6 Feb 2011

The Philadelphia Inquirer

Craig R. McCoy

INQUIRER STAFF WRITER

 

Trial ready to begin in ‘kids for cash’ case

 

Testimony about an ex-judge could shed light on the Luzerne scandal; others pleaded guilty.

 

“I’m kind of hoping that he’s feeling the anxiety that Hillary and I felt before the trial she went through,
that horrible, horrible feeling that somebody has your life in their hands.”

Laurene Transue, whose daughter was jailed at age 15 in 2007 over a MySpace page that made fun of an assistant principal Mark A. Ciavarella Jr.  “I didn’t sell any kids down the river.   I’m not pleading guilty to anything relative to cash for kids, embezzlement, extortion, quid pro quo.   Absolutely not.”  in an interview given before his guilty-plea agreement came undone

Once Mark A. Ciavarella Jr. could do no wrong.   He was the popular judge, “Mr. Zero Tolerance,” who wouldn’t brook any misbehavior from belligerent youngsters appearing before him in juvenile court.

 

WARREN RUDA / Citizens’ Voice Mark A. Ciavarella Jr. in Scranton in 2009.

At right is Michael T. Conahan, who pleaded guilty, is awaiting sentencing, and could be called as a witness.

Today, despite all his protestations, Ciavarella is seen as the pitiless overseer of a cutthroat courtroom in which he conspired with another judge to grow rich upon the suffering of children.

Starting Monday, Ciavarella, 60, will get his chance to redeem his name as jury selection in his federal corruption trial finally gets under way, two years after the socalled kids-for-cash scandal exploded in northeastern Pennsylvania.

The trial is eagerly awaited in Luzerne County, where prosecutors say Ciavarella, now an ex-judge, and the county’s former president judge, Michael T. Conahan, took in $2.9 million in exchange for shipping children and teenagers to forprofit detention centers.

Among other cases, Ciavarella jailed a 12-year-old boy for two years for crashing the family car in a joyride.   He gave a six-month sentence to a teen spotted giving the finger to a police officer.   He ordered an 11-year-old boy — 4-foot-2 and 63 pounds — taken away in leg shackles when his parents were unable to pay a $488 fine. 

Since the scandal broke in 2009, the string of indictments and guilty pleas has managed to awe and appall many residents in a region long grown cynical about pols who dip into the public till.   But many of the details haven’t been aired in open court since everyone else charged in the case has pleaded guilty.

Ciavarella’s prosecution is expected to be the climax of a scandal that has mushroomed month by month. In all, federal prosecutors have brought charges against nearly 30 officials, including a third county judge, numerous court officials, a state senator, school board members, and county officials.

Marsha Levick, chief counsel for the Juvenile Law Center in Philadelphia, said the alleged judicial wrongdoing constituted “the most serious judicial scandal in the history of the United States.”

The state Supreme Court has agreed to wipe out the criminal records of up to 4,000 youngsters whose cases were tainted over five years in Ciavarella’s courtroom.   Lawyers for these children and teens have lawsuits for money damages pending in federal court.

The state legislature set aside $ 500,000 to help what victims-rights advocates call the “original victims” — the people who were injured or whose possessions were stolen or damaged in the underlying delinquency crimes in the first place.

Yet to the consternation of their advocates, the state has yet to mandate that all juvenile defendants be represented by a lawyer — a key reason the Luzerne County hearings turned into kangaroo court.

With other major players in the alleged conspiracy on deck as possible prosecution witnesses — most notably Conahan, who has pleaded guilty in the scandal — the public is bracing for a trial that could shed new light on the depth of the wrongdoing.

Ciavarella always has the option of pleading guilty and accepting whatever sentence the court imposes.

Barring that, the trial should “air a lot of dirty laundry that perhaps has not seen the light of day yet,” said Ronald V. Santora, a lawyer for a former Luzerne County judge who had raised questions about Conahan.

This view was echoed by Levick, whose Juvenile Law Center played a significant role in unearthing the scandal.

If Conahan or others testify against Ciavarella, “ one would expect the gory details of what these individuals were up to and the mischief they were up to come out,” she said.

Until their downfall, Conahan was the intimidating top judge in the century-old courthouse in Wilkes-Barre and the more amiable Ciavarella the sole judge to hear juvenile cases.

Over five years, federal prosecutors say, the two friends and neighbors raked in $2.9 million in kickbacks and bribes, $143,500 of it cash stuffed into FedEx boxes.   The alleged bribes helped fuel a lavish lifestyle that included their joint purchase of an $ 800,000 condo affiliated with a yacht club in Florida.

The money came from the owner and builder of two detention centers for delinquent youths.   In return, the government says, the judges closed a competing county-run detention facility and made sure the ex-owner, Robert Powell, a rich Hazleton lawyer and friend of Conahan’s, got $58 million in county prison contracts.

Moreover, a state investigatory commission found, Ciavarella kept the centers busy.   In 2007, one out of four juveniles ruled delinquent in Luzerne County was removed from home — more than double the rate elsewhere in Pennsylvania.

His justice was swift and brusque.   “You’re gone,” he told 10th grader Hillary Transue before sending her away.   Her crime: creating a parody MySpace page that made fun of an assistant principal.

Laurene Transue, whose daughter was jailed at age 15 in 2007 over the MySpace page, said she and other parents were glad the trial was “finally here.”

“I know this might sound awful,” Transue said.   “I’m kind of hoping that he’s feeling the anxiety that Hillary and I felt before the trial she went through, that horrible, horrible feeling that somebody has your life in their hands.”

Hillary appeared without a lawyer for a hearing that lasted 60 seconds.   She spent a month at a wilderness camp until the Juvenile Law Center had Ciavarella’s decision reversed.

“I wish all of these kids had been given the same rights as Mr. Ciavarella has been given,” her mother said.   “I think about my kid — down came the gavel, and they put her in handcuffs and they took her out. No words, no hugs.”

The scandal unfolded against a systemic breakdown of oversight, as defense lawyers, prosecutors, the Judicial Conduct Board, and the state Supreme Court all missed warning signs and opportunities to rein in the two judges.

Tellingly, more than half of the youngsters appeared before Ciavarella without an attorney.   That was the highest rate of non-representation in any juvenile court in the nation, Levick said.

Of 22 lawyers on the public defender’s staff in Luzerne County, “not even one,” but “a portion of one,” was assigned to Juvenile Court, Basil G. Russin, the former chief public defender in Luzerne County, told an investigative panel.

When a member of his staff raised an alarm about the lack of representation, by his own account Russin told him, “We’re not going to seek clients.”

As Ciavarella cracked down and even as the Wilkes-Barre Times Leader spotlighted his high incarceration rate, the public saluted him.   In 2006, the Friendly Sons of St. Patrick of Greater WilkesBarre named him man of the year.

“Everybody loved it.   The schools absolutely loved it. They got rid of every bad kid in school,” Russin said. “When I was in school, if you threw a spitball, maybe you went to the principal’s office and sat for a couple of periods. Last couple years, if you threw a spitball, they got the police and you ended up in Juvenile Court and got sent away.”

So even in a region seemingly inured to corruption, there was shock in January 2009 when news broke that Conahan and Ciavarella had agreed to plead guilty and serve seven-year prison sentences, well under the terms recommended in federal guidelines.

But an outraged federal judge, Edwin M. Kosik, killed the lenient deal six months later.   Kosik grew disgusted after both judges minimized their wrongdoing.

Last July, Conahan pleaded guilty anew, without any agreement on his sentence.   No date has been set for a sentencing hearing.   This should ratchet up the pressure on Conahan to deliver should he be called to testify.

There is little doubt that the defense faces an uphill battle.   Its task will be to smash the “kids for cash” allegation, which has become the central motif of the scandal.

The defense’s job will be harder not only because of the array of cooperating witnesses, but because of public admissions already made by Ciavarella.

In extraordinary testimony in 2009, he acknowledged taking hundreds of thousands of dollars from the owner and builder of the detention centers.   He also admitted not reporting the money on his income taxes or his public income-disclosure forms.

While defense lawyer William Ruzzo declined to discuss the substance of his strategy, he did say he expected that 2009 testimony to be cited by prosecutors.

“I suspect it will be,” Ruzzo said. “It is testimony under oath by Mark.”

These admissions were made as another part of the scandal unfolded, having to do with another Wilkes-Barre newspaper, the Citizens’ Voice.

In 2006, Ciavarella, sitting without a jury, found the paper guilty of libel in stories that in part dealt with Billy D’Elia, the alleged head of organized crime in the region.   He ordered the paper to pay $3.5 million in damages.

On appeal, the newspaper’s lawyers dug up some remarkable evidence on the way to winning a pending retrial.

They presented testimony that Conahan had met regularly with D’Elia, that D’Elia had used a court security guard as a courier to carry sealed envelopes to Conahan ( it was never established what was in them), that Conahan had manipulated the court schedule to assign the libel case to Ciavarella, and that Conahan had predicted that the paper would lose the libel suit.

Conahan refused to testify at the appeals hearings.   Not so Ciavarella.

“ We were flabbergasted that he took the stand,” said W. Thomas McGough Jr., one of the paper’s lawyers at the time.   “ Everybody else invoked the Fifth Amendment, and he could have done that.”

In court, Ciavarella insisted that he had decided the libel suit on the merits and denied that the case had been fixed.

Yet he also dug himself into a hole, making statements almost certain to be quoted back to him at his own trial.

In one exchange, McGough asked him if he was a corrupt judge.   “Yes,” Ciavarella replied. McGough also pressed him about why his financial-disclosure forms failed to list the money from the detention center.

“So you lied on that?” McGough asked.

“I didn’t list it, correct,” Ciavarella replied.

“So you lied?” McGough said.

“Correct,” Ciavarella replied.

At the same time, Ciavarella was adamant that the undisclosed money had not been a bribe.   Rather, he insisted, it was a “finder’s fee” — money that the judges received for putting the owner, Powell, into contact with their builder, Robert Mericle.

Pressed by reporters, Ciavarella stuck to that point, saying the money had not driven his judicial decisions.

“I didn’t sell any kids down the river,” he said in a typical interview, given before his guilty-plea agreement came undone.

“I’m not pleading guilty to anything relative to cash for kids, embezzlement, extortion, quid pro quo. Absolutely not.”

While the initial guilty-plea agreements did not use such phrases, they did state that Ciavarella and Conahan had taken millions “in exchange for official actions.”   Both judges signed forms agreeing to this statement.

If the money paid Ciavarella was on the up and up, prosecutors are sure to point out, why did he hide it — failing to report it on his taxes and disclosure forms?

Powell and Mericle both have pleaded guilty to charges in connection with the scheme.   (D’Elia is in federal prison in Arizona on an unrelated conviction for witness tampering and conspiracy to launder drug money, and presumably won’t testify.)

Ciavarella may not be the only one to regret his public statements.

In court in late 2009, Assistant U.S. Attorney Gordon A. D. Zubrod, the top prosecutor in the case, also called the payments to the judges a “finder’s fee.”

Zubrod did so at the hearing at which Mericle, the detention centers’ builder, pleaded guilty to a relatively minor charge of withholding information from investigators.

At that session, Zubrod seemed to go out of his way to downplay Mericle’s criminality.

“This is not a kickback or bribe in any sense.   It is a common practice,” Zubrod said of the payments. “Mr. Mericle simply paid a finder fee to the judges in accordance with standard practice.”

In a filing Thursday, Ciavarella’s lawyers said they wanted to tell the jury about Zubrod’s statement.   The defense team said the prosecutor’s remarks were “directly inconsistent” with the government’s contention that Ciavarella had taken bribes.

Prosecutors won’t grant interviews.   In a court filing, they urged the judge to forbid the defense team to mention Zubrod’s remarks.

They argued that there was no contradiction — that while Mericle thought he was paying a routine finder’s fee, his associate in the deal, lawyer Powell, used the money to bribe the judges.

In an interview, Dan Richman, a former federal prosecutor who teaches at Columbia Law School, said some judges might permit a jury to hear the apparent contradiction.

“There’s a distaste for the government taking contradictory positions at different times to serve its purposes,” Richman said.

In any event, David Sosar, an associate professor of political science at King’s College in Wilkes-Barre, said many there had grown increasingly frustrated, feeling that the exact nature of the scandal had remained uncharted. He said the trial might remedy that.

 

“It’s been unresolved,” Sosar said. “A lot of people seem to think this will help this county get past some of the damage.”