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Interbranch Commission on Juvenile Justice Final Report Luzurene County Investigation 2010 Parta

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Ho:\.

M.

JOHN

CLELA~J), CHAIR

TaD C. ALLEN

VALERIE BE~J)ER

KICNNETH

Ho:\.

1.

JA:VII,S

HOROHO, JR., ESQUIRf.

A.

The Honorable Ronald D. Castille
Chief Jus tice of Pennsylvania

The Honorable Dominic Pileggi
Majority Leader
Senate of Pennsylvania

The Honorable Robert J. Mellow
Democratic Leader
Senate of Pennsylvania

The Honorable Todd A. Eachus
Majority Leader
Pennsylvania House of Representatives

The Honorable Samuel H. Smith
Republican Leader
Pennsylvania House of Representatives

GJJJBONS

JASON J. LE(;(;. ESQUIRF.

ROBERT

L.

GEOI(C;I'

D. [v'lOSEE, JR., ESQUIRE

L!STENBEE, ESQUl1(E

Ho,\. JOliN C. UHI.ER
RU:\ALll

The Honorable Edward G. Rendell
Governor of Pennsylvania

P. Wll.L1AMS

The Interbranch Commission on Juvenile Justice was created last August with a
mandate to investigate the juvenile justice scandal in Luzerne County and to develop
appropriate recommendations for reform. Since then we have held eleven days of
hearings and received testimony from sixty-eight witnesses, some more than once.

Ho,\. DWA'NIi D. WOOIWIJW
DARREN BRESLlN. ESQUIRE
COMMISSJ()N COUNSEl.

In the attached report we have developed a comprehensive account of what occurred
in the courtrooms of Luzerne County. It is our hope that based on our understanding
of how the juvenile justice system was undermined in one county we have developed
recommendations that will avoid it from happening in any other county.
\Vhile the tragic events in Luzerne County have drawn criticism nationwide, and
rightly so, it is also true that Pennsylvania is an acknowledged national leader in the
field of juvenile justice. r111e outstanding commitment of our juvenile court judges,
prosecutors, defense attorneys, probation officers, victim advocates and service
providers should not be overshadowed by the actions of those who have damaged
that reputation.
In making the recommendations in this report we are confident that if they are
adopted Pennsylvania's juvenile justice system will be further strengthened to the end
that our communities will be protected, those determined to be delinquent will be
held accountable, crime victims will be restored, and the rule oflaw will be protected
and preserved.

1515 MARKET STREET, SUITE 1414

PHILADELPHIA. PENNSYLVANIA lLJ 102

215.560.6300

AcknowledgeD1ents
The members of the Interbranch Commission on Juvenile Justice take special notice and express great
appreciation for the dedicated work of the staff of the Administrative Office of Pennsylvania Courts who
have been assigned to this project. They have demonstrated a genuine commitment to the rule oflaw, to
the fairness of its application, and to the well being of our communities.
We acknowledge Darren Breslin, Esquire, who served as Commission counsel, Nicholene DiPasquale
who coordinated logistical matters, Stuart Ditzen who edited this report and coordinated press relations,
and Thomas B. Darr who was the governmental liaison.
We also express our special appreciation to: Arthur H. Stroyd, Esquire, and William S. Stickman IV,
Esquire, of DelSole Cavanaugh Stroyd LLC, of Pittsburgh, who represented the Commission without
charge in its litigation before the Supreme Court of Pennsylvania; and William Fisher, Esquire, formerly
of the Philadelphia County District Attorney's Office, who provided without charge invaluable
investigative services.

Table of Contents
I.

INTRODUCTION

5

II.

WHAT WENT WRONG

8

A Petition to the Supreme Court

8

The Filing of Criminal Charges

9

The Speciallvlaster

10

The Supreme Court Response

12

Who Were These Men?

13

The Platt Report

14

Plea Rejection

17

IndictInent

17

III. PROCEEDINGS OF THE INTERBRANCH COMMISSION

20

The Victims

20

The Victim Advocate

20

Victims of Juvenile Crilnes

21

Juveniles and Parents

21

Fear and Intimidation

23

The Role of the Judicial Conduct Board

27

The Role of the District Attorney

31

rille Role of the Public Defender

33

The Role of the Disciplinary Board

36

The Role of the Juvenile Probation Department

36

The Juvenile Court Judges' Commission

39

continued

IV. REC01\.1JVIENDATIONS

V.

41

A. Recommendations Regarding Crime Victims

41

B. Recommendations Regarding Judicial Ethics

42

C. Recommendations Regarding Judicial Discipline

43

D. Recommendations Regarding Attorney Discipline

45

E. Recommendations Regarding Continuing Education

46

F.

Recommendations Regarding Juvenile Prosecutors

47

G. Recommendations Regarding Juvenile Defense Lawyers

48

H. Recommendations Regarding Ethics for Juvenile Probation Officers

51

1.

Recommendation Regarding Court Hiring Practices

52

J.

Recommendation Regarding Continuing Supreme Court Oversight

52

K. Recommendations Regarding the Use of Data and Statistics

53

1.

53

Recommendation Regarding Stating Dispositional Reasoning on the Record

M. Recommendation to Reduce or Eliminate the Practice of Shackling

54

N. Recommendation Regarding Juvenile Placement Decisions

54

O. Recommendation Regarding Youth Level of Service Initiative

54

P.

Recommendations Regarding Appellate Rights

55

Q. Recommendation Regarding Appellate Review

55

R. Recommendations Regarding Nunc Pro Tunc Relief

57

S.

Recommendations Regarding County Commissioners

57

T.

Recommendations Regarding the Department of Education

58

CONCLUSION

60

\TI, COIVIJVlISSION BIOGRAPHIES

63

VII.

65

GLOSSARy

Report to the General Assem.bly,
Governor Edward G. Rendell and the
Suprem.e Court of Pennsylvania
I.

INTRODUCTION

The Interbranch Commission on Juvenile Justice was established by Act 32 of the Pennsylvania General Assembly in the
summer of2009 after unanimous votes by the House and Senate. The act was signed into law on August 7,2009, by
Governor Rendell.
The commission was created in response to a highly publicized judicial corruption scandal in Luzerne County involving
millions of dollars in alleged payoffs to two judges and rights violations of thousands of juvenile defendants in the county's
juvenile court. The scandal shocked citizens of the county and the state and made headlines around the world. So
extraordinary were the circumstances that the executive, legislative and judicial branches of Pennsylvania government
agreed to undertake a noncriminal investigation to determine the root causes of the breakdown of Luzerne County's
juvenile justice system and to propose remedies.
As stated by Act 32, the Interbranch Commission on Juvenile Justice was to determine how the Luzerne County juvenile
justice system failed, to restore public confidence in the administration of justice and to prevent similar events from
occurring in Luzerne County or elsewhere in the Commonwealth.
The commission was to have] ] members. Three were to be appointed by the governor, four by the chief justice of
Pennsylvania, one by the president pro tempore of the Senate, one by the minority leader of the Senate, one by the speaker
of the House and one by the minority leader of the House.
An exacting timetable was established for the commission's work. Act 32 set a deadline of1'Iay 3],201 0, for the
commission to file a final report with recommendations to the governor, the chief justice and the House and Senate.
The members of the Interbranch Commission on Juvenile Justice met for the first time for an organizational session in
Pittsburgh on August 26-27.
In the months afterward, the commissioners held 11 days of public hearings and heard testimony from more than 60
individuals at every level and in every role across the spectrum of the juvenile justice system. Many more individuals, who
did not testify at public hearings, provided written or verbal information to the commission. The record of the
commission's hearings is available on the Web site of Pennsylvania's Unified Judicial System at:
http://wv.lv.l.pacomts.us/Links/PubliclInterbranchCommissionJuvenileJustice.htm
'Witnesses who appeared before the commission included the president judge of Luzerne County, the former district
attorney, the incumbent district attorney, the county public defender, assistant district attorneys who appeared in juvenile
court, assistant public defenders. juvenile probation officials, former juvenile defendants, parents of juvenile defendants,
school officials, county commissioners, officials of the Judicial Conduct Board and others.
vVith fe,v exceptions, those asked to testify did so willingly and without the necessity of a subpoena.
Two individuals who declined to appear were former judges Mark A. Ciavarella, Jr., and Michael T Conahan. These
men have been charged with federal crimes relating to the alleged receipt of $2.8 million in illegal payments from the
owners of two juvenile detention facilities. Conahan and Ciavarella were and are at the center of the "kids for cash" scandal
in Luzerne County that, beginning with the filing of federal charges against them on January 26,2009, released a Hood of
negative publicity all the former judges themselves and on the juvenile justice system of Luzerne County. Independent of
the federal criminal charges, Ciavarella, who was the county's juvenile court judge, has been found by the Pennsylvania
Supreme Court to have improperly denied more than 1,800 juvenile defendants the constitutional right to counsel. Those
5

rights violations were so extensive and egregious that the Supreme Court, on October 29, 2009, issued an unprecedented
order vacating the adjudications of all juvenile cases Ciavarella handled from 2003 to 2008 and expunging the records of
the cases.
It is plain from events over the past 18 months that corruption in the Luzerne County courthouse has been deeply
ingrained for many years. A graphic illustration of the relaxed attitude toward corruption on the part of the judiciary is the
fact that Conahan, a former president judge, has been described in court testimony unrelated to the federal criminal case as
having been a close friend of the alleged organized crime leader of Northeastern Pennsylvania, William "Big Billy" D'Elia.

Conahan and Ciavarella are not the only Luzerne County judges charged with federal crimes. A third judge - Michael T.
Toole - was charged in December 2009 with federal tax and fraud offenses. Toole pleaded guilty on December 29, 2009,
and agreed to cooperate with federal authorities. The former court administrator, l,Villiam T. Sharkey, Sr., Conahan's
cousin, pleaded guilty on February 17, 2009, to federal charges of embezzling more than $70,000 in seized gambling
proceeds. The former chief juvenile probation officer, Sandra Brulo, pleaded guilty on March 26, 2009, to obstruction of
justice in connection with altering the record of a juvenile defendant. Former County Prothonotary Jill Moran resigned
from office in February 2009 and signed a consent agreement pledging to cooperate with federal investigators under
penalty of a possible fine or imprisonment if she fails to fully comply. Clerk of Courts Robert Francis Reilly was charged in
April 2010 with soliciting and receiving $1,500 in bribes and gratuities from a courthouse handyman.
Federal authorities have widened their public corruption probe beyond the county courthouse to bring charges against
school board members, a school superintendent, housing authority members, a former redevelopment authority director, a
county commissioner, the former director of county human resources and others. And the probe continues.
'With this collage of corruption as a backdrop, the Interbranch Commission on Juvenile Justice narrowed its attention to
the serious and chronic malfunctions within Luzerne County's juvenile court.
The immediate and most obvious blame for failures in the juvenile justice system can be laid at the door ofivlark
Ciavarella who presided for years as juvenile judge, even during a period when he served as president judge of Luzerne
County's Common Pleas Court. Ciavarella was a "zero-tolerance" judge who took a hard line on juvenile crime particularly when crime occurred in schools. Ciavarella routinely decided cases of youths who were unrepresented by
counsel - and did so in a manner that violated court rules. Far more often than most juvenile judges, he sent youths away
from home when they got into trouble. Juvenile court was Ciavarella's domain. He ruled there supreme. By some accounts,
he could show sympathy, compassion and concern for youthful defendants who appeared before him. More often, the
record shows, his manner was harsh, autocratic and arbitrary. He judged by a formula rather than by individual evaluation.
If you do X, your punishment will be Y. I will send you away. I am telling you ahead of time. That was his method - the
antithesis of the process of individual evaluation that a judge should apply before deciding a case.
But the failures of the juvenile justice system do not stop with Ciavarella. The Interbranch Commission on Juvenile
Justice found a far more complex and nuanced picture in which many individuals may be seen to have shared the
responsibility. Silence, inaction, inexperience, ignorance, fear of retaliation. Greed, ambition, carelessness. All these factors
played a part in the failure of the system. Prosecutors, defenders and probation officials witnessed and participated in
proceedings in Ciavarella's courtroom. For some, hesitation to act stemmed from a quandary: They were not sure where to
turn to report concerns. For some there was coinciding skepticism: What good would it do?
The agency responsible for investigating and prosecuLing judicial misconduct in Pennsylvania is the state Judicial
Conduct Board, a constitutionally established panel of 12 members, half of whom are appointed by the Supreme Court and
half of whom are appointed by the governor.
As part of its investigation the commission made extensive efforts to learn whether the Judicial Conduct Board had
received complaints about Ciavarella and Conahan and, if so, what the board had done to investigate those complaints. No
public disciplinary charges were ever filed against Ciavarella or Conahan by the board in connection with any complaint.
In its hearings, the commission heard from witnesses who were reluctant to submit complaints to the Judicial Conduct
Board. Some witnesses did not know of the board's existence. Others expressed doubt that the board would take corrective
6

action if a complaint was filed. All of this was of concern to the commission. The conduct board's handling of a 2006
complaint against Conahan raised major concerns for the commission which will be addressed later in this report.
\Vhile the scope of the commission's work focused on Luzerne County, it should be stated that the corruption and
system failures in that county do not appear to be representative of the Commonwealth as a whole. For a county court
system to be shot through with corrupt judges and underlings is an aberration. Unfortunately, the Luzerne County scandal
has caused a taint to seep out and touch many others. These are individuals and institutions that have done nothing wrong,
but who are affected because they are Pennsylvania judges, court employees, or individuals involved in county juvenile
justice systems throughout Pennsylvania. In no way, for example, does the Luzerne County scandal reflect the performance
of juvenile courts throughout the rest of the Commonwealth. In fact, Pennsylvania's juvenile court system, in its national
profile, is considered a leader and a model of high standards and best practices. Regrettably, the scandal in Luzerne County
may have done harm to the reputation of that system, as it may have done harm to the Commonwealth's judiciary
generally. There are seven Supreme Court justices, 15 judges of the Superior Court, nine judges of the Commonwealth
Court, more than 400 judges of the Common Pleas Courts, more than 500 magisterial district judges, and approximately
200 senior judges in Pennsylvania. Few among them have been cited for ethical breaches. Fewer still have been charged
with crimes.
The Interbranch Commission on Juvenile Justice also recognizes the pain and embarrassment the judicial corruption
scandal has inflicted on the community and on the citizens of Luzerne County. The wave of negative publicity that has
continued for more than a year, the repeated "kids for cash" refrain, and the continuing disclosures of new corruption cases
has become a drumbeat, almost a daily cavalcade painful to endure.
The news media, however, has played an important role. Other institutions and individuals may have failed in their
roles, but the newspapers and other media of Luzerne County have impressively fulfilled theirs. While the media has
thrived on the story it also has done an exemplary job of shining the light in dark corners and keeping readers, listeners
and viewers informed of unfolding events. This has been especially true ofWilkes-Barre's two competing newspapers, the
Times Leader and the Citizens' Voice, which have rooted out and reported many important stories, and of a third
newspaper, not traditionally known for investigative reporting, the Legal Intelligencer, of Philadelphia.
To restore public confidence in the administration of justice in the face of corruption that citizens of Luzerne County
have witnessed seems a formidable challenge. Yet a number of those who appeared before the commission spoke of the
opportunity presented in this gloomy atmosphere, the possibility that the appalling scope of the corruption might generate
a catalyst for positive change. Indeed, much change already has occurred within the court system of Luzerne County. A
great deal more change is needed to ensure that there \vill be no repetition of the past and the misdeeds of villains who now
face justice are erased. 'lhe commission in this report will outline what it sees as the needs and make recommendations as
to hm\[ to address them.
This report is presented in fIve sections. Following this Introduction is Section II, titled What Went 'Wrong, a narrative
that describes the many elements of the judicial scandal and the breakdown of the juvenile justice system in Luzerne
County. Section III, The Proceedings of the Interbranch Commission on Juvenile Justice, provides a summary of the
commission's investigation followed by segments, organized in categories that contain detailed findings and testimony.
Section IV, Recommendations, provides all of the commission's recommendations. Section V is the report's Conclusion.

7

II. WHAT WENT WRONG
A Petition to the Supreme Court

The District Attorney of Luzerne County opposed the
Juvenile Law Center's petition arguing that a factual record
documenting a broad pattern of abuse had not been
established and the law center should not be permitted
to by-pass the lower courts where such a record could
be developed.

On April 29, 2008, the Juvenile Law Center of Philadelphia,
a public interest law firm, filed a petition with the
Pennsylvania Supreme Court asking the court to exercise its
King's Bench Power or Power of Extraordinary Jurisdiction
"to end the practice of the Luzerne County Common Pleas
Court of conducting delinquency hearings without counsel
for children - or without lawful waivers of counsel."

The Administrative Office of Pennsylvania Courts (AOPC),
responding on behalf of Ciavarella, contended that issues
raised by the Juvenile Law Center were moot because
corrective measures had been taken. Shortly after the law
center filed its petition, Ciavarella, then the preSident judge
o[Luzerne County had removed himself from juvenile
court in May; 2008. The AOPC argued that the new judge
aSSigned to juvenile court was abiding by the rule requiring
a colloquy with juvenile defendants who waived counsel. In
addition, new written notices were being provided to
juveniles advising them and their parents of the right
to counsel.

The Supreme Court administers the entire Pennsylvania
court system. With its King's Bench Power and Power of
Extraordinary Jurisdiction, the court can take up any case
or problem within the court system which it deems to be of
immediate public importance.
The petition of the Juvenile Law Center contended that a
matter of urgent importance was at hand in Luzerne County
in the violation of constitutional rights of youths who
appeared on delinquency matters before Judge Mark A.
Ciavarella, Jr.

'£he Supreme Court on January 8,2009, denied the petition
of the Juvenile Law Center and declined to exercise its
King's Bench Power.

Under Pennsylvania's Rules ofJuvenile Court Procedure,
judges presiding in juvenile courts throughout the
Commonwealth are reqUired to inform juvenile defendants
of the right to a lawyer prior to any proceeding. Juveniles
are not permitted to waive the right to counsel unless judges
conduct on-the-record discussions or "colloquies" to ensure
that youths understand the right they are giving up and also
understand the charges against them. TIle specific rule
setting these requirements, Rule ofJuvenile Court
Procedure 152, was adopted by the Supreme Court on April
1, 2005, and took effect on October 1 of that year.

ChiefJustice Ronald D. Castille provided the Interbranch
Commission on Juvenile Justice with a 14-page
memorandum detailing the history of the litigation
involving the Juvenile Law Center's petition. He noted that
the memo did not reveal any internal deliberations of the
Supreme Court "or other bodies, persons or institutions
assisting the Supreme Court in its actions in this matter."
Chief Justice Castille said in the memo that the Supreme
Court, in reviewing the pleadings related to the Juvenile
Law Center's petition, took into account all information it
had received, including the fact that Ciavarella was no
longer hearing juvenile cases and that juveniles and their
parents were being advised of the righL La counsel. "NoLhing
in the pleadings suggested criminal conduct related to
juvenile proceedings by former judges Ciavarella or
Conahan, nor was there any information, or allegation,
respecting the PA Child Care facilities or the judges'
connection thereto."

TIle Juvenile Law Center contended in its petition to the
Supreme Court that Rule 152, which had been in effect for 2
1/2 years, was not being followed by Ciavarella. Instead, the
center asserted, Ciavarella routinely failed to properly
advise juvenile defendants of the right to counsel with the
result that large numbers of youths in his court were
unrepresented.
While petitioning on behalf of a few clients, the Juvenile
Law Center asked the Supreme Court to issue a broad order
expunging the records of all unrepresented juveniles who
had been ruled delinquent by Ciavarella after Rule 152 took
effect on October 1,2005.

Criminal charges had not been filed on January 8, 2009,
when the Supreme Court declined to undertake a review of
Luzerne County juvenile court.

The state Attorney General's ODlce and the state
Department of Public Welfare filed amicus briefs urging
the Supreme Court to undertake a review based on statistics
of the Pennsylvania Juvenile Court Judges' Commission
shOWing that approximately 50 percent of all juvenile
defendants in Luzerne County were unrepresented
by counseL

But they soon ,·"ould be.

s

1he closing of the county-owned juvenile facility and the
lease of PA Child Care were well publicized and highly
controversial events in Luzerne County. But the criminal
charges introduced for the first time accusations that
Conahan and Ciavarella had received payoffs related to
those events. 1he allegation that the county's current
and immediate past president judges had been selling
the freedom of children for personal profit created a
media sensation.

The Filing of Criminal Charges
On January 26,2009, just 18 days after the Supreme Court
issued its ruling, Martin C. Carlson, then the United States
Attorney for the Middle District of Pennsylvania, filed a 22page document in the U.S. District Court in Scranton,
bearing the heading: "Information."
In a legal context, the othenvise nondescript term
"Information" had precise meaning. It meant that criminal
charges were being filed in a case where a grand jury
indictment had been waived. 1he defendant or defendants
had agreed to plead guilty.

Accompanying the criminal charges were plea agreements.
Conahan and Ciavarel1a each agreed to plead guilty to one
count of "honest service" fraud - depriving the public of the
honest service expected of public officials - and one count of
conspiracy to commit federal tax fraud. Under the
agreements, the judges anticipated sentences of 87 months
in prison. The U.S. Attorney signed the agreements. A final
decision would be up to the sentencing judge. Conahan and
Ciavarella also faced the potential of $500,000 fines and
restitution orders.

In this case, the defendants were Mark A. Ciavarella, Jr., and
Michael T. Conahan. The Luzerne County Common Pleas
Court judges were charged with federal tax violations and
defrauding the public of the right to honest service by
elected public officials. The judges were accused of taking
$2.6 million in payofE from the owner and builder of two
juvenile detention facilities, PA Child Care in Pittston
Township, Luzerne County, and \Vestern PA Child Care in
Butler County, Pa., during a period when Ciavarella, as the
juvenile court judge of Luzerne County, had been placing
large numbers of juveniles in detention at those facilities.
Many of the juvenile defendants had appeared before
Ciavarella without attorneys.

'The filing of criminal charges triggered a series of actions by
the Pennsylvania Supreme Court.
On January 28,2009, the court removed both judges from
active judicial service, relieving Ciavarella of all judicial and
administrative responsibilities, and revoking the senior
judge certification of Conahan, who had retired from the
bench in 2007 and become a senior judge. Conahan's per
diem pay as a senior judge was terminated. Ciavarella, a
full-time elected judge, was temporarily permitted to
continue receiving pay and benefits.

As outlined in the charges, Conahan and Ciavarella had
received illegal income after entering into "agreements
guaranteeing placement of juvenile offenders" in PA Child
Care. 'Ihis appears to have been the genesis of the "kids for
cash" phrase that immediately attached to the case.
The individuals who allegedly made the payoffs - listed in
the Information as "Participant 1" and "Participant 2" - later
were identified as Robert]. Powell, a Luzerne County
attorney and one of the original partners in PA Child Care
and Western PA Child Care, and Robert K. Mericle, the
contractor who built the two juvenile centers. Both men
have pleaded guilty to federal charges and are cooperating
with federal authorities.

On January 30, the Juvenile Law Center returned to the
Supreme Court and, in light of the federal criminal charges,
again asked the court to undertake a review of Luzerne
County's juvenile court. The law center argued that, in
addition to widespread rights violations in the denial of
counsel, there appeared to have been a "wholesale
subversion of the Luzerne County juvenile justice system
over a period of many years." 111e petition requested the
appointment of a special master to review juvenile cases to
determine whether adjudications should be reversed and
the records expunged.

The criminal Information charged that Conahan and
Ciavarella had taken a series of actions to promote PA
Child Care.

On February 2, the Supreme Court vacated its previous
order denying the Juvenile Law Center's King's Bench
petition.

As president judge, Conahan had removed funding from
the Luzerne County budget for the existing Luzerne County
juvenile detention facility, resulting in its closure. That was a
county-owned facility. In its place, Conahan had advocated
in favor of the privately owned PA Child Care in 2003 and,
later, Western PA Child Care. iNith Conahan's support, the
facilities then received county contracts to house juvenile
offenders who were placed in detention by Ciavarella. A
county contract worth approximately $58 million was
awarded to PA Child Care in 2004.

Chief Justice Castille, in his memorandum to the
Interbranch Commission on Juvenile Justice, wrote:
"In its Motion for Reconsideration, the JLC sought to
enlarge the class of juveniles to include all juveniles who
9

routine deprivation of children's constitutional rights to
appear before an impartial tribunal and to have an
opportunity to be heard."

were adjudicated delinquent by Ciavarella during the entire
time that he received illegal payments, i.e., from 2003
through May 23, 2008, the date that Ciavarella ceased to
preside over delinquency proceedings in Luzerne County.
On February 5, 2009, Luzerne County District Attorney
Jacqueline Musto Carroll filed a reply, concurring in the
JLC's reconsideration request for the appointment of a
special master to review the juvenile cases."

Judge Grim recommended that cases adjudicated by
Ciavarella without counsel be vacated and the records
expunged if the offenses involved minor crimes such as
summary offenses or misdemeanors of the third degree.
That was his immediate recommendation. He would
evaluate cases involving more serious offenses in the next
phase of his review.

On February 11, 2009, the Supreme Court granted the
Juvenile Law Center's petition, exercised its King's Bench
Power and assumed full jurisdiction to address the handling
of juvenile delinquency proceedings in Luzerne County. The
court appointed Senior Judge Arthur E. Grim, of Berks
County, as special master to review all cases in which
Ciavarella had committed juveniles to PA Child Care and
Western PA Child Care and cases in which juveniles had
been denied the constitutional right to counsel in
Ciavarella's court. Grim was given 120 days to file an
interim report. The Supreme Court order said: "The goal of
this Court is to determine whether the alleged travesty of
juvenile justice in Luzerne County occurred, and if it did, to
identify the affected juveniles and rectify the situation as
fairly and swiftly as possible."

His report explained the basis for his recommendation:
"Had the juveniles in these [minor] cases been represented
by competent counsel, had they appeared before an
impartial tribunal, and had their other constitutional rights
been protected, the vast majority of these cases would have
resulted in consent decrees, or some lesser sanction. Had
these cases resulted in consent decrees or lesser sanctions,
all of these juveniles would be entitled to have their juvenile
delinquency case records expunged by now pursuant to 18
Pa. C.S. Section 9123. An additional factor weighing in
favor of vacating the adjudications and consent decrees and
expunging the records in the categories specified below is
that this prompt action in these non-serious cases will be
at least one step toward righting the wrongs which were
visited upon these juveniles and will help restore confidence
in the justice system. Furthermore, it is not in the interest
of the community to re-litigate these non-serious cases,
nor do I believe that the victims would be well-served by
new proceedings."

On February 12, Ciavarella and Conahan pleaded guilty in
U.S. District Court. The following day, the Supreme Court
terminated the salary and benefits of Ciavarella.

The Special Master
Arthur Grim, the former president judge of Berks County
and the chairman of the Pennsylvania Juvenile Court
Judges' Commission, began his review of juvenile cases
handled by Ciavarella immediately.

Two weeks after receiving that report, the Supreme Court
issued an order on March 26,2009, authorizing Judge Grim
to move forward "as expeditiously as possible" to vacate the
adjudications and expunge the records of the cases in the
categories he had identified. Approximately 360 juveniles
were identified as eligible or potentially eligible to have
their cases vacated and the records expunged under the
court's order. To accommodate the interests of individuals
involved in civil litigation who claimed to have been
adversely affected by actions of Ciavarella or Conahan, the
Supreme Court later ordered that juvenile records subject
to expungement be kept under seal pending the outcome
oflitigation.

One month after his appointment, on March 12, Judge
Grim filed his first interim report with recommendations to
the Supreme Court.
Noting that Pennsylvania Rule ofJuvenile Court Procedure
152 provides that juveniles may not waive the right to
counsel unless "the waiver is knowingly, intelligently, and
voluntarily made" and the judge "conducts a colloquy with
the juvenile on the record," Judge Grim wrote:
"My preliminary investigation, including in-chambers
discussions on February 17, 2009 with the Chief Public
Defender, the First Assistant District Attorney, an d the
Chief Deputy Juvenile Probation Officer [all of Luzerne
County], points to the conclusion that a very substantial
number of juveniles who appeared without counsel before
Judge Ciavarella for delinquency or related proceedings did
not knowingly and intelligently waive their right to counsel.
My investigation has also uncovered evidence that there was

After further investigation and review of juvenile records,
Judge Grim filed a later report to the Supreme Court on
August 7,2009, in which he made a sweeping
recommendation.
He had identified 1,866 cases in which juveniles appeared
before Ciavarella without counsel between 2003 and 2008.

10

"Based upon my review of the transcripts," the August 7
report stated, "...1 conclude that there is clear and
convincing evidence that no juvenile who appeared before
Judge Ciavarella without counsel between 2003 and May
2008 knowingly and intelligently waived his/her right
to counsel."

be expunged. In cases involving juveniles who had not been
discharged from detention, placement or probation or in
which fines, restitution or fees had not been paid, Judge
Grim recommended that he be authorized to promptly
review each case to determine "an appropriate resolution"
such as dismissal or a new hearing.

"I also conclude," the report continued, "Judge Ciavarella
knew he was violating the law and court rules by failing to
conduct any, or legally adequate, waiver of counsel
colloquies for the juveniles appearing before him. I base
this conclusion upon (a) the transcripts I have reviewed,
(b) the sheer number of juveniles, enumerated above, who
appeared before Judge Ciavarella without counsel between
2003 and May 2008, and (c) the fact that Judge Ciavarella
was reversed by the Pennsylvania Superior Court in the
delinquency case In re A.M., 766 A. 2d 1263 (Pa. Super.
200l), for failing to provide counsel for the juvenile
and/or failing to conduct an appropriate waiver of counsel
colloquy."

111e report cited transcripts of juvenile proceedings from
Ciavarella's court. In the proceedings, Judge Grim wrote,
there often was "not a single word" concerning the juvenile's
right to counsel.

In that 2001 Superior Court case, Ciavarella had placed a
13-year-old youth in detention without informing him of
his right to counsel. 1he youth had admitted to a charge of
indecent assault. His mother requested a continuance so an
attorney could be present at a hearing. Ciavarella ignored
the request, adjudicated the juvenile and placed him in
detention. The Superior Court vacated Ciavarella's
adjudication. The court cited Pennsylvania statutory and
case law requiring that juvenile defendants must be afforded
the right to counsel at critical proceedings such as
disposition hearings.

The Court: "Based upon her admission, I vvill adjudicate
her delinquent. Where did this occur?"

One transcript of a 2006 proceeding before Ciavarella reads
as follows:
The Court [Ciavarella]: "K, it says here that you have been
charged with violation of the Controlled Substance, Drug[,]
Device and Cosmetic Act. How do you wish to plead?"
The Juvenile: "Guilty."

The Juvenile: "School."
The Court: "What grade are you in?"
The Juvenile: "Eighth."
The Court: "Were you at the school when I was there?"
The Juvenile: "Yeah."

After that corrective ruling, Ciavarella was quoted in the
vVilkes-Barre Times Leader as saying he had learned a
lesson. ''I'll never do it again," Ciavarella said, according to
the newspaper. "They (juveniles] obviously have a right to a
lawyer, and even if they come in and tell me that [they]
don't want a lawyer, they're going to have one."

The Court: "'vVhat did I say about drugs in school?"
The Juvenile: "TI1at you're going to get - well, you're going
to get arrested in school."
rll1e Court: ""Vhat else did I tell you?"

Judge Grim found, however, that for years afterward
juveniles stood before Ciavarella unrepresented, and
Ciavarella decided their cases without mention of the right
to counsel. There was no discussion or colloquy to ensure
that the youths understood the right they were giving up in
waiving the right to counsel. In 54 percent of juvenile cases
Ciavarella adjudicated between 2003 and 2008, youths
were unrepresented.

'The Juvenile: "rjhat you will get arrested and get charged."
The Court: "What did I say I will do?"
The Juvenile: "Send us away."
The Court: "Did you think I was kidding?"

Having reached those conclusions in his report, Judge Grim
recommended to the Supreme Court that all adjudications
of delinquency and consent decrees entered by Ciavarella
between January 1, 2003, and JvIay 31,2008, be vacated. He
recommended that the cases be dismissed and the records

The Juvenile: "No."
'The Court: "Very good. She will be remanded. Send her to
FACT. Let her stay there until she learns her lesson. I mean
what I say. Thank you."
II

Another transcript from 2008:

Juvenile's Mother: "Excuse me, sir. I do have a letter. He is
seeking counseling."

The Court: "T[.] (juvenile's Mother], R[.] [juvenile], you had
an opportunity to review the waiver of counsel document?"

The Court: "Give it to Mr. Piazza, please. How will you test
for drugs today?"

Juvenile's Mother: "Yes, sir."
The Juvenile: "I will pass."
The Juvenile: "Yes, sir."

'1be Court: "Good. He will be remanded."

The Court: "Is there anything in it that you did not
understand?"

Judge Grim's recommendation for universal expungement
of juvenile cases was based on a sampling of 100 such
transcripts.

Juvenile's Mother: "No, sir."

The Supreme Court Response

rille Juvenile: "No, sir."

The Court: "Based upon his admission I will adjudicate him
delinquent. What were you thinking about?"

In response to Judge Grim's recommendation, the Supreme
Court on October 29, 2009, issued an extraordinary ninepage order. The court adopted the recommendation and
directed that adjudications and consent decrees involving
all juveniles who had appeared before Ciavarella between
January 1,2003 and May 31, 2008, be vacated and the
records expunged. Virtually every juvenile case Ciavarella
had handled had been tainted, the court concluded, due to
payoffs he had admitted receiving and his disregard for the
rights of juveniles who appeared before him in court.
Although estimates of the total number of cases handled by
Ciavarella have varied 'widely, the final number of dismissals
and expungements under the Supreme Court's order is
expected to involve approximately 4,000 cases.

The Juvenile: "I don't know."

In its order, the Supreme Court said:

The Court: "Were you at Crestwood [High School] when I
was there?"

"Judge Grim's independent review of the transcripts of
individual cases disclosed Ciavarella's systematic failure to
determine whether a juvenile's waiver of the right to
counsel was knowingly, intelligently and voluntarily
tendered; the failure to conduct the requisite waiver
colloquy on the record; the failure to advise the juvenile of
the elements of the offenses charged; and the failure to
determine whether an admission was tendered, and then to
apprise the juvenile of the consequences of an admission of
gUilt. In addition, this Court's review of those same
transcripts reveals a systematic failure to explain to the
juveniles the consequences of foregoing trial, and the failure
to ensure that the juveniles were informed of the factual
bases for what amounted to peremptory guilty pleas. The
transcripts reveal a disturbing lack of fundamental process,
inimical to any system of justice, and made even more
grievous since these matters involved juveniles...
Ciavarella's complete disregard for the constitutional rights
of the juveniles who appeared before him without counsel,
and tlle dereliction of his responsibilities to ensure that the
proceedings were conducted in compliance with due
process and rules of procedure promulgated by this Court,
fully support Judge Grim's analysis."

The Court: "Is that your signature on the documents?"
Juvenile's Mother: "Yes, sir."
The Juvenile: "Yes, sir."
The Court: "R[.], you've been charged with disorderly
conduct. How do you wish to plead?"
1be Juvenile: "Guilty."

'lhe Juvenile: "Yeah."
The Court: "Did you hear what I had to say?"
The Juvenile: "Yeah."
The Court: "Did you think I was kidding?"
The Juvenile: "No."
The Court: "Why would you do this' \Vhy would you make
me send you away?"
The Juvenile: "I don't know."
1be Court: "I will remand him to Camp Adams. He will be
in the ACT Program. He will stay at Camp Adams until he
learns how to make better decisions. While he's at Camp
Adams I want a drug and alcohol evaI completed. And if
required when he's done I want intensive outpatient relative
to any problems they might find."
12

The court found that even cases in which juveniles were
represented by la""l'ers and cases in which youths were not
placed in PA Child Care or Western PA Child Care w'ere
tainted. It held:

With coal no longer king, Luzerne County and its people
endured long years of economic depression. Added
hardships came with disastrous floods in 1936 and 1972. In
politics, a culture of mutual back-scratching dominated
relationships between politicians, public officials and
businessmen. A powerful organized crime group held sway
in the region. Today, the county, with a population of
312,000, reflects all that history. It is a cauldron of mixed
elements - a patchwork of76 municipalities, urban and
rural, in which the multi-ethnic population has
intermingled and intermarried for more than a century.
Mark Ciavarella and Michael Conahan are products of that
culture. They were born into it, Ciavarella in \Vilkes-Barre
in 1950 and Conahan in Hazleton in 1952, and they grew
up in it.

"Judge Grim refers to the 'pall' that was cast over all juvenile
matters presided over by Ciavarella, given his financial
interest, and his conduct in cases where juveniles proceeded
without counsel. We fully agree that, given the nature and
extent of the taint, this Court simply cannot have
confidence that any juvenile matter adjudicated by
Ciavarella during this period was tried in a fair and
impartial manner."

Who Were These Men!
Mark Ciavarella and Michael Conahan are natives of a
region in Pennsylvania with a stormy and violent history
dating to colonial days, a rugged, isolated locale which even
today seems to exist unto itself Luzerne County is a place of
exceptional natural beauty with mountains, lush valleys and
the magnificent North Branch of the Susquehanna River
flowing through it. The principal city of Wilkes-Barre was
described by a justice of the Pennsylvania Supreme Court in
the year 1900 as "the most picturesquely beautiful city in the
Commonwealth." But that was in the golden era when the
coal mines and railroads and factories were churning out
wealth for their owners, before time and events tarnished
that lovely image. The history of the Wyoming Valley is
written in tales of greed, violence, fortunes won and lost,
conflict and conuption.

Conahan was a magisterial district judge for 15 years before
winning election to the Court of Common Pleas in 1993.
Ciavarella was elected to the Common Pleas Court in 1995.
The two men were close friends. 111ey were partners in
business ventures and next door neighbors for a time. With
their wives, they shared a luxury condominium in Florida.
Ciavarella has received far more public attention in the
"kids for cash" scandal than Conahan. That is because
Ciavarella presided in juvenile court where he relished his
role as a "zero-tolerance" judge. He never shied away from
the media.
Even after charges were filed against him, Ciavarella
continued to speak with the media, raising his profile even
higher by disputing various allegations and interpretations
of charges. In an extraordinary appearance, he testified in
an unrelated civil matter and talked abollt payoffs he had
received - referring to them as "finder's fees."

In colonial days, settlers from Connecticut and Pennsylvania
and Native Americans waged war for control of the fertile
river valley. In the 19th and 20th Centuries, king coal
produced many tortunes. Tens of thousands of exploited
immigrant workers labored in the mines to bring up the
hard anthracite coal - "black diamonds" - that made mine
owners rich. But market changes sent the coal industry into
deep decline as the 20th Century advanced. Oil and gas
replaced coal as a heating fuel. The coal companies began to
scrounge and cut corners for profits. 'When the Knox Coal
Company illegally excavated beneath the Susquehanna
River in 1959, the Susquehanna broke through the roof of
Knox's River Slope Mine. A thundering torrent roared into
mine shafts and passage\vays, sweeping 12 miners to their
deaths. A massive whirlpool sucked water through miles of
interconnected mines beneath the "Vyoming Valley. To plug
the hole, workers rolled 60 coal hopper cars into the
whirlpool.lhen 400 one-ton coal cars. rlhen 25,000 cubic
yards of dirt, rock and boulders. When the hole was sealed,
billions of tons of anthracite coal had been lost forever. rnle
coal was inaccessible in the flooded mines. The Knox IvIine
disaster was a death knell for an industry that had been in
decline for half a century.

By contrast, Conahan remained silent and out-of-sight after
the charges were filed, allo\ving the public to see him only as
a stone-faced, one-dimensional figure. But Conahan was far
from a bystander in the breakdown of the juvenile justice
system in Luzerne County. By all accounts, he was deeply
involved in activities that led to those failures. As president
judge from 2002 through 2006, Conahan wielded
tremendous power. He was described by some as "the boss,"
and he acted like one. He ran the courthouse like a personal
sovereignty, placing friends and relatives on the payroll,
sealing records at will and personally assigning cases.
Conahan was known for a gentlemanly demeanor, but he
was a power-broker, and he was feared.
For years, it was Conahan's habit - attested to in court
records - to share meals with William "Big Emy" D'Elia, the
reputed organized crime leader of Northeastern
Pennsylvania. l11e two men often ate breakfast together at
13

Perkins Restaurant on Route 309 in Wilkes-Barre. They met
early, around 6:30 a.m., and sat in a booth in a back corner
of the restaurant's front section where no other patrons
were seated. At times, business papers and envelopes were
spread on the table before them. They sometimes discussed
court cases.

received the assignment at the direction of then- President
Judge Conahan.
Ciavarella heard the case without a jury. After an eight-day
trial in 2006, he issued a $3.5 million verdict in favor of
Joseph and Acumark. The verdict was upheld by the
Pennsylvania Superior Court. The newspaper company
appealed to the Pennsylvania Supreme Court. While the
appeal was pending, a witness emerged with a striking story.

The contacts between the president judge and the alleged
mob boss were not limited solely to breakfast meetings.
D'Elia sometimes dropped off envelopes at the Luzerne
County Courthouse which were hand-delivered to Conahan
by a courthouse security guard.

Robert Kulick, a former restaurant owner in Luzerne
County, knew both Conahan and D'Elia. Kulick sometimes
shared breakfast with the judge and the reputed mob leader
at Perkins Restaurant. Kulick claimed that D'Elia had told
him before the defamation case went to trial that the
outcome would be "positive" for Joseph and Acumark.

Details of the relationship between the judge and the
reputed mob boss flow from an improbable source - a
defamation case.

The Platt Report

In light of Kulick's allegation, and against the backdrop
of the criminal charges against Conahan and Ciavarella,
the Supreme Court assigned Judge Platt to conduct
an evidentiary hearing. Kulick at the time was awaiting
sentencing on federal weapons possession charges.
He was cooperating with authorities in the ongoing Luzerne
County corruption probe. His eventual testimony in
connection with the defamation case was part of
that cooperation.

Unrelated to the federal criminal charges against Conahan
and Ciavarella, the Pennsylvania Supreme Court in 2009
ordered a review of a case in which Ciavarella in 2006
awarded a $3.5 million verdict to a man who had sued a
Wilkes-Barre newspaper for defamation.
The newspaper, the Citizens' Voice and its owner, the
Scranton Times, L.P., contended that the newspaper was
denied a fair trial. In light of corruption charges against
Ciavarella and the emergence of a witness who claimed
there had been a prearranged outcome in the trial, the
newspaper asked the Supreme Court to exercise its King's
Bench Power to order a review of the defamation case.

Judge Platt conducted the evidentiary hearing on July 1 and
2,2009.
In a proceeding filled with revelations, one witness stood
out above all others. His name was Mark Ciavarella. The
former judge took the witness stand on July 2 in Courtroom
1B of the Lehigh County Courthouse in Allentown.

The Supreme Court granted the petition on April 7, 2009,
and assigned President Judge William H. Platt of Lehigh
County to hold an evidentiary hearing to determine if a
new trial was warranted.

At the time, Ciavarella's guilty plea in federal court was still
in effect. On the witness stand, the former judge freely
described arrangements by which he had received hundreds
of thousands of dollars in payments from the contractor
who built PA Child Care and Western PA Child Care and
from one of the partners who owned the facilities.

The plaintiff in the defamation case was a Luzerne County
businessman named Thomas Joseph, a friend and nominal
business associate of William D'EIia. Joseph filed suit after
articles appeared in the Citizens' Voice in 2001 reporting
that federal investigators had served search warrants on
Joseph's home and his company, Acumark Inc., and seized
records in connection with a federal racketeering
investigation ofD'Elia and associates. The articles, quoting
unnamed sources, said the investigation might be focused
on money-laundering, drug dealing and illegal gun sales.
Joseph was a friend ofD'Elia's who claimed to have had
only minor - and legitimate - business dealings with him.
He contended in his lawsuit that the newspaper articles
were defamatory.

Ciavarella testified that it was his idea, not Conahan's,
to establish a new juvenile detention facility for
Luzerne County.
"During my first two or three years as the juvenile court
judge, I came to recognize, realize and understand that the
faCility where we were housing juveniles was an absolute
dump and absolute disgrace," Ciavarella testified.
"I went to the county commissioners and I asked them to
build a new detention center. 'Ihey told me they would, but
they didn't want to build it and announce that until after the
election. 'Ihis was in 1998 or '99.

The procedural background showed that Ciavarella was not
assigned to the Joseph case by objective means, such as a
rotation or wheel method used in many courts. Rather, he
14

"I did not consider what I did to be illega!," Ciavarella
testified. "I did not consider the money that I was receiving
to be illegal mob money. I was told it was legal money. I was
told it was something that I was entitled to. And for that
reason, I did not have a problem with where that money
went or how it came to me."

"The election came. The election went. They didn't take any
action .. .I went to Judge Conahan and I said, if you know
anybody that has the wherewithal to build a facility, tell
them to build one because this place is a dump and it
shouldn't be open. That's how it came about."
Ciavarella said Conahan lined up Robert Powell and a
partner, Gregory Zappala, who has not been charged, to
undertake the project.

Even so, he acknowledged that he did not pay taxes on the
money. He said he thought Conahan would pay the taxes.

Ciavarella testified that payments he and Conahan received
from Powell took the form of rent on a condominium in
Florida. The rate was $10,000 a month for six years prepaid. Ciavarella said that Powell never paid the full
amount that was due: He only paid $520,000.

One month after the evidentiary hearing, President Judge
Platt filed his Report and Recommendation with the
Supreme Court on August 3, 2009. Drawing from witness
testimony and exhibits he made findings of fact which
included the following:
• From 2004 to 2006, then-President Judge Conahan
and William D'Elia held breakfast meetings at least
twice a month at Perkins Restaurant on Route 309,
meeting at about 6:30 a.m. and sitting in a booth in a
rear corner of the restaurant's front section where
other patrons normally were not seated.
• Robert Kulick sometimes joined Conahan and D'Elia
at these sessions.
• Kulick and D'Elia discussed the Citizens' Voice
defamation case many times, and D'Elia laughed
saying "that Joseph would win the case." D'Elia told
Kulick that, based on information he received from
Conahan, there would be a "positive outcome" for
Joseph.
• From 2003 to 2005, Patricia E. Benzi, a security guard
at the Luzerne County Courthouse, delivered
between 10 and 20 plain envelopes from D'Elia to
Conahan. Benzi picked up the envelopes from D'Elia
in the employee parking lot of the courthouse and
carried them to Conahan at his judicial chambers.
• Ciavarella claimed to be unaware of any judicial
irregularity in the Joseph case. However, in view of
his guilty plea in federal court, Ciavarella admitted on
the witness stand to being a corrupt judge at the time
he presided over the Joseph case.
• Ihe assignment of the Joseph case was out of the
ordinary. It was made by William T. Sharkey, Sr., the
court administrator [Conahan's cousin], at the
direction of Conahan. Ciavarella was not assigned to
handle non-jury trials at the time.
• Attorney Robert Powell appeared in court before
Ciavarella during the period that he was making
payments to Ciavarella. Ciavarella did not disclose his
private financial arrangements with Powell to other
lawyers. He admitted he should have made that
disclosure, and that he should have recused himself
from Powell's cases. But no attorney, Ciavarella said,
asked the right question to prompt him to do so.

Ciavarella testified that Robert Mericle wanted the
construction contract for PA Child Care, and enlisted
Ciavarella's help to get it.
"Sometime after the contract was set, Rob Mericle came
into my chambers and indicated that he was going to pay
me a finder's fee."
Question: "When was that?"
Ciavarella: "My recollection was sometime, I believe, in
April of 2002."
Question: "How much?"
Answer: "He told me he would pay me ten percent of
whatever the contract price was."
Question: "When did you decide to cut Michael Conahan in
on that?"
Answer: "1hat day."
Question: "How did you go about doing that?"
Answer: "Walked over to his chambers and told him what
had transpired in my chambers. He said to me that that is
one hell of a friend you have. 1hat was the end of it."
Asked why he offered Conahan half the money, Ciavarella
replied: "He was the one that made it all possible. He put
the people in the room that came up with the financing to
build the facility."
Ciavarella testified that his share of the "finder's fee" was
$440,000. 1brough a series of transactions, he said, the
money was paid from Mericle's company to an individual
named Robert Matta, then to a firm owned by Conahan
called Beverage Marketing, and finally to him.
15

The judge noted that Ciavarella denied in his testimony that
he had discussed the Joseph case with Conahan, but Platt
found this doubtful.

• Ciavarella did not think it was smart for Conahan to
eat breakfast with D'Elia on a regular basis, given
D'Elia's alleged organized crime involvement.
Conahan responded that he and D'Elia were friends;
they had been eating together for 30 years. He saw no
reason to stop.

"The court finds it difficult to reconcile this denial given
their close friendship, their judicial relationship, and their
shared involvement in the criminal scheme that resulted in
the federal criminal prosecutions. Ciavarella knew that
Conahan and D'Elia had a long, close personal relationship
and knew from reading the newspaper articles that formed
the basis for the Joseph case that D'Elia played a prominent
[role] in the content of those articles. Based upon these facts
and considering that Ciavarella's initial response after
speaking with the contractor who offered to make illegal
payments was to discuss it with Conahan, the court finds it
unlikely that Ciavarella never spoke with Conahan about
the Joseph case."

Judge Platt recommended to the Supreme Court that a
new trial in the Joseph case was warranted. He concluded
that many aspects of the case presented appearances
of impropriety.
The irregular assignment of the case to Ciavarella was one
example. Of that assignment, the Platt report said:
"[Deputy Administrator for Civil Trials Ann Burns] was so
concerned about the way the trial assignment was made
that she included a notation of how the assignment was
made in the Court Administrator Office's database. Making
this notation was something that she normally did not do.
She made the notation in this particular case, because she
wanted to protect herself. She did not explain why or from
whom she needed protection. A reasonable inference is that
Burns had some unspecified concerns about the practices
or the persons involved to cause her to take the unusual
step of recording who made the trial assignment in the
Joseph case."

As to Ciavarella, Judge Platt concluded: "Ciavarella's
admissions that he was a corrupt judge while presiding over
the Joseph case, that he did not report outside income on
the annual financial disclosure form for judges, that he lied
when completing the form, and that he failed to properly
report income on his tax returns are sufi1cient basis to
conclude that he violated his fiduciary duty to the citizens of
the Commonwealth of Pennsylvania, that he violated his
duty to refrain from conduct that constituted a conflict of
interest, and that he failed in his obligation to recuse
himself in cases in which he had a conflict of interest. These
conclusions alone are sufficient to create the appearance of
impropriety to serve as judge for any matter in the Joseph
case. Tellingly, former Judge Ciavarella, a witness called by
[Joseph], was, because of his demeanor and lack of remorse,
one of [the newspaper's] best witnesses. His testimony was
one of the factors that persuaded me there was and is an
appearance of impropriety and a need for a new trial in
this case."

The Platt report continues:
"The Joseph case involved a tangled web of interconnected
relationships that created the appearance of impropriety in
the way Ciavarella and Conahan conducted themselves
throughout the case. 'lhese relationships involved
Ciavarella, Conahan, D'Elia, Kulick, and Joseph. "Ihey may
not directly link all parties, and they may not have been
readily apparent. 'lhey were real, however, and help explain
the actions of Ciavarella and Conahan.

Judge Platt recommended that all substantive orders of
Conahan and Ciavarella in the Joseph case be vacated
and the case be returned to Luzerne County for a new nonjury trial.

"A central figure in this proceeding is D'Elia. The Joseph
case was predicated on ten newspaper articles that
discussed or mentioned Joseph and D'Elia, and others, in
connection with a federal criminal investigation. 'lhe
articles reported that D'Elia was a reported member of an
organized crime family in northeastern Pennsylvania. TIle
hearing evidence established that D'Elia had relationships
with Ciavarella, Conahan, Kulick, and Joseph that varied in
nature and degree. The other individuals had relationships
with one another, but the common denominator involves
the relationship each had with D'Elia."

On November 4, 2009, the Supreme Court adopted those
recommendations and ordered a new trial "to remedy the
pervasive appearance of impropriety in this case, and to
give justice, and the appearance of justice, an opportunity
to prevail."
In a seven-page order, the Supreme Court said:
"Conahan and Ciavarella were confederates in what appears
to have been (by Ciavarella's own admissions here) a longterm criminal conspiracy. 'Dle judicial officers also
positioned themselves and others (such as Sharkey) within

Judge Platt found that Conahan's longstanding friendship
with D'Elia created on its face the appearance of
impropriety
16

the Luzerne County court system so that they could control
the assignment and trial of individual cases, if they were
inclined to do so. And there was direct evidence that the
assignment of this case to Ciavarella was controlled by
Conahan and was not in the ordinary course of business."
The court added a comment about the underlying issue
involved in the lawsuit itself - the dispute for which
Ciavarella awarded a $3.5 million defamation verdict
against a newspaper:
"The inherently troubling nature of Conahan's and
Ciavarella's compromised positions as jurists is enhanced,
in this case, given that the subject matter of this defamation
lawsuit concerned newspaper articles reporting on the
undisputed fact of a federal criminal investigation into
D'Elia's and Joseph's alleged ties to organized crime
activities, an investigation which included search warrants
for Joseph's home and businesses."

Plea Rejection
Following the filing of criminal charges in January, the "kids
for cash" saga produced one stunning revelation upon
another for six months.
Then, on July 30, 2009, the plea agreement by which Mark
Ciavarella and Michael Conahan expected to be permitted
to serve 87 months in prison came undone. In an
unexpected ruling, the federal judge presiding over their
criminal case, Senior U.S. District Judge Edwin M. Kosik,
rejected the guilty pleas of the two former judges, saying
they had not met the terms of their plea agreements or
shown "affirmative acceptance of responsibility" for their
conduct.
After pleading guilty, Conahan and Ciavarella had
undermined the delicate terms of their plea agreements by
disputing and taking issue with the crimes they had
admitted to. They had done this in distinctly different ways,
Ciavarella publicly, Conahan privately.
Judge Kosik explained the distinction in his memorandum
and order rejecting the plea agreements.
"Although each defendant enters a plea of guilty to a
binding plea agreement," Judge Kosik wrote, "the probation
officers are charged with proViding a report that affords the
Court with a complete history of the defendants, and their
roles in aiding and abetting each other in the offenses. Each
defendant is afforded the right to object or dispute the presentence report, including the calculation of the sentence to
be imposed and other relevant factual items.
"Defendant Conahan filed several sets of objections, some
17

of which were resolved by the probation officer. The most
recent revised objections, which remain unresolved, total
some twelve which address more than one paragraph of the
pre-sentence report. Without elaboration for our purpose
here, some consist of denials concerning offense matters
including the receipts of money. The report represents that
Defendant Conahan refused to discuss the motivation
behind his conduct, attempted to obstruct and impede
justice, and failed to clearly demonstrate affirmative
acceptance of responsibility with his denials and
contradiction of evidence, which is essential to the tenor of
the Government's case.
"Defendant Ciavarella is less obstructive to the sentencing
report, but instead has resorted to public statements of
remorse, more for his personal circumstances, yet he
continues to deny what he terms 'quid pro quo' his receipt
of money as a finder's fee, notwithstanding the
Government's abundance of evidence of his routine
deprivation of children's constitutional rights by
commitments to private juvenile faci]jties he helped to
create in return for a 'finder's fee' in direct conflict of
interest with his judicial roles. Such denials are self serving
and abundantly contradicted by the evidence the
Government proffers as offense conduct."
Judge Kosik noted that the former judges had the right to
withdraw their guilty pleas. If they did not, he wrote, the
court "may dispose of the cases less favorably toward the
defendants than the plea agreements contemplated."
If that caution was not adequately clear, Kosik quoted the
oath that Conahan and Ciavarella had taken when they
became judges - " I do solemnly swear that I will support,
obey and defend the Constitution of the United States and
the Constitution of this Commonwealth and that I will
discharge the duties of my oITice with fidelity."
Kosik added this comment in his memorandum:
"Vve paraphrase what has been written about judges, that,
above all things, integrity is t.heir lot and proper virtue, the
landmark, and he that removes it, corrupts the fountain. In
this case, the fountain from 'which the public drinks is
confidence in the judicial system - a fountain which may be
corrupted for a time well after this case."
Ciavarella and Conahan withdre'w their guilty pleas.

Indictment
On September 9, 2009, a federal grand jury returned a <18count indictment charging both men with using the
Luzerne County Court of Common Pleas as a criminal
enterprise to enrich themselves, secretly deriving more than
$2.8 million - a sum increased from $2.6 million in the

earlier charges - in iHegal income between June 2000 and
January 2007.
Beyond honest services fraud and tax violations to which
Conahan and Ciavarella originally had agreed to plead
guilty, the indictment charged both men with violating the
federal racketeering statute, conspiracy, extortion, bribery,
money laundering - the latter involving the transfer of funds
to disguise alleged payoffs - and conspiracy to defraud the
United States by impeding the Internal Revenue Service in
the collection of income taxes.
The indictment charged:
"The actions from which they derived improper income
included, but were not limited to: entering into agreements
guaranteeing placement of juvenile offenders with PA Child
Care, LLC and 'Western PA Child Care, LLC; taking official
action to remove funding from the Luzerne County Court
budget for the Luzerne County juvenile detention facility,
effectively closing the county-ntn youth detention center;
facilitating the construction of juvenile detention facilities
and an expansion to one of those facilities by PA Child Care
and Western PA Child Care; directing that juvenile
offenders be lodged at juvenile detention facilities operated
by PA Child Care and Western PA Child Care ... assisting PA
Child Care and Western PA Child Care to secure
agreements with Luzerne County wOl1h tens of millions of
dollars for the placement of juvenile offenders. including an
agreement in late 2004 worth approximately $58,000,000."
111e indictment described the relationship and dealings
between Ciavarella, Conahan, Robert J. Powell and Robert
Mericle in this way:
"In approximately June of2000. the defendant Mark A.
Ciavarella, Jr., ,·vhose duties then included presiding over
juvenile proceedings as a judge of the Court of Common
Pleas for Luzerne County, had discussions with an attorney
who had a law practice in Luzerne County, [Powell] who
was interested in constntcting a .iuvenile detention facility
in Luzerne County. [Ciavarella] inh'oduced [Powell] to a
contractor [Mericle] who was a friend of [Ciavarella] for the
purpose oflocating land for the juvenile facility and for
constructing the tacility.
"[Powell] and another person, doing business as PA Child
Care, acquired land in Luzerne County and entered into an
agreement with [Mericle] to construct a juvenile detention
center to be operated by PA Child Care.
"On or about January 29, 2002. defendant Michael T.
Conahan, acting in his capacity as President Judge of
Luzerne County, signed a 'Placement Guarantee Agreement'
18

between PA Child Care and the Court of Common Pleas for
Luzerne County to house juvenile offenders at the PA Child
Care facility. The 'Placement Guarantee Agreement'
provided that the Court of Common Pleas for Luzerne
County would pay PA Child Care the annual 'Rental
Installment' sum of$1,314,000 and stipulated that '[t]he
obligation of the Court to make payment of the Rental
Installments shall be absolute and unconditional.'
"In or about December, 2002, [Conahan], acting in his
capacity as President Judge of Luzerne County took official
action to remove funding from the Luzerne County Court
budget for the Luzerne County juvenile detention facility.
The practical effect of this action was to close the Luzerne
County youth detention center.
"In or before January of2003, [Conahan] and [Ciavarella]
arranged to receive a payment in the amount of $997,600 in
connection with the roles they played as judges in
accomplishing the construction of the PA Child Care
juvenile detention facility.
"In order to conceal the $997,600 payment to defendants
Conahan and Ciavarella, Jr.• [Powell] and [Mericle] signed a
written 'Registration and Commission Agreement' prepared
by [Mericle] and backdated to February 19. 2002, which
purported to be an agreement for [Mericle] to pay a
broker's fee of $997,600 to [Powell]. In fact, however, a large
portion of the money was paid to defendants Ivlichael T.
Conahan and Mark A. Ciavarella, Jr."
The indictment further charged that:
• When Western PA Child Care opened in Butler
County, Pa., in 2005, Powell made a $1 million
payment to Conahan and Ciavarella, which also was
arranged as a "broker's fee."
• A $150,000 payment was made to the judges when
an addition was built at PA Child Care in Luzerne
County in 2006.
• After the juvenile centers were built, Conahan and
Ciavarella continued to demand money from Powell.
The judges allegedly received hundreds of thousands
of dollars in additional payments "for their past and
anticipated future official actions."
'With regard to the placement of juveniles, the indictment
said:
• Conal1an entered into agreements guaranteeing the
placement of juvenile ofFenders in PA Child Care and
Western PA Child Care. and Ciavarella took necessary
steps to ensure that the guarantees were met.
• Accused juvenile offenders were ordered detained by
Ciavarella even when juvenile probation officers did
not recommend detention and even when detention
was unreasonable and unwarranted.

• Ciavarella and others "operating at his behest" exerted
pressure on staff of the Court of Common Pleas to
recommend detention of juvenile offenders. On some
occasions, probation officers were pressured to
change recommendations of release to
recommendations of detention.
• Ciavarella adopted procedures in juvenile court
which resulted in juveniles appearing without counsel
and without creation of a normal court record. These
procedures, in addition to violating the juveniles'
rights, created the potential for increased numbers of
juveniles to be sent to the detention facilities ofPA
Child Care and Western PA Child Care.

Ciavarella's lawyer announced to the media that his client
would go to trial.
These are the men - Ciavarella and Conahan - who are
directly responsible for the failure of the juvenile justice
system in Luzerne County.
The record of their conduct was being drawn together in
criminal charges, the work of the Special Master and Judge
Platt's evidentiary revie'w of the defamation case involving
Thomas Joseph and the Citizens' Voice as the Interbranch
Commission on Juvenile Justice was forming during the late
summer and early fall of 2009.

On June 9, 2009, the u.s. Attorney for the Middle District
of Pennsylvania charged Robert J. Powell with failing to
report a felony to federal authorities and with being an
accessory after the fact to a tax conspiracy. Powell agreed to
plead guilty, to forfeit his interest in a 56-foot yacht, the
"Reel Justice," to forfeit a 1981 Sabreliner 65 corporate jet,
and to cooperate with federal authorities. It was disclosed
that he had worn a wire to record conversations with
Ciavarella and Conahan which helped build the case
against the judges. Powell is continuing to cooperate in
an expanded federal probe that now includes a focus on
case fixing.

It is against this background that the Interbranch

Commission on Juvenile Justice began holding public
hearings and receiving evidence on October 14,2009.
Given the magnitude of the charges against them, the
commission had no realistic expectation that Conahan or
Ciavarella would cooperate with its investigation. Both men
declined, through their attorneys, to testify before the
commission.
The mandate of the commission is to probe not only the
activities of Conahan and Ciavarella but to look beyond
them at the conduct of others in the juvenile justice system
and to make recommendations, in view of their actions or
failures, that will ensure an honest and properly functioning
court system in the future. These other individuals have not
been charged with crimes or misconduct. But by omission,
inaction, silence, inadvertence, ignorance, even
unawareness, many contributed to the failures that caused
potentially thousands of juveniles to be denied basic
constitutional rights in delinquency proceedings.

Powell has sold his interest in the juvenile facilities to his
former partner, Gregory Zappala, son of retired
Pennsylvania ChiefJustice Stephen A. Zappala. Gregory
Zappala has not been accused of wrongdoing. Powell
entered his guilty plea on July 1. He has not been sentenced.
On August 12, 2009, Robert Mericle was charged 'with
concealing from federal investigators his knowledge that
Conahan and Ciavarella were engaged in a conspiracy to
defraud the government of federal taxes on income related
to payoffs. Mericle signed a plea agreement and is
cooperating in the continuing investigation. As part of his
plea agreement, Mericle contributed $2,150,000 to fund
"programs for the health, safety and general welfare of the
children of Luzerne County." The money is to be dispersed
under supervision of the federal court.
In yet another surprise development, Conahan on April 29,
2010, agreed to plead guilty to a charge of racketeering. He
entered into a plea agreement, but his sentence was left to
be determined by a judge at a future time. Nor were other
details made public - particularly whether Conahan was
cooperating with the government's corruption
investigation.
In agreeing to once again plead guilty, Conahan did a solo
act. Ciavarella did not join him at the courthouse.
19

III. PROCEEDINGS OF THE INTERBRANCH COMMISSION
their acts which were against the law, dearly they
are victims.

1be task of the Interbranch Commission on Juvenile Justice
was to investigate the failure of the juvenile justice system
in Luzerne County, to restore public confidence in the
administration of justice and to prevent a recurrence
of such a failure in Luzerne County or elsewhere in
the Commonwealth.
The commission held 11 days of public hearings in
Harrisburg and Wilkes-Barre between October 2009 and
April 2010 and took testimony from more than 60
witnesses. The witnesses included individuals involved in
the juvenile justice system, and those impacted by it, at
every level. Many lived and worked in Luzerne County. The
commission heard from the county president judge, local
prosecutors, public defenders, probation department
officials, juveniles, parents, county commissioners and
others with first-hand perspectives on the breakdown in the
COW1ty's juvenile court. Other witnesses presented statewide
or national perspectives on juvenile justice issues and best
practices in juvenj}e courts. The commission's schedule did
noL allow time for all who wished to testify to be heard.
Many individuals who did not testify at public hearings
instead provided written or verbal information to aid the
commission in its work.
Transcripts of all the commission's hearings and other
information, including standards for prosecutors and
defense lawyers in juvenile cases, and the victim advocate's
report, are available on the Web site of Pennsylvania's
Unified Judicial System at: http;//wv.r\...,.pacourts.us/Links/
Public/InterbranchCommissiollJuvenileJustice.htm

"Employees of Pennsylvania Child Care have approached
me and have said that in their own neighborhoods they are
treated as somewhat like pariah because tl1e people in their
neighborhoods believe that they must have known about it
or they must have been on the take themselves.
"And the community at large in my opinion has been
victimized by this. The impact on citizens, again, that I've
heard from by mail and even bye-mail have indicated to me
that they have felt victimized by it.
"So, again, the situation is a lot broader than just Simply
talking about the children and the families. We need to
broaden the scope of what is meant by victimization.
Now, what is there to do about it?"
The commission heard from young people who, as juvenile
defendants, appeared before Mark Ciavarella and were
traumatized by the experience. Parents of juvenile
defendants told of the impact of having their children sent
arbitrarily and unexpectedly into detention. By contrast, the
commission heard accounts of victims of juvenile crimes,
and the bitterness and frustration those individuals felt at
records being expunged and adjudications being vacated
for youtl1s who had committed crimes against them.
Beyond individual victims, the commission heard
testimony of a more abstract class of victin1 - the collective
citizens of Luzerne County who have felt the demoralizing
impact of the judicial scandal on their community.

The Victims
Many people have been harmed by the corruption wrought
by former judges Ciavarella and Conahan. The impact
of the "kids for cash" scandal radiates far beyond the
juveniles directly touched by Ciavarella's improper
courtroom practices.

Jacqueline Musto Carroll, the Luzerne County district
attorney, spoke of the embarrassment the scandal has
created for the people who live in the county.
"Do you think I like going across the state and having
people say Luzerne County and laughing at us and thinking
that we're all rotten people and that we just stood by while
this happened?" Carroll asked. "That's so unfair, because
we're not. And we're good people. And we come from coal
miners, and we come from war veterans. It's upsetting. It
really is."

When Judge Arthur E. Grim, the special master, testified
before the Interbranch Commission on Juvenile Justice he
spoke of a wide range ofvictims affected by the scandal.
"It y,'ould be presumptuous of me to describe the full impact

that these acts had on the victims," Judge Grim said. "And
when I talk about the victims my definition of victim is a lot
broader than simply the young people that appeared in this
[Ciavarella's] court.

The Victim Advocate
Carol L. Lavery, Victim Advocate of the Commonwealth of
Pennsylvania, told the commission: "Victims include all of
the people living in Luzerne County, who have learned to
dread the daily news reports of investigations, arrests,
indictments, and graft. Residents who are characterized as

"Yes, they were victims of a system run amuck. Their
families were victims. The original people who may very
well have been the object of their delinquent acts or
20

in seeking justice in the juvenile justice system now seems
to have been in vain," Lavery testified. "... they find the fact
that the cases are being vacated and expunged as
incomprehensible.

accepting if not embracing that greed. Communities that
are described as backward, with the ever present buzz word
'culture' defined to mean corrupt, pitiless, and powerless."
Lavery characterized the broad-based community harm
caused by Ciavarella as so encompassing as to amount to an
"incident of mass violence."

"One mother spoke about her child who was severely beaten
during an attack at school by a group of juveniles who had
notified other students ahead of time to come and watch the
assault. The mother felt the juveniles did not receive a harsh
enough sentence.

The central focus of Lavery's testimony to the commission,
however, related to "original victims" of juvenile crimes.
Many of these individuals, Lavery said, were distressed that
the cases of perpetrators of crimes against them were being
dismissed and the records expunged.

"For their cases to be expunged she [the mother] said, what
does that say to my child and every other child that is
assaulted or bullied? I hope someone takes into
consideration the hurt, the fear, the pain my child had to
endure at the hands of these juveniles that are very, very
troubled juveniles."

In the publicity arising from the "kids for cash" scandal, the
victims of juvenile crimes have been largely overlooked.
Lavery, who served as a spokesperson for this group,
stressed that this oversight - perhaps a sense of getting lost
in the shuffle - has been a source of bitterness and
frustration for many crime victims. Lavery's testimony
underscored a key point: The fact that injustices were done
to juvenile defendants by a rogue judge does not negate the
reality that in many instances those same young people
committed delinquent acts, and often admitted doing so.

Lavery said that crime victims who are owed restitution
believe it particularly unfair that they will not be
compensated for losses resulting from juvenile crimes.
"Many of the victims who I -- who I heard from talked
about not having received their restitution, and many, many
of them were very angry about that," Lavery testified. "!vlany
victims talked also about their frustration over the loss of
not only restitution, but personal and irreplaceable items of
sentimental value.

Victims of Juvenile Crimes
Lavery cited several illustrations of "original victims"
who felt, despite the judicial corruption scandal, that the
juvenile justice system had worked effectively in their
cases and now the system had derailed by wiping out
appropriate adjudications.

"1hey talked of burglaries of family heirlooms, the
grandparents' jewelry, of coin collections that were never
recovered. 111ey spoke of personal items saved to pass along
to their own children, war medals and work and retirement
mementos destroyed in burglaries and in arsons. And [or
some victims the lack of any recognition or remorse or
apology from the juvenile has increased the harm once
these cases have been vacated and expunged.

One case involved an assault by one school student on
another. 'Tbe assailant was adjudicated by Ciavarella, placed
on probation and ordered to stay away from the victim. 'Tbe
victim's parents thought the system had worked, and a
record of the attacker's "violent nature had been made. But
when the case was vacated and the record expunged, the
stay-away order was no longer in effect. There was no
record to look back to in the event of a future attack by the
violence-prone student. The parents were concerned for
their child's safety.

"They see the system as failing to help the juvenile
understand or take responsibility for the harm since that
apology was never forthcoming."

Juveniles and Parents
'1 he commission also heard testimony from "juvenile
victims" - young people who appeared in court before
Ciavarella - and from their parents.

Another case involved a woman who had been violently
assaulted by a group ofjl1veniles. The woman's son wanted
to retaliate. 'The mother persuaded her son that the way to
respond was through the courts. The attackers were ruled
delinquent and placed in out-of-home facilities. A record
of their offenses was created. The mother believed the
system had worked. But when the adjudications were
vacated and the records expunged, Lavery said, the mother
did not know what to tell her son. She lost confidence in the
justice system.

A 19-year-old youth identified as D.G. and his mother,
M.G., a teacher, told of an incident in which D.G. was
charged with throwing rocks on a highway when he was 12years old. The mother contended that an older boy had
thrown the rocks, and her son was innocent. Even so, she
testified, a lawyer hired by the family advised her son to
admit the charge, and the boy agreed to do so.

"To each of these parents, their efforts to do the right thing
21

The hearing before Ciavarella went quickly. A.A. testified
that Ciavarella flipped through a stack of papers and told
her she had no respect for authority. She said he gave her no
chance to speak - even to admit to the charges. "And he just
told me to go sit down, and ...they put the shackles on me."

In court, the mother testified, Ciavarella leafed through a
folder on D.G.'s case and spotted the fact that D.G. had
received a commendation from former Governor Tom
Ridge for attaining a top award as a Cub Scout. "And his
words were something like, well, Mr. Big Shot Boy Scout.
So you have a commendation from Governor Ridge. Well,
Governor Ridge is now head of Homeland Security. Perhaps
I should call him and tell him we have a terrorist loose on
the streets of Luzerne County. And he ordered that my son
be taken away. So they shackled my son and handcuffed
him and took him off to the side."

A.A. said she was sent to PA Child Care where she
remained for two months. 'While there, a court-ordered
psychological evaluation was done by Dr. Frank Vita, the
brother-in-law of Conahan.
From PA Child Care, she was sent to Adelphoi Village, a
residential facility near Pittsburgh, where she remained for
six months.

D.G. was sent to Camp Adams for 35 days. After he had
been there a few days, his mother said she received a call
from her son's pediatrician's office. Ihe residential facility
had called the pediatrician's office to say D.G. was having
difficulty breathing. Did he have any allergies?

A.A. said her father consulted a lawyer to see ifher case
could be appealed. "They said it would take too long, and it
would cost some crazy amount of money to do it. And it -my time would run out before I -- before I would get
anything done with the appeals."

"I couldn't find out what was wrong 'with him, and I was -I was really uptight," the mother testified. "... I called
Sandra Brulo [chief juvenile probation officer]. And I told
her what the story was, and I asked if I could speak to my
son, and she told me absolutely not.

While in placement, A.A. said she had to keep up with
school work largely through self-study because the
educational provisions in the facilities were inadequate for
her grade level.

"And I said to her, he's having a breathing problem. He has
allergies. I need to speak with him. Nope, can't talk to your
son. At which point I said to her, he has rights. He has to be
allowed to talk to me. And she said to me, he has no rights.
He gave them up when he decided to be a criminal."

After her release, she was taken before Ciavarella. A.A.
testified that the judge told her she had "made progress" and
he warned her he didn't want to see her back in court.

Barry H. Dyller, a lawyer who accompanied D.G. and M.G.
during their testimony, made an observation about the
prior lawyer who advised D.G. to plead guilty even though
he claimed to be innocent. Having practiced before
Ciavarella, Dyller said, "I can say that that was not crazy
advice. Because the alternative... would more likely have
meant that he would have been placed for a much longer
period of time. So while people say, well, you pled guilty,
in that courtroom there weren't a lot of alternatives."

She said she returned to school, made it back onto the
Honor Roll and rejoined her prior extracurricular school
activities. She is currently attending Bloomsburg University.
She plans to go to 1m", school. She said she wants to do work
as a lawyer to help protect the rights of children.
'Thirteen-year-old M., whose parents were involved in a
bitter divorce and custody battle, was charged in December
2004 with simple assault and harassment for pushing his
mother's boyfriend and throwing a piece of steak at him.

Another witness before the commission was A.A. who was
arrested for gesturing at a police officer with her middle
finger after the officer had intervened in a custody dispute
involving her parents and her sister.

When M. went before Ciavarella for trial, a lawyer
representing the youth and his father contended that the
incident stemmed from family tensions in a custody
dispute. Ciavarella was unmoved. After a short proceeding
at which M.'s mother and her boyfriend testified, Ciavarella
ruled 1\'1. delinquent and ordered him placed at PA Child
Care. The youth was handcuffed, shackled and taken into
custody. He remained in placement for 48 days.

Prior to the incident, A.A. testified, she had never been
arrested. At 16, she said, "I never even had detention in
school. I was on the Honor Roll. I was a Girl Scout. I was a
member of the Y!vICA. I was in Bible school. I was in every
club, ecology, newspaper, year book, dance, from middle
school to high school."

M.'s father, identified as Mr. K. before the commission,
testified that M. had never previously been in trouble. 'Ihe
father said neither he nor his lav,'Yer expected the youth to
be "locked up." 'l11e tather said he thought M. might be

At the Juvenile Probation Department, she said, "They told
me I was going to have to go to court, and that I really
didn't need a lav,ryer because it wasn't really a big deal."
22

placed on probation for a short time. After the adjudication,
Mr. K. made extensive efforts to gain his son's freedom.
"I contacted County Commissioners, state representatives,
Governor's Office, Congressmen, help line, juvenile justice
organizations, Children and Youth, just to name a few," Mr.
K. testified - all to no effect. Worse, he said, Sandra Brulo,
chief county probation officer, recommended that M. be
kept in placement much longer: for one year at a Colorado
Boy's Ranch followed by placement at Glen Mills School in
Pennsylvania until he was 18 or 21 years old.

Ms. J. was sent to the residential facility Camp Adams
where she remained for three months. She said she tried to
keep up with schoolwork, but found it difficult because the
quality of teaching at the facility was poor.
After her release, Ms. J. was placed on probation for three
months. She returned to high school and caught up on her
studies. But she said she lost friends and was frequently
humiliated by being summoned from class to be searched
for drugs. She now is a college student with plans to go to
law school.

At that point, Mr. K. said, he went to the media. "[The
Wilkes-Barre] Times Leader published a story describing
our situation. Five days after the article appeared ... 1'.1. and
I again appeared in court. .. Judge Ciavarella ordered that M.
be released from PA Child Care and placed on probation for
approximately six months."

Ms. J. said her encounter with Mark Ciavarella and his
singular style of juvenile justice has left her with "a deep
mistrust of the American legal system."
"Zero-tolerance is what allowed this to happen," she
testified. "If a judge applies the same sentence to every case
brought before him, then what is the point of a trial or a
judge at am"

Mr. K. testified that he ran up heavy expenses to win his
son's release, including $590 in fees for required postrelease counseling. He said his son suffered depression
while in placement and afterward.

Fear and Intimidation
During its public heari.ngs, the Interbranch Commission on
Juvenile Justice heard repeated testimony in which
witnesses described a climate of fear and intimidation,
reprisal and retribution in the Luzerne County Courthouse
during time when Michael Conahan and Mark Ciavarella
were the president judges. It is clear that this atmosphere
fostered the breakdown of the juvenile justice system. Both
men were autocratic. They did not rule by consensus. They
did not take kindly to opposition.

"At the present time, M. has no faith or trust in police or the
judicial system," Mr. K. testified. 'Tve tried unsuccessfully
to explain to him that he was a victim of judicial injustice,
and that the judicial system can work.. .I've not been
very successful."
Ms. J. was in the 11th grade at a suburban high school in
Luzerne County when she was arrested in 2006 for
possession of drug paraphernalia - a lighter and a pipe
which, she said, belonged to a friend.

Conahan was president judge for five years ti·om January
2002 through the end of 2006. He retired in 2007 at age 54
to become a senior judge. Ciavarella became president judge
in January 2007 and held the position until January 2009
when he was relieved of his duties after federal charges were
filed against him.

"I had always been a good student," Ms. J. testified to the
commission. "I had never been in trouble at school, let
alone in trouble with the law."
She appeared without a lawyer before Ciavarella in January
2007. She said no one asked her if she understood that she
had a right to a lawyer.

'Ine successor to Ciavarella was Chester B. Muroski who
took on the role of president judge in Luzerne County on
January 3D, 2009, at a time when the courthouse seemed
almost in meltdown. It was the height of the scandal created
by the corruption charges against Ciavarella and Conahan.
Judge Muraski has been widely praised for his work in
bringing order to the chaotic situation he inherited and
instituting reforms.

"1he court officer read the charges and asked me how I
intended to plead," Ms. J. testified. "I thought my only
option was to plead guilty, so that is exactly what I did. No
one asked me whether I understood my right to contest the
charges, whether I understood the consequences of my
admission, or whether I had discussed my admission with
my parents or lawyer.

Judge Muraski is a former Luzerne County district attorney
and was, when he became preSident judge, the most senior
member of the Common Pleas Court in the county. In the
past he had personally opposed the Conahan-Ciavarella
power structure, and he had paid a price for it.

"Ciavarella declared that I would be sent away, but he didn't
say where or for how long. I 'Nas immediately handcuffed
and escorted out of the courtroom to a small waiting room
by a sheriff. I did not even have a chance to say goodbye to
my father."
23

A judge since 1982, he had presided over the Juvenile
Court, the Orphans Court and the Family Court in Luzerne
County for many years. Within the juvenile court, there are
two divisions, the delinquency division, where criminal
offenses committed by minors are adjudicated, and the
dependency division, where cases of abused and neglected
children are supervised.
Judge Muraski testified that he handled both delinquency
and dependency divisions in juvenile court until 1996 when
Ciavarella joined the bench. At that point, the delinquency
division was transferred to CiavareUa.

The Juvenile: "I don't recall, sir."
The Court: "You don't recall? You don't remember me
saying if you did anything to these teachers that I would
send you away? You don't remember those words?"
'nle Juvenile: "No, sir."
The Court: "Were you sleeping?'
The Juvenile: "No, sir."
The Court: "You can't remember that?"

Judge Muraski said Ciavarella took a hard line on juvenile
crime which was well-received in the community,
particularly by school administrators, teachers and police.
"At the beginning of every school year [Ciavarella] spoke at
assemblies held in most school districts within Luzerne
County, and in effect, he promised institutional placement
for school-related infractions. He was true to his word and
became even more popular when he followed through with
placements, sometimes for minimal offenses."
Judge Murorski read a Ivlay 2007 transcript of a case in
which a 10th grade high school student had been charged
with harassing a school official.
The Court: "How do you plead?'
The Juvenile: "Guilty."
'[11e Court: "Based upon her admission, ru adjudicate her
delinquent. What makes you think you have a right to do
this kind of crap?"
The JuveniJe: "1 don't know, sir."
Ciavarella asked if the student recalled him visiting her
school: "You heard me speak?"
The Juvenile: "Yes."
1he Court: "Told you what type of conduct I expected
from children in that school relative to the juvenile justice
system?"

The Juvenile: "No, sir."
The Court: "It's going to come back to you because I didn't
go to that school, 1 didn't walk arotmd in that school, and I
didn't speak to that student body just to scare you, just to
blow smoke, just to make you think I would do that when
I wouldn't. I'm a man of my word. You're gone. Send her
up to FACT. Let her stay there tmtH she figures it out.
Thank you."
JuveniJe's Mother: "No. That's not fair. That's not what the
officer said. That's not what he said."
Under Ciavarella's zero-tolerance policy, Luzerne County's
juvenile placement costs rose to unprecedented heights notably after PA Child Care opened in 2003. In 2007, one of
every four juveniles ruled delinquent in Luzerne County 25.8 percent - were being sent to out-of-home placements.
That was more than double the statewide average.
-The soaring costs of those placements had a direct and
negative eftect on the dependency division of juvenile court
where Muroski continued to oversee cases of abused and
neglected children. Children in dependency cases often are
removed from their families by court order and placed in
temporary out-of-home settings such as foster homes. 'l11e
primary goal in most dependency cases is to reunite
children with their families after providing services to
parents to alleviate or correct problems that caused abuse or
neglect.

'lhe Juvenile: "No, sir."

"Unfortunately," Judge Muraski testified, "once the juvenile
center [PA Child Care] opened, slowly but surely the
social services to these [dependent] children and their
families became difficult to obtain. -There were waiting
lists for parenting classes, family assessments, drug and
alcohol evaluations and treatment, as well as other
specialized services.

The Court: "What did I say would happen if you acted in an
unacceptable way toward teachers and/or administrators?"

"Parents had to wait sometimes months to be given these
services. This resulted in a child being in placement longer

The Juvenile: "Yes."
The Court: "Is this acceptable?"

After taking office, Petrilla proceeded to di.smiss the
employee. She said the same individual then was rehired by
the court, specifically by county court administrator's office
to be "specialty court administntor." The Luzerne County
court administrator at the time was Conahan's cousin,
William Sharkey.

than necessary when the child hadn't done anything wrong
while the parents waited to complete services and the
County had to pay to keep the children in placement.
"When I complained I was told off the record Dependency
Court got less funding because Delinquency Court
placements had consumed much of the entire Juvenile
Court delinquency and dependency budget."

Petrilla testified that the Luzerne County courts tmder
Conahan and Ciavarella spent money, let contracts and
hired personnel without regard to county rules or policies.
In the process, she said, the courts ran up huge deficits for
the county.

Judge Muraski testified that after making unsuccessful
attempts to obtain funds for the dependency division he
wrote a letter to the Luzerne County Commissioners on
June 15,2005, threatening to use his contempt powers to
ensure that services were made available to dependent
children and their families. That provoked a quick response
but not the one he was looking for:

She cited as an example the contract of Dr. Frank Vita,
Conahan's brother-in-law. Vita held a non-competitive
court contract to conduct psychological evaluations on
youths charged with criminal offenses. Ciavarella referred
juvenile defendants to Vita for the evaluations. Ihe youths
often were placed in detention while the evaluations
were conducted.

"A few days later [President Judge] Conahan issued an
order transferring me effective the first week in September,
2005, to Criminal Court. .. There was very little doubt in my
mind that Conahan expected me to retire because I had not
handled a criminal jury trial since 1981 when I was the
District Attorney."

Petrilla said a county policy that required advertising for
an "RFP" or a request for proposals was not followed on
Vita's contract.

Luzerne County Commissioner Maryanne Petrilla
described a run-in with Conahan, then a senior judge,
around the New Year's holiday of 2008. Petrilla, a former
county controller, had been elected a commissioner
and was planning to institute a program of reforms in
county government.

"They just issued the contract, and there was no RFP put
out. .. And it's just indicative of the philosophy that they had
that they did not have to abide by the other county policies
that other departments had to abide by... they just did their
own things and sent the bills to the county to be paid."

As she prepared to take office, Petrilla made it known that
she intended to fire a high-level county employee, the chief
clerk-county manager.

In 2008, the county faced a financial crisis. The county
commissioners decided to impose a major spending cut
across all departments of government, including the courts.

"And I - I recall New Year's weekend of2008 when I was
inundated with probably anywhere from 40 to 60 phone
calls from friends ... and they had received calls from Judge
Conahan and told me that, you know, Judge Conahan had
really wanted me to reconsider my replacing the chief clerk,
county manager. And I - I told everyone that I just felt that
that was something that I could not do."

"[President] Judge Ciavarella came to the budget hearings,
and it was what I would call a pretty tumultuous encounter
with Judge Ciavarella," Petrilla testified. "He said that he
needs the money to run his courts. I can't tell him how to
run his courts. And he will do his budget, and we will fund
his budget.
"And I said, well, quite frankly, Judge, we can't. We don't
have the resources to fund your budget. And he said, well,
then I'll sue you. And I said, well, Judge, if that's what you
have to do, that's what yOLl have to do. And that's what
he did."

Petrilla testified that Conahan eventually telephoned her
directly.
"And the conversation was not what I would call a friendly
phone call. He said that I could not replace [the chief clerkcounty manager] ... And his final words to me were,
Maryanne, if you do this, you will be finished. And I said,
well, with all due respect, Judge, I - you know, I'm not going
to tell you how to run your courts, and I would really ask
that you respect this decision because I think it's the best
decision going forward for our administration."

Even Richard J. Gold, deputy secretary of the Pennsylvania
Department of Public Welfare, found himself reprimanded
for questioning Judge Mark Ciavarella's inordinately high
juvenile placement rates - and the high costs that went
with them.

2S

28 percent, equal to $1.2 million - in its first 10 months
of operation.

Gold heads the Welfare Department's Office of Children,
Youth and Families which administers the child welfare
system throughout Pennsylvania. lile office also provides
approximately 80 percent of funding for the child welfare
system, using state and federal revenues.

Gold said those discoveries raised such concern that the
department listed PA Child Care as an immediate priority
for further audit, and the department asked the Luzerne
County commissioners to delay a vote on the long term
lease until the audit was completed. 1he request for delay
was disregarded.

Among its functions, the Office of Children, Youth and
Families licenses and inspects juvenile detention facilities,
and arranges audits to ensure their costs of those facilities
are reasonable.

"The county proceeded with a vote prior to the audit
conclusion, and in November, 2004, the county approved a
20 year lease with Pennsylvania Child Care," Gold testified.
The aggregate cost of the lease was $58 million.
"In December, 2004 Pennsylvania Child Care filed a court
action against tlle Department and then Luzerne County
controller, Steve Flood contending that pursuant to a
subpoena issued by Controller Flood the Department was
going to release, quote, trade secrets, end of quote, of
Pennsylvania Child Care.

In testimony before the Interbranch Commission on
Juvenile Justice, Gold outlined a struggle that went on for
years between his office and Luzerne County over juvenile
detention matters.
"Specifically dealing with Luzerne County, in October, 2002,
Judge Conahan publicly announced that Luzerne County
judges would stop sending youth to the Luzerne County
detention center, which was known as the River Street
Center, at the end of the year because the building was,
quote, too run down, end of quote," Gold testified.

"As part of the lawsuit Pennsylvania Child Care sought an
emergency injunction barring the release by the
Department of any of the alleged trade secrets and also
sought to seal the lawsuit.

"At that time [Office of Children, Youth and Families]
had fully licensed the facility as we determined that it
met all state requirements for the operation of a safe and
secure facility."

"Judge Conahan granted Pennsylvania Child Care's
motions. The immediate impact ofJudge Conahan's rulings
was that the Department had to place the audit of the
Pennsylvania Child Care facility in abeyance because the
potential ruling significantly limited the audit scope and
also precluded the Department from discussing the
report findings and recommendations ''lith Luzerne
County officials."

Gold said his office conducted a review of the 22-bed River
Street Center and found it "safe and satisfactory to house
juveniles." As a result, the department announced it would
renew the facility's license. Gold said that Ciavarella sharply
criticized the license renewal decision. Ihen Conahan
overrode the state's decision.
"In December, 2002, Judge Ciavarella's criticism was
followed by Judge Conahan's official action to remove all
funding from the county budget for the River Street Center
and his stated intention of closing the facility," Gold
testified. "lhereafter, the court returned the River Street
Center's license to the Department closing the facility."
rlhe state accepted the license. When the new 48-bed PA
Child Care facility opened in February 2003, the Welfare
Department granted it a license.

Gold testified that Conahan's order was reversed by the
Pennsylvania Superior Court in November 2005. lilat
allowed the audit of PA Child Care to proceed.
The final audit was not released until January 2008. It
showed that Luzerne County payments to PA Child Care
exceeded reimbursable costs by approximately $2 million
per year.
rD1e audit found the costs to be so excessive, Gold testified,
"that the county could have built three juvenile detention
centers for the cost of what it paid La lease Pennsylvania
Child Care facility." [Luzerne County eventually
renegotiated its contract with PA Child Care.]

Gold testiJled that the departmenL expected PA Child Care
to be a temporary facility, used for two to four years while
Luzerne County built a new detention center on countyowned land.
Within a year, however, it became dear that county officials
were thinking of issuing a long term lease to PA Child Care.
It also became clear through a Welfare Department audit
that PA Child Care was malting unusually large profits -

Gold said a separate audit of Western PA Child Care also
found patterns of unreasonable and unallowable costs.
A third audit of payments to Dr. Frank Vita for court-

26

Center was a county facility, not a court facility, Urban said,
and its employees thus should have been answerable to the
county commissioners.

ordered psychological evaluations of juvenile defendants,
"found questionable costs in the amount of $836,636."
Gold testified that an indication that something was "out of
sync" in Luzerne County was the fact that the juvenile
detention numbers were exceptionally high - far above
statewide averages.

Urban also questioned the authority of the Luzerne County
courts to turn in the license of the county detention center
to the state.
"I believe since the Commissioners under the County Code
have the authority to operate the detention center we should
have been the one that turned in the license and not the -not the courts," he testified. "Also I think that the Office of
Children and Youth and Families, which is a state run
agency, should not have accepted that license from the
courts, that they should have referred that license back to
the County Commissioners. And only after a formal vote of
the County Commissioners to close the detention center
should that detention center have been closed.

In a visit to Luzerne County in the summer of2007 where
he met with county officials, Gold commented on the high
numbers, telling those in the group, "there's something
wrong here in your numbers."
Ciavarella was at that meeting. Gold said the judge "wasn't
pleased at all with being questioned as to the practices of
the jurisdiction."
After the meeting, Gold testified, "a complaint was made
about me" and he received "a formal reprimand for
questioning how out of sync this county was to all the other
counties of Pennsylvania."

"And that is not the way things ran in the county. The judge
said, we're not sending anybody there, The other two
Commissioners then voted for a budget that defunded
positions of the childcare workers... And then they closed
the facility, and the county was then forced to use the
detention center that Mr. Powell and Zappala had built at
the cost of about $100 per day -- extra per day per bed that
was costing us in our own facility."

Stephen Urban is a Luzerne County commissioner who
was in office when the River Sh'eet Center dosed and PA
Child Care opened.
In testimony before the commission, Urban said he
opposed dosing the county-owned center and also opposed
the immense costs ofleasing PA Child Care. He said
repairs and improvements were needed at the River Street
Center, but the work could have been done for $2 million
to $4 million.

The Role of the Judicial Conduct Board

"lhe $58 million lease for PA Child Care was approved by
former Luzerne County Commissioners Todd Vonderheid
and Greg Skrepenak on October 20, 2004. Urban was the
only No vote on the three-member commission. [Skrepenak
reSigned his position as a commissioner in December 2009
shortly before the u.s. Attorney's Office charged him with
accepting $5,000 to assist a developer gain tax incentive
financing for a project. Skrepenak pleaded guilty on January
26, 2010, and is cooperating "nth investigators in the
Luzerne County corruption probe.]
Although the county commissioners were generally
compliant in granting the financial requests of Conahan
and Ciavarella, Urban testified that the courts assumed and
co-opted pm-vers that properly belonged to the county
commissioners.

On September 28, 2006, an unsigned eight-page letter of
complaint arrived at the office of the Pennsylvania Judicial
Conduct Board in Harrisburg listing 33 accusations of
purported "glaring violations of ethics which are occurring
in the Luzerne County Courthouse."
TIle subject of the complaint was President Judge Michael
1'. Conahan. Mark A. Ciavarella, Conahan's friend and
colleague, was nan1ed at several points in the complaint
as well.
The anonymous complaint was addressed to Joseph A.
Massa, Jr., chief counsel of the Judicial Conduct Board.
The document was organized in three sections, bearing
these headings:
• "Judge Conahan has used his judicial authority and
power of appointment to benefit his family and
friends and to contain and destroy his detractors."
• "Judge Conahan also falsely creates new titles for
Courthouse employees in order to appear to comply
with Supreme Court Directives, even though the
Employee's functions remain the same. He also
engages in political activities."

As an example, Urban cited the fact that employees of the
River Street detention facility were court employees, under
the control of the preSident judge, when, in his view, they
should have been county employees. The River Street
27

might seem that such a detail-laden complaint would
immediately have triggered an investigation.

• "He routinely hears matters presented by Attorneys
with whom he has close personal and longstanding
business and friendships and refuses to recuse
himself In fact, it is his practice to direct William
Sharkey [then the Luzerne County court
administrator, and Conahan's cousin] to switch cases,
which are assigned to other Judges when the litigants
or the Attorneys are his friends."

It did not.

The conduct board conducted no investigation into any of
the allegations. No misconduct charges were filed against
Conahan or Ciavarella based on allegations in the
complaint. No disciplinary action was taken against either
judge. In fact, no public disciplinary action was ever taken
in any matter against Conahan or Ciavarella.

Under each heading were multiple examples providing
names, dates, docket numbers and other details that
appeared to document and support the statements in the
headings. Among the speCifics:

Why the board did not launch an investigation into a
complaint containing such serious allegations involving two
Luzerne County judges is a matter that caused concern and
raised many questions for the Interbranch Commission on
Juvenile Justice.

Lawyers - identified by name - who worked as law clerks for
Conahan and Ciavarella were described as practicing before
the two judges, in violation of Supreme Court rules.

The Judicial Conduct Board operates under constitutionally
mandated confidentiality rules which the board applies
extensively to its operations. Complaints and investigations
are confidential except when the board files formal
misconduct charges against a judge.

Conahan was described as ruling on appeals from decisions
made by his sister, a court master, without disclosing the
relationship to parties in litigation. lne sister was identified
by name.
Conahan's closest friends were described as Ciavarella and
lav-ryer Robert Powell. The complaint said Conahan
regularly presided in civil cases in which Powell and
associates were counsel for plaintiffs, but Conahan did
not disclose his relationship with Powell to other parties
in litigation. Five cases were identified by caption and
docket number.

Attempts by ilie commission to obtain information from
the conduct board about the handling of the 2006
complaint against Conahan and to get answers to other
questions led to litigation before the Pennsylvania Supreme
Court. The litigation was followed by lengthy negotiations
between the commission and the board. In the end, the
conduct board agreed to provide information concerning its
handling of the Conahan complaint. The board also
provided nonpublic information under seal concerning
other complaints filed against Conahan and Ciavarella
throughout their judicial careers.

111e complaint said that Conahan often ordered Powell's
cases assigned to Ciavarella. Seven civil cases were listed by
caption and docket number.
"lhe complaint described a case in which Conahan allegedly
awarded a verdict of more than $800,000 to a lawyer friend
- identified by name - in a nonjury civil trial. 'lhe caption
and docket number of the case were provided.

Regarding the 2006 complaint against Conahan,
information provided by the Judicial Conduct Board
disclosed that members of the board did not learn anything
about the Conahan complaint until 7 1/2 months after it
arrived on the chief counsel's desk on September 28, 2006.

The complaint said that Conahan had been "watched" while
attending an early morning meeting with alleged crime boss
\Vi!liam D'Elia in the company of the same lavlyer who had
received the large civil trial award.

At that point, the chief counsel, Joseph Massa, informed the
board about the complaint in a detailed memorandum on
May 14, l007.Massa did not provide board members with a
copy of the complaint. His memorandum described the
complaint, discussed the allegations and provided an
analysis, Massa testified to the commission that this was his
standard practice; he did not provide the conduct board
with original complaints, but rather summarized them in
memo form for the board's review. Regarding the Conahan
complaint, Massa recommended a full investigation.
He included his May 14, 2007, memorandum in a packet of
materials that 'Nas distributed to Judicial Conduct Board
members in preparation for a June 4,2007, meeting.

The letter of complaint appeared to be the work of a
courthouse insider - a ,t\'histleblower - who was laying out a
roadmap for an investigator to follow in pursuit of a
malefactor in public office. In signing off, the letter writer
said, "I have submitted iliis information to you without
identifying myself because I fear retaliation should my
identity be revealed."
For an agency such as the Judicial Conduct Board, whose
job is to investigate and prosecute judicial misconduct, it
28

When the meeting was held, the chairman of the board.
Patrick Judge, Sr., did not participate in discussion of the
Conahan complaint. Patrick Judge is a Luzerne County
businessman. He told the commission he disqualified
himself because he had business relationships with
Conahan.

took responsibility for the fact that no follow-up action was
ever taken on the complaint after the conduct board's June
4, 2007, meeting. Asked if the complaint "had fallen
through the cracks," Massa replied: "It had."
"I hold myself accountable," he testified. "It was on my
list. .. There was nothing nefarious or in terms of a
subterfuge at all. .. I am accountable."

The Judicial Conduct Board issued a statement to the
commission on AprilS, 2010, describing Massa's memo to
the board, what occurred at the June 4 meeting and events
that followed.

Ten months after the conduct board tabled the complaint,
Massa provided a copy of the document to the U.S.
Attorney's Office. Massa said he did that - on April 3, 2008 at the request of the federal prosecutor and without
informing the members of his board.

"The focus of the [Massa] memorandum was on allegations
of nepotism, political activities, conflict of interest and of
association with individuals believed to be known
criminals," the conduct board's statement said. "Other
allegations in the complaint such as case fixing and Judge
Conahan's relationship with Judge Ciavarella were not set
forth in Chief Counsel's memorandum recommending a
[full investigation]. At the meeting an oral request was
made by Chief Counsel to table the maHer until the
October 27 meeting because of the pendency of the Lokuta
trial at which former Judge Conahan was expected to be
a witness."

In normal circumstances, the Judicial Conduct Board refers
a complaint of criminal wrongdoing to a law enforcement
agency such as a District Attorney's Office, the Attorney
General's Office or a U.S. Attorney's Office.
Why Massa did not promptly refer the Conahan complaint,
which appeared to contain allegations of case-fixing and
other potential criminal conduct, to a law enforcement
agency in keeping with that practice is unclear. At the point
when the u.s. Attorney requested a copy of the complaint in
April 2008, the investigation of Conman and Ciavarella was
in full progress.

(This was a reference to Luzerne COWlty Judge Ann H.
Lokuta who was tried on misconduct charges before the
Court ofJudicial Discipline in late 2007 and early 2008. She
was later removed from the bench. Conahan appeared as a
witness against Lokuta at her disciplinary trial. The
anonymous complaint against Conahan became public
during those disciplinary proceedings. 'The complaint has
been attributed to Lokuta, who was openly hostile to
Conahan, or to someone acting at her behest. An exception
to the Judicial Conduct Board's confidentiality rule is that a
judge who is the subject of a misconduct complaint can
waive confidentiality. Conahan, in fact, did waive
confidentiality with regard to the anonymous complaint
against him. But then, according to Massa, he changed his
mind and sought to reinstate his right to confidentiality
after criminal charges were filed against him in 2009. By
that time, it was too late. 'lbe complaint was circulating in
the media.)

Edwin L. Klett, a Judicial Conduct Board member, testified
to the commission that neither he nor other board members
saw the full, eight-page Conahan complaint until the
summer of 2009.
The Judicial Conduct Board was created by a 1993
amendment to the Pennsylvania Constitution designed to
ensure that Pennsylvania judges accused of unethical
conduct are investigated and, if necessary, prosecuted, tried
and appropriately punished if found guilty In addition to
the 12-member Judicial Conduct Board, whose role is to
investigate and prosecute judicial misconduct, the same
constitutional an1endment established an eight-member
Court of Judicial Discipline to conduct trials in judicial
misconduct cases.

The conduct board's statement regarding the Conahan
complaint continued: "The Board approved the motion to
table the discussion of the 2006 anonymous complaint until
the October 2007 meeting. The complaint was not, however,
placed on the agenda for the October 2007 meeting and
was never placed on any agenda for a Board meeting since
that time."

111e constitution imposes strict confidentiality rules on
many of the conduct board's functions. Complaints filed
with the board are to be confidential. Statements, testimony,
documents, records, other information and evidence
acquired by the board during investigations are to be
confidential. All proceedings of the conduct board are to
be confidential.

In testimony before the commission, Massa said he did not
recall asking for the Conahan matter to be tabled, but he

At the same time, there are exceptions to the confidentiality
rules. The subject of a Judicial Conduct Board complaint
29

Finally, in the most serious misconduct actions, the Judicial
Conduct Board filed formal charges in two cases. These
were the only cases that became public.

can waive confidentiality. A complaint against a judge can
become public knowledge and, at the direction of the judge
being investigated, the board can then issue a statement
confirming the investigation. In that statement, the board
can clarify procedural aspects of the proceedings or provide
the judge's response to the complaint. The Judicial Conduct
Board also can share complaints against judges with other
government agencies. If a complaint involves allegations of
criminal conduct, for example, the conduct board can refer
the complaint to a law enforcement agency.

On January 8,20]0, the Judicial Conduct Board adopted
new Internal Operating Procedures which establish written
rules for handling anonymous complaints and for referring
complaints to law enforcement agencies. Previously, there
had been no written policies governing these practices.
In its statement to the commission, the Judicial Conduct
Board said the rules were established because the handling
of the 2006 Conahan complaint demonslrated lhat the
board needed to exercise greater "oversight and
supervision" of its internal operations. The board said it
"recognized that action was necessary to assure that
complaints like the 2006 anonymous complaint, alleging
misconduct immediately and directly impacting the
administration of justice, be acted upon swiftly."

The Judicial Conduct Board has a small staff. In addition to
the chief counsel, there are two other allorneys, three
investigators and three support staff The board's
jurisdiction extends to the entire Pennsylvania judiciary of
more than 1,000 fulltime judges and approximately 200
senior judges.
The body of ethical rules that governs appellate and trial
judges is known as the Code of Judicial Conduct. Under
these rules, judges are expected to act at all times in a
manner that fosters public confidence in the integrity and
independence of the judiciary. Judges must avoid all forms
of improper behavior and the appearance of improper
behavior. Ihey must carry out their duties impartially and
diligently. 'illey must refrain from inappropriate political
activity. They must avoid conflicts of interest.

Board member Edwin Klett testified to the commission that
the Internal Operating Procedures were intended to reassert
authority of the board over its staff. Too much discretion
had been given to staft: Klett said, "And so these internal
operating procedures are intended to reclaim all of that
authority, including -- including whether or not a particular
matter is referred to another agency."
"It's not only referral to an agency, the investigation, the
preliminary inquiries, the management of slaf[ the
development of pleadings, all of that has been left to the
staff," Klett testified. "And that's why I'm trying to
emphasize that the Board, as a committee of the whole, is
pulling back all of that process."

In a mission statement in its 2008 annual report, the
Judicial Conduct Board says: "The Board and its staff
investigate every allegation made against a Pennsylvania
judge. Ibis procedure is an essential safeguard to the
integrity of, and public confidence in, the judicial process."
In 2008, the conduct board received 636 complaints against
judges - the highest number of complaints since its
inception in 1993. In the same year, the board disposed of
621 complaints - 579 of them, or 93 percent, by dismissal
after a preliminary inquiry. 'lhe high dismissal rate was
explained as the result of large numbers of complaints being
filed by unhappy litigants, particularly criminal defendants,
whose issues belonged in the appellate courts.

Under the conduct board's Internal Operating Procedures,
anonymous complaints must be logged and presented to the
board for review and approval before a file is opened or a
preliminary investigation is begun. If the source of the
complaint is known, that information is to be recorded by
the chief counsel for use in any inquiry and to advise the
complainant of the ultimate disposition of the complaint.

'lhere were 24 cases in which judges were disciplined,
though the discipline in 22 of those cases was nonpublic; it
was issued in the form of private reprimands.

The procedure governing referrals to law enforcement
agencies requires that any complaint alleging criminal
activity by a judge be brought to the board's attention
within 30 days. The chief counsel must call a special
meeting of the board by tele-conference unless a regular
meeljng is up-coming. 'TIle board is to review the complaint
and decide by majority vote whether to refer it to a law
enforcement agency. Under the same procedure, the board
is to determine whether to actively investigate any part of
the complaint that may allege ethical violations.

In ]4 cases in 2008, the conduct board issued "Letters of
Caution." These were private reprimands, warning letters of
judicial misconduct. Judges who receive Letters of Caution
are not required to sign or accept them.
The board issued eight "Letters of Counsel." These were
slightly stronger private reprimands. Judges who received
them were required to accept them.
30

among prosecutors that juvenile court was a "kiddie court,"
or a less important court than adult courts, Lupas replied:

"The Role of the District Attorney
The district attorney of Luzerne County during the period
when Michael Conahan and Mark Ciavarella controlled the
courthouse was David W. Lupas. Lupas took office in 2000
and served as the county's prosecutor through 2007.

"I don't know if it was [aJ lesser court. It may have -- there
may have been some of those attitudes. Unfortunately, 1 see
some of those -- I still see some of those attitudes today as a
judge...there are limited resources ... there, 1 guess, are
times, because oflack of resources, that it maybe didn't get
the priority maybe that it should have."

Now a judge of the Court of Common Pleas, Lupas presides
in juvenile court, having replaced Ciavarella in that role in
May 2008. Lupas has instituted reforms which include
ensuring that juveniles and their parents are properly
advised of the right to counsel. He also refuses to entertain
adjudicatory recommendations from the Juvenile Probation
Department prior to hearings, which was a regular practice
of Ciavarella's.

Lupas said he assigned specific assistant district attorneys
on his staff of20 to 25 proseclltors to juvenile court so that
individuals could specialize to some degree in the rules and
procedures there. Direct supervision of those assistants, and
all assistants, was by Lupas personally and by his first
assistant, Jacqueline Musto Carroll, who now is the Luzerne
County district attorney.

District attorneys - in fact, all prosecutors - have a unique
ethical obligation among lawyers. While private lawyers are
bound by strict duties to their clients, prosecutors have a
broader responsibility - one that extends to all citizens and
to society as a whole.

"Those attorneys [assigned to juvenile court] would be
consulted with on a periodic basis. How are things going?
Any issues, any concerns, any problems in juvenile court?
We would have periodic staff meetings with the entire staff
of Assistant District Attorneys. Again, ask whether there are
any issues or any problems or any concerns going on in
juvenile court. And, you know, we really -- 1 didn't get any
feedback that there were concerns or problems, just
everything was going well."

As explained in the Code of Professional Responsibility, the
ethical rules governing lawyer conduct in Pennsylvania: "A
prosecutor has the responsibility of a minister of justice and
not simply that of an advocate. This responsibility carries
with it specific obligations to see that the defendant is
accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence."

Lupas said Ciavarella's zero-tolerance policy was wellknown, reported in the newspapers, spoken of in the
community and discussed among school officials.

The "special responsihilities of prosecutors" under the
Code of Professional Responsibility include a requirement
that prosecutors:

"Again, it was known that there were a lot of placements.
1hat was made known. But, you know, the other concerns
that I knmv have been raised about waiver of counsel and
things such as that were never brought to my attention by
any of the assistants.

"Make reasonable efforts to assure that the accused has been
advised of the right to, and the procedure for, obtaining
counsel and has been given reasonable opportunity to
obtain counsel."
In his testimony to the commission, President Judge
Ivluroski, a former district attorney of luzerne County,
commented on the role of a judge as compared to that of a
district attorney:

"Never had any of them come to me and say, we think the
judge is engaged in criminal activity, or we think there's
something going wrong here. None of that ever occurred."
Lupas said it was not until after the "kids for cash" scandal
erupted that he became aware of a controversy involving
Ciavarella failing to properly advise juvenile defendants of
the right to counsel.

"Let me take you back to something r was asked many,
many years ago when I became a judge," I\/luroski said. "I
was asked, you know, which job did you prefer? What's
different about your jobs being DA or being a judge? And I
would say that being a DA was probably the most difficult
job because you had to be fair, and you had to win. Now, 1
only have to be fair."

"It was always my understanding and belief that there was

an assistant public defender assigned to juvenile
delinquency court and present at all proceedings that I
assumed 'would have been representing the vast majority of
these juveniles. And 1 was quite surprised when it surfaced
and came out that so many were waiving counsel."

David Lupas, in his testimony to the commission, said
juvenile court did not get a great deal of his attention when
he was district attorney. Asked if there was an attitude
31

His assistants did not bring it to his attention. His
counterpart, the public defender, did not mention it.
No private defense lawyer complained to him that the
constitutional rights of juveniles were routinely being
violated.

in various assignments. In 2005, he began covering an
assignment in juvenile court, replacing another prosecutor
who was reassigned to adult court.
Juvenile court was a busy venue. Sessions were held on
Tuesdays for adjudications and Thursdays for review
hearings. Typically, more than 20 hearings a day were
scheduled. Cases moved at a fast pace. Killino told his
superiors he thought more than one prosecutor was needed.
He said he received some back-up support.

Ifhe had received complaints from his assistants that
constitutional rights were being violated, Lupas said, he
would have taken action - but no one complained.
Lupas noted that Ciavarella used a written "colloquy" which juvenile defendants filled out with the assistance of
probalion officers before court hearings - to waive the right
to counsel.

Asked if juvenile court was considered a high priority by the
prosecutor's office, Killino replied:
"It certainly didn't appear to be No.1 on the list of things
going on to be very honest with you."

Because of the written colloquy, he said, "I believe the ADAs
probably assumed that the juveniles appearing were made
aware of their right to counsel and were waiving it. Albeit
the judge wasn't abiding by the rules by giving the on the
record colloquy, but there was this written document that
was being utilized.

The District Attorney's Office kept no records of the kinds
of dispositions that occurred in juvenile court. There was no
filing system to enable a prosecutor to review a case in the
future and look back at how well or poorly a juvenile had
advanced from the point of disposition.

"I can't speak for whether they felt that that sufficed or not.
You'd have to ask those particular people who were in that
courtroom at the time."

Killino confirmed what Lupas had said concerning waiver
of counsel. "There was an accepted practice in place with the
waivers. 'TIl at was something that the court accepted and
utilized." Killino didn't know who provided waiver forms to
juvenile defendants. The procedure normally was completed
in advance of court hearings. No one challenged it. It was
accepted by prosecutors and defense lawyers alike. Killino
observed other prosecutors accepting the procedure. He
accepted it as well.

With regard to the special duties of a prosecutor spelled out
in the Code of Professional Responsibility, Lupas said of his
assistants: "They were instructed and advised and expected
lo always abide by those professional responsibilities."
"I -- again, and a lot of what I'm doing here unfortunately is
speculating trying to put myself in the mind of those parties
who were in that courtroom," Lupas said. "But I -- I think
that was the atmosphere, that -- that it was a very strongminded judge who ran things his way. And over time that
atmosphere was created where he was -- he was going to
run things his way."

Killino said he did raise one concern 'with his superiors:
Case lists distributed in the courtroom by the Juvenile
Probation Department included handwritten notations
recommending placement facilities for some of the juveniles
on the list.

Two assistant district attorneys who were assigned to
juvenile court while iupas headed the prosecutor's office
testified before the commission. Both said it was Ciavarella's
practice to have the Juvenile Probation Department present
a written waiver form to youths who opted to appear in
courl without lawyers. 1be forms were signed prior to
court hearings. It was not Ciavarella's practice to conduct
colloquies in open courl. The assistant prosecutors did not
object because they assumed the written waiver, and the
judge's method, was acceptable.

He said Ciavarella usually had a folder of information
about each juvenHe defendant and referred to it during the
case disposition.
Asked if he was troubled by the fact that Ciavarella did not
conduct guilty plea colloquies with youth defendants as is
done in adult court, Killino replied:
"Well, again, I came into a very fast paced environment. I
observed my colleagues handle that environment in the
same way as I came to handle it. And, again, it was an
established practice by the court. And the trust factor was
there that if the court is satisfied in proceeding in that
manner that was the manner it proceeded."

Thomas J. Killino began work in the District Attorney's
Office in 2004 as a young lawyer seeking to gain trial
experience. As a newcomer to the office, he was assigned to
"shad01v" more experienced prosecutors to learn the ropes
32

 

 

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