Four days before Christmas in 2015, Pennsylvania Supreme Court Justice Michael Eakin cried and said he was sorry in front of the state’s Court of Judicial Discipline. The charge was participating in a scandal the media dubbed “Porngate”—in Eakin’s case, exchanging scores of lewd, sexist, racist emails on state servers exchanged with other powerful actors in the state’s criminal justice system.
But as apologies go, Eakin’s was less than reassuring. After claiming he had been unfairly “dragged through the mud,” Eakin told the disciplinary panel: “Perhaps my demeanor was ‘one of the boys,’ but what I sent was to people who were ‘one of the boys.’ It was in the locker room.”
Of the fact that he found humor in the worst kind of misogyny and bigotry, Eakin remarked, “It’s not criminal, it has nothing to do with my performance on the job.”
Less than a year later, Donald Trump used an eerily similar defense after the discovery of a 2005 hot-mic recording on the set of Access Hollywood. Under fire for bragging about sexual harassment and sexual assault, he repeatedly dismissed his comments as “locker room banter” and “locker room talk.” Boys will be boys, after all. Millions of women and minorities, it seems, took him at his word when they helped propel him to the most powerful position on earth. More white women voted for Trump than Hillary Clinton. Despite the fact that he’d routinely disparaged immigrants, Trump won 29% of the Latino vote, a far larger percentage than predicted and enough, by some estimates, to tip the balance decisively in his favor in the crucial swing state of Florida.
But “locker room talk” has consequences. What white men in power say to each other about women and people of color—on the stump, on the golf course, in the locker room, and over email—raises legitimate questions about their ability to treat all people equally when it comes to crime and punishment, fairness and decency. To get a glimpse into what could ooze from Trump’s supposedly harmless banter, we needn’t go further than some of the highest-ranking officials caught up in Pennsylvania’s two-years-long running email scandal.
Porngate is a catchy moniker. It is also a charitable understatement. Yes, scores of Pennsylvania judges, prosecutors, police chiefs, and defense lawyers used state servers to send emails that were sexually denigrating to women. But equally foul were the searing, grotesquely racist emails they exchanged about African-Americans and Latinos.
Among the “high volume” traffickers who sent 50 or more of these emails: a state Supreme Court Justice, a senior deputy attorney general, city and county detectives, and “high ranking officials of Commonwealth executive branch agencies,” according to an investigative report released just before Thanksgiving.
Among the more toxic messages they sent: a cartoon of a half-naked woman on her knees fellating a man with the tagline “Making Your Boss Happy is Your Only Job,” and another of a white man defending himself against two African-American males with a bucket of fried chicken. The caption reads: “Bravery at its finest.”
Many of the emails were circulated within a select group of golfing buddies that included Eakin, a high-ranking deputy attorney general named Jeffrey Baxter, and a defense lawyer named Terrence McGowan, who sought and received judicial appointments in hundreds of cases involving poor black and Latino defendants.
Perhaps not surprisingly, one of the jokes exchanged by these good-old-boy golfing buddies involved golf—specifically, the color of robot caddies. In the cartoon, one man complains that the robot caddies, which have been painted silver, are too reflective. “Why didn’t you paint them black?” he asks the golf pro. The golf pro replies, “We did. Then four of ‘em didn’t show for work, two filed for welfare, one of them robbed the pro shop, and the other thinks he’s the President.”
In a video clip called “The craziest white man ever,” sent to the group by McGowan, a white man picks up Latino day laborers at Home Depot under the pretense of giving them work, then dumps them at the Immigration, Customs and Enforcement office laughing hysterically and yelling “beaner” and “wetback” as they flee. The video was sent in a “blast email” that went to hundreds of people, including high-ranking assistant district attorneys, assistant attorneys general, chiefs of police, public defenders, federal prosecutors, and state court judges.
Other prominent traffickers included yet another Supreme Court Justice, Seamus McCaffery, and yet another high-ranking deputy attorney general, Frank Fina.
Frank Fina, along with his two colleagues Patrick Blessington and Marc Constanzo, who were also implicated in the scandal, voluntarily left the Attorney General’s Office only to be hired immediately by Philadelphia District Attorney R. Seth Williams. Williams, who is African-American, acknowledged that the emails were offensive but, in the spirit of many Trump voters, dismissed the idea that they disqualified the three men from serving as prosecutors in a county where the vast majority of defendants are black and Latino. The racism and sexism Fina, Blessington, and Constanzo appeared to endorse online was “not reflected in [their] work relationships,” Williams wrote in a public statement released in September of 2015.
When the outcry continued, Williams sent the three men to a half-day sensitivity training called “Connecting with Respect.” On December 3, 2015, the same day after the Philadelphia City Council passed a resolution demanding their dismissal, Williams reassigned Fina, Blessington, and Constanzo to less conspicuous posts. When Fina left six months later for opportunities in private practice, Williams issued a statement praising him for “his many decades of service to the Commonwealth of Pennsylvania and the City of Philadelphia.”
At least one federal judge took issue with Eakin’s assertion that his “locker room” emails had “nothing to do with his performance on the job.” On November 10, United States District Judge Gerald A. McHugh ruled that an African-American sex worker named Donetta Hill was entitled to a hearing on her claim that police coerced her confession to killing two of her customers with a clawhammer.
Hill, who had been sentenced to death (her sentence was later commuted to life without the possibility of parole), argued that she broke down and told Philadelphia homicide detective Thomas Augustine what he wanted to hear after he handcuffed her to a chair and hurled racial and sexual epithets at her for hours. Judge McHugh noted that Augustine had faced similar credible allegations in five other cases and that Hill’s mental disabilities made her particularly vulnerable to these kinds of tactics.
It is very unusual for a federal judge to grant a convicted prisoner a hearing in a case that was tried and appealed unsuccessfully all the way to the state’s highest court. But the real surprise came in a footnote that called out Eakin and McCaffery, who had reviewed Hill’s claims and rejected them. Judge McHugh expressed skepticism of their ability to be fair to people like Hill, writing that “the fact that two Pennsylvania Supreme Court justices recreationally viewed—on state computers and on state time—numerous depictions of graphic sexual violence with captions degrading African-Americans and endorsing the abuse of women is cause for grave concern given this defendant’s background and its potential relevance to her claims for relief.”
How many other Donetta Hills are out there, arguing with compelling evidence that their convictions were unconstitutionally tainted by racism and misogyny and then having their claims summarily denied by the Porngate judges? Or prisoners with similar, credible claims who had the misfortune to have McGowan as their trial attorney, or Baxter and his cohort fighting successfully to keep those convictions intact? It’s a question Pennsylvania appellate attorneys will no doubt litigate for a long time to come.
In Pennsylvania, one out of every 20 black men is in prison, a percentage exceeded by only six other states. Pennsylvania ranks third in the nation when it comes to the disproportionate rate at which it incarcerates Latinos when compared to Caucasians: a rate of three to one. The numbers, published in recent study by a nonprofit organization called the Sentencing Project, are disturbing standing alone, but they do not exist in a vacuum.
The Color of Justice study determined that “the role of implicit bias and stereotypes when it comes to decision-making” is a root cause of the disparate rates at which states lock up their black and Latino populations. Judge McHugh’s footnote did not go that far, but it did provide the ammunition for Hill’s lawyers to do so when they go back to court.
In late December of 2015, the Pennsylvania Judicial Conduct Board suspended Eakin for violating the code of judicial ethics. Facing a trial before the Board on those charges, Eakin resigned less than three months later. Both Eakin and his former Porngate colleague, Justice McCaffery, who resigned in 2014, have been allowed to keep their six-figure pensions. McCaffery, for his part, remains active in politics, most recently stumping for John Rafferty, the Republican nominee for attorney general in late August. (Rafferty lost to his democratic challenger, Josh Shapiro, on November 8).
And while 60 members of the Attorney General’s Office were reprimanded or suspended, not one has been fired. Jeffrey Baxter, the high-volume trafficker of robot caddie fame, remains on the job, as a senior deputy attorney general.
Former Maryland Attorney General Douglas Gansler was hired to commission an independent investigation into the Porngate scandal. On November 22, Gansler’s law firm released a 50-page report, concluding that high-ranking state government officials exchanged nearly 11,000 racist, pornographic, homophobic, and ethnically biased emails from 2008 to 2015, using state servers. Among the traffickers were “more than 370 prosecutors or [attorney general’s office] personnel and more than 25 members of the Pennsylvania judiciary.”
Gansler wrote: “These communications demonstrate a fundamental and dangerous degree of impropriety that threatens public confidence in a fair and unbiased law enforcement and judicial system.” Gansler listed the offenders, and recommended that they be referred to various disciplinary boards for punishment. But Attorney General Bruce Beemer, who has less than two months left before Shapiro replaces him, demanded that every name be redacted, citing “numerous concerns” expressed by “[s]enior lawyers” in his office.
Beemer was also sharply critical of Gansler’s report, calling it exaggerated, overly-inclusive, and a “poor use” of public funds. There was no evidence, Beemer, of any impact on any prosecutor’s job performance. “The vast majority of these emails were sent six, seven or eight years ago,” he said. “The culture in the Attorney General’s Office and elsewhere across the state has changed as a result of this.”
Right, nothing to see here—except Jeffrey Baxter, still gainfully employed by Beemer along with who knows how many others. And while Beemer promised to forward along the worst offenders to the proper disciplinary boards, there is no way to hold him to account, nor to assess his judgment about who was unfairly targeted.
To believe that the Donald Trumps, Justice Eakins, Jeffrey Baxters and Terrence McGowans of the world are just playfully bantering in the locker room is naïve and mistaken to a degree that is frightening. Millions of women and minorities face real peril every day, their skin color and their bodies the subject of abuse and degradation.
Porngate is perhaps the most sordid and best recent example of why this is so. The unmasking of the email traffickers raises real questions about the ability of top state officials who operate in this culture to administer justice. Judges and prosecutors—who have the power to take liberty and even life from other people who are disproportionately people of color—must maintain the arm’s length relationship to remain impartial. So must defense attorneys for disadvantaged people, who are charged with zealously advocating for their clients, many of whom are black and Latino. Fulfilling this mission is at odds with frequently and enthusiastically sending emails that degrade people who share the same racial and ethnic background.
Marc Bookman, who runs the Philadelphia-based Atlantic Center for Capital Representation, put it more bluntly: The cozy relationship between the attorneys and judges not only violates “the separation of powers,” he says, “it shows that the only people they can relate to and respect are straight white men, which excludes the vast majority of people about whom they are passing judgment. When you look at the subject of your work like they are vermin, you are likely not to do the best possible job.”
What, then, are we to make of Trump’s appointees thus far? For Attorney General—the nation’s top cop—he picked Alabama Senator Jeff Sessions, who was deemed too racist by the Senate to claim a federal judgeship in 1986. His pick for Secretary of Labor is Andrew Puzder, the CEO for Carl’s Jr., a fast food chain best known for its commercials featuring nearly naked women gorging on hamburger beat while “hungry young guys,” as Puzder calls his most prized customers, look on salivating. Last year, Pudzer told Entrepreneur magazine that the Carl’s Jr. brand he helped establish “kind of did take on my personality.”
Lost your appetite yet?
Wading into the sewage to write this piece, I was struck by the cheerful, casual way these high-powered men traded their foul intimacies. Before the election, I consoled myself with the hope that the Porngate scandal’s ultimate resolution would mark the beginning of a long-overdue end to a Mad Men mentality that encourages this kind of collusion, which is so corrosive to the appearance and the reality of justice. But now the teeth have been knocked out of Gansler’s report, and given that we just elected the Maddest Mad Man of them all to lead our nation, that hope seems increasingly naïve.
Lara Bazelon is a writer and an attorney living in San Francisco.