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Kane's best criminal defense might be no defense at all

What is Kathleen Kane up to?

The Pennsylvania attorney general, on trial for leaking secret grand jury evidence to a newspaper and then lying about it, rested her defense Friday in Montgomery County Court without calling a single witness.

That means both the prosecution and defense teams are expected to present their closing arguments and the jury could get the case today. A trial that was expected to take three weeks or longer could be wrapped up in six days.

Few legal experts had expected that Kane would testify on her own behalf. But not calling any witnesses at all — nobody predicted that.

The last indicted politician to try that was Pennsylvania Treasurer R. Budd Dwyer nearly 30 years ago. Charged in a no-bid computer contracts scandal, Dwyer rested his defense without calling witnesses or presenting evidence. It was a miscalculation. A jury found him guilty on all counts.

Kane’s defense lawyers appeared to be heading in that direction Friday when, after four days of prosecution testimony, they moved for immediate dismissal on the grounds that the prosecution hadn’t proven its case. Judge Wendy Demchick-Alloy denied that motion.

But it’s likely the defense is already laying the groundwork for another chapter of this saga.

During the run-up to the trial, Kane’s lawyers had indicated that they planned to pursue a defense that she was the victim of “selective and vindictive prosecution” due, in part, to her uncovering of a chain of offensive and pornographic e-mails involving top state officials. The judge, however, barred them from presenting evidence from those e-mails.

Perhaps stung by the denial of her “porngate” defense, the attorney general is ready to accept a guilty verdict, which she will appeal claiming she was denied the right to put her defense before the jury.

Would such an appeal have merit? Possibly. A good defense team could stress the point that the “old boy” network that allowed offensive, pornographic e-mails to circulate through the state justice system is the same network deciding it had nothing to do with the charges against Kane. Why not let a jury decide?

But if Kane already has decided that the appeal route is her best option, then she’s probably better off not complicating it with the extraneous details of a Plan-B defense. It would be better to stick with one story, even if it’s a story she thus far has been prohibited from presenting.

And for now, even with no defense, it takes only one unconvinced juror to cause a mistrial. We should know very soon, maybe by tomorrow if that’s the case for Kathleen Kane.

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