January 28, 2009 -- Law.com (US)
Judges to Serve More Than Seven Years in Prison After Pleading Guilty in Prison Kickbacks Probe
By Peter Hall And Leo Strupczewski
Two Luzerne County, Pa., judges have conditionally agreed to plead guilty and serve more than seven years each in prison for their roles in a Dickensian scheme to channel juvenile offenders into a private detention facility in exchange for payments from the owners.
The announcement by federal prosecutors of the conditional plea agreements with former President Judge Mark Ciavarella Jr. and Judge Michael Conahan came Monday in Scranton. U.S. Attorney for the Middle District of Pennsylvania Martin Carlson indicated that the indictment against the veteran judges was the first set of charges and that the investigation was ongoing.
Carlson said he had appealed in a news conference Monday for people to step forward if they had information about "activity that seems wrong, illegal or inconsistent with the oath of office that judges take."
"I did say for our Northeastern Pennsylvania public that evil triumphs when good people remain silent," Carlson said.
Meanwhile, a Philadelphia-based organization devoted to protecting the rights of children facing adjudication drew connections between the federal charges and its petition to the state Supreme Court calling for the review of more than 250 Luzerne County cases in which juveniles were subject to delinquency hearings without lawyers.
The Supreme Court refused earlier this month to hear the matter. The Juvenile Law Center had filed an application for extraordinary relief. The group had claimed that hundreds of Luzerne County juveniles had been subject to delinquency hearings without legal representation.
"We don't have all the facts we need to draw very clear lines between our initial complaint and the information we got yesterday," said Marsha Levick of the Juvenile Law Center. "However, getting lawyers out of the picture certainly made it easier for Judge Ciavarella to make swift referrals [to the detention center] and to make them without objection."
According to the information issued Monday, Ciavarella was responsible for the adoption of "specialty court" procedures that "created the potential for an increased number of juvenile offenders to be sent to the juvenile detention facilities." Court papers filed by the Juvenile Law Center suggest the number of juveniles who appeared in Luzerne County court without counsel was significantly greater than the statewide average.
A third embattled former judge claimed the federal charges were a vindication of her claims that she was being persecuted for speaking out about rampant corruption. Former Judge Ann H. Lokuta, who was removed from office late last year, said she had cooperated with the FBI in its investigation. Lokuta said she presented evidence of the judges' improper business dealings in her own defense before the Pennsylvania Court of Judicial Discipline, but it was disregarded.
The U.S. Attorney's Office for the Middle District of Pennsylvania released a 22-page criminal information Monday detailing the charges against Ciavarella and Conahan, who are in their second terms as common pleas judges. Ciavarella was first elected in 1995 and Conahan was first elected in 1993.
The document alleges that between June 2000 and the end of April 2007, Ciavarella and Conahan collected more than $2.6 million in exchange for decisions from the bench that benefitted the owners of a private juvenile detention center including a 2004 agreement for the placement of juvenile offenders worth $58 million.
Prosecutors also allege the judges improperly derived income as a result of official actions including:
o Removing funding for the county-owned detention center from the Luzerne County budget, effectively shuttering the facility.
o Facilitating the construction of juvenile detention centers in Luzerne County and Western Pennsylvania by Pennsylvania Child Care and its sister corporation Western Pennsylvania Child Care.
o Ordering juvenile offenders to be sent to the facilities, even when probation officers did not recommend an out-of-home placement.
o Adopting procedures for a specialty court, which allowed greater numbers of juvenile offenders to be detained in the private facilities.
The charges stem from an investigation by the FBI and the Internal Revenue Service Criminal Investigation Division that has been ongoing for some time. Carlson would not say when or how the probe started.
According to the U.S. Attorney's Office, the judges have agreed to plead guilty to the charges, serve 87 months in federal prison, resign from the bench and consent to disbarment.
Conahan's lawyer, Philip Gelso, declined comment. Ciavarella attorney Al Flora said that the charges were just "allegations" and the plea agreements were "conditional" on the defendants accepting the facts to be presented by prosecutors at a plea hearing that has not yet been scheduled.
The honest service wire fraud charges also incorporate allegations that Ciavarella and Conahan received the payments through businesses they own and altered business records to hide the income from the IRS. On some occasions, the payments were falsely identified as rental receipts for a Florida condominium.
The document says Ciavarella and Conahan received the payments from a Luzerne County lawyer identified only as "Participant #1" and a construction contractor identified only as "Participant #2."
The Citizens' Voice, a Wilkes-Barre, Pa., newspaper, said the document contains information that indicates the individuals are Robert J. Powell, an attorney who was co-owner of Pennsylvania Child Care until June, and Robert S. Mericle, owner and president of Mericle Construction Inc.
A call to Powell on Tuesday was not returned. A call to Mericle Construction was also not returned.
The news has left a "close, but active" legal community shaken, said Sheila Saidman, president of the Wilkes-Barre Law and Library Association.
Still, not many were surprised.
Rumors of wrongdoing have persisted for some time, Saidman said, and they only seemed to be underscored when federal investigators began arriving at the courthouse with subpoenas.
"We've been dealing with rumors for the last year and a half, always waiting for what was going to happen," she said. "I don't know if you'd call it relief, but there was some sense of finality. Of course, we still have to go through the acceptance of plea agreements. Before, there was always that expectation in the back of your mind. But there was no certainty."
Arthur Piccone, a former president of the Pennsylvania Bar Association and a lawyer with Hourigan Kluger & Quinn in Kingston, Pa., said the county's contract with the detention center had been the subject of hundreds of newspaper articles, and rumors about the investigation had been swirling for years.
"It's pretty hard to plead surprise in terms of not being aware of the subject," Piccone said.
Piccone said Ciavarella and Conahan both were respected as trial judges among attorneys in the region.
"You always got the sense they had respect for good trial lawyers," Piccone said. "It's really unfortunate that this happened."
Some in the community expressed a sense of hope Tuesday that the news could energize others to improve the image of the county's legal community.
"The vast majority, in fact, the profession as a whole is an honest, hardworking part of the legal community," said Forty Fort, Pa., attorney Joe Cosgrove. "So, while there may be other news to follow from the prosecutors, that will only make the rest of us work harder."
"I think we just have to be more serious about our commitment to rule of law and an independent judiciary," he continued. "Both of those concepts play out in what was announced yesterday."
It will be a difficult road, court watchers said.
Since October, five judges have been removed from the bench and two more have been sanctioned, said Lynn Marks, executive director of Pennsylvanians for Modern Courts. And that takes a toll on the public's confidence.
Now, she said, the public is facing front-page, headline-grabbing stories.
"I think that people, you know, regular people can and will relate to this," Marks said.
Bruce Ledewitz, a professor at Duquesne Law School, said he believes little can be done to restore the public's confidence in Luzerne County's judiciary.
A judiciary can only build public trust by deserving public trust, he said.
"There's nothing worse than what these individuals have [been accused of]," he said, "because it goes to the heart of the case-deciding function."
It seems that some questions are already being raised.
Saidman said a Philadelphia attorney previously taken issue with the fact that Ciavarella heard a legal malpractice case in which an alleged business partner represented one of the parties involved.
Details of the case were not available Tuesday, but the alleged business partner was identified by Philadelphia attorney Jeffrey McCarron as Powell, according to Saidman.
Powell's name has surfaced as a connection to Ciavarella before, most recently in Lokuta's objections to the Judicial Conduct Board's findings that she violated a number of judicial standards.
In her filing, Lokuta wrote that Powell, Ciavarella, Conahan and Luzerne County Prothonotary Jill Moran had business and financial interests in a pair of enterprises.
All four testified against Lokuta at her hearing.
Lokuta has since appealed her sanctions to the state Supreme Court. She said Tuesday that the charges against Ciavarella and Conahan support her contention that her prosecution was motivated by her cooperation with federal authorities in their investigation.
"Judge Lokuta has been cooperating with the federal authorities for quite some time," said her attorney, Ron Santora. "When it became apparent that the wagons were circling around her in the JCB case, it quickly became clear the motivations behind it."
The charges against Ciavarella and Conahan came about two weeks after the state Supreme Court refused to grant extraordinary relief to review hundreds of cases from Luzerne County in which children facing adjudication were subjected to hearings without lawyers. The Juvenile Law Center filed a petition in April requesting extraordinary relief or for the Supreme Court to exercise king's bench power to review the cases.
The petition asserted that since Oct. 1, 2005, when the state Juvenile Procedural Court Rules changed to bar waiver of counsel by a youth's parents, hundreds of juvenile offenders have been forced to appear in court without lawyers resulting in unconstitutional admissions of guilt, delinquency adjudications and out-of-home placements.
The group's petition says data from Luzerne County in 2005 and 2006 shows half of all juveniles who appear in county court do so without a lawyer. That number is about 10 times the statewide average of 5.9 percent.
Of those who appeared in court without an attorney and were adjudicated delinquent, about 60 percent were removed from their homes.
"These children were very quickly adjudicated and quickly put into placement," said Levick, the law center's legal director.
While the law center's petition covers only those cases from October 2005 and onward, the charges against Ciavarella indicate there may be many hundreds more juveniles who were deprived of their constitutional rights, Levick said.
The Juvenile Law Center was joined in its petition by the Pennsylvania Department of Public Welfare and the attorney general's office. Attorneys for those agencies declined to comment on the case.
The Supreme Court denied the request in a one-line per curiam order Jan. 8.
"We were particularly dismayed that a case that raised such profound constitutional issues as the court's wholesale disregard for the constitutional rights of children did not warrant an explanation from the Supreme Court," Levick said.
She said the law center is exploring how the criminal charges against Ciavarella and Conahan might improve the case for a Supreme Court review of the juvenile committals.
Levick said the law center was aware of the FBI's investigation and crossed paths with the agency, "in a very superficial way," several months ago but Levick said she was not aware of the nature of the allegations against Ciavarella and Conahan.
"We had no idea at the time, and we didn't really have any indication that someone in a position such as Judge Ciavarella would use them as tools to line his own pockets," she said. "I think it's hard to fathom how a juvenile court judge could use children in this way."