause that could have been used to carry on the prosecution.
However, District Attorney Risa Vetri Ferman defended the decision to dismiss the case and refer it to the state Attorney General’s Office for further review as being the “clearest path to justice” for the alleged victim.
All 19 charges against Kerns were dropped Monday. He was accused of drugging an employee of his law firm with Ambien and sexually assaulting her. The decision to dismiss the case was based on a discovery that a member of the district attorney’s investigative team misinterpreted a toxicology report to mean that Ambien had been found in the alleged victim’s system when it had not.
“Although the criminal case against Robert Kerns is still comprised of sufficient and compelling probable cause, the commonwealth believes the interests of justice will be best served by a nolle prosequi of charges as they currently stand against the defendant,” the prosecution’s nolle prosequi petition said.
Criminal defense lawyer Marc Robert Steinberg, a former Montgomery County assistant district attorney and current managing partner at Rubin, Glickman, Steinberg & Gifford in Colmar, Pa., said that while mistakes in interpreting reports happen, he has never seen a case withdrawn over such a mistake.
“It sure makes you scratch your head,” Steinberg said.
Discussing the misread toxicology report, Steinberg said prosecutors commonly rely heavily on the analysis of lab technicians and don’t normally double-check.
“I don’t know that they could afford to do that,” Steinberg added, “because otherwise the costs [of retesting] become prohibitive. They leave the responsibility of making sure it’s accurate to the defense in the case.”
Montgomery County-based criminal defense attorney and former prosecutor William Spade said that if Kerns’ DNA was found on the alleged victim’s clothing (as the prosecution said in its nolle prosequi petition), she filed a prompt complaint, and she was deemed credible, then “I don’t think you drop the case because there’s no Ambien in her system.”
Philadelphia-based attorney Michael Engle said, “It is somewhat inconsistent to say there was other evidence to say he was guilty, but ‘we’re dropping all the charges.’” He added, however, “at face value under the circumstances, I think it was the appropriate thing to [end the] prosecution.”
Ferman said that dismissing the case was not based in any way on the sufficiency or strength of other evidence, but a procedural decision that was intended to deliver justice to the alleged victim.
“The inaccurate evidence was completely intertwined with all the other evidence presented,” Ferman told The Legal. “Our legal research informed us there was no appropriate way, under the law, to sever the inaccurate evidence from the rest of the evidence considered by the grand jury.”
Moving forward with the charges in that posture, Ferman said, would be unfair to all parties involved.
Ferman added that proceeding with the case “would have created a significant appellate issue in the case which would have, after a potential conviction, virtually assured a reversal.”
Steinberg said that Kerns’ status as a former political leader in the county could have influenced the decision to move the case to the state Attorney General’s Office.
If the case were not about Kerns, Steinberg said, “I don’t believe they would have withdrawn it. If it was any other defendant that didn’t have the heightened publicity around him, the prosecution would have continued.”
Spade also said that a case involving a “political bigwig” should be referred out of the county because it naturally raises questions of a conflict of interest.
Ferman said, “At the earliest stages when the investigation came in, I was sensitive to the appearance of a conflict of interest,” adding that she initially referred the case to Attorney General Kathleen Kane, who determined that there was no conflict of interest.
After the charges against Kerns were dropped, Ferman said she referred the case to Kane’s office again because, “based upon the mistake made by my office, I felt that a natural conflict of interest had developed.”
Kane spokesman Joe Peters said in November that the office’s “hands are tied by the law.” He said that under the Commonwealth Attorneys Act, Kane had to decline the prosecution because Ferman said in her Nov. 11 letter to Kane that Ferman did not have an actual conflict but rather alluded to an appearance of impropriety.
“Those words alone preempt us from taking” the matter, Peters had said of Ferman’s comment that she did not have an actual conflict.
Jeffrey Lindy of Lindy & Tauber in Philadelphia said while the decision to dismiss the case was correct, the damage to Kerns had already been done.
“On the one hand, it’s a very solid prosecutor who recognizes a mistake and dismisses a case; on the other hand, the rabbit’s out of the hat,” Lindy said. “Robert Kerns left the firm he founded, he’s no longer the party chief for the Republicans in Montgomery County, and his reputation has been inalterably affected.”
Kerns’ attorney, Brian McMonagle of McMonagle, Perri, McHugh & Mischak, said Kerns’ life was destroyed over the case.
“He’s got to put the pieces back together of a broken life both professionally and personally,” McMonagle said. “He’s 67 years old, and trying to recover from something of this magnitude is a hell of a challenge.”
McMonagle said that he and his client have not discussed how to proceed next or if there are any civil legal options.
Additionally, McMonagle said, “I would hope and pray that the Attorney General’s Office realizes that there was no criminality here and that this entire prosecution was premised on a mistake. This whole thing should be put to an end.”