The Legal Intelligencer by Hank Grezlak and Leo Strupczewski - June 1, 2009
Federal investigators in the Luzerne County, Pa., judicial corruption probe are said to be looking at whether two indicted former judges may have helped fix criminal cases, sources have told The Legal Intelligencer. An investigation by The Legal Intelligencer has turned up at least three criminal cases in which individuals with ties to the corruption probe or with either political or personal ties to former Judges Michael T. Conahan and Mark A. Ciavarella appeared in front of them and received relatively light sentences. In several instances, the bulk of the charges were either dismissed or nolle prossed.
While several people with knowledge of the Luzerne County Court system said aspects of the cases and their results raised questions, no one was willing to go on the record for this story, even as an anonymous source. The cases reviewed by The Legal Intelligencer involve Brian Dunn, a Wilkes-Barre Area School District board member who was indicted April 21 by federal prosecutors for allegedly taking kickbacks from contractors and teacher candidates; Louis Pagnotti III, who pleaded guilty to lying to a federal grand jury and was previously indicted for laundering drug money and was named as an unindicted co-conspirator in reputed mob boss William D'Elia's 2006 indictment; and Mary Butera, the wife of attorney Michael Butera, who sources have identified as a friend of Conahan's and who was a big contributor to Conahan's 2003 retention campaign. Sources familiar with the investigation say federal authorities have made multiple inquiries regarding Dunn's case. Multiple sources have also told The Legal Intelligencer that courthouse rumors have often held that Pagnotti's case was fixed. Conahan's attorney, Philip Gelso of Briechle & Gelso in Kingston, Pa., said he had no comment on the matter. Ciavarella's attorney, Al Flora, did not return a call seeking comment. The district attorney at the time the three cases were initially prosecuted was David Lupas, who is now a sitting Luzerne County Common Pleas Court judge. There is no indication that Lupas or his office did anything improper in their handling of the cases. Asked if he ever had any suspicions that criminal cases might have been fixed while he was district attorney, Lupas said that if federal investigators are looking at that angle, he would "fully welcome an investigation." When asked if it were possible that criminal cases could have been fixed while Conahan was on the bench, Lupas' colleague, Judge Peter Paul Olszewski Jr., responded: "I would certainly hope that federal investigators are looking at all aspects of the Luzerne County court system -- both civil and criminal."
Olszewski, the judge who oversees the criminal court, said the court administrator's office is responsible for assigning plea agreement hearings and trials to judges' calendars. The former court administrator was William Sharkey, Conahan's cousin. Sharkey pleaded guilty in February to embezzling $70,000 in illegal gambling proceeds seized by the Pennsylvania State Police that had been entrusted to the court. Luzerne County Common Pleas Court President Judge Chester B. Muroski said he has asked Olszewski to oversee the development of a random case assignment system for criminal cases. He previously asked Judge Joseph J. Musto to do the same for civil cases. "We all know the allegations that have been made about how cases have been assigned in the past," Muroski said. "[The new systems are being designed] to address that concern." When asked about the possibility of a random case assignment system, District Attorney Jackie Musto Carroll said she thought it would be "fine as far as our office [is concerned]." Though she said she doesn't recall any "red flags" with case assignments, Musto Carroll acknowledged that the current assignment process is guided by "human decisions." "It's one thing if a computer is spitting out names at random," she said. "It's another thing if a person is making a decision."
When Brian Dunn was arrested in February 2003 on drunken driving charges, he told the arresting officer he lost control of his car on a snow-covered road, jumped a curb and hit an abandoned building, according to an affidavit of probable cause. According to the affidavit, he also hit a pedestrian. That person was lying face down on the ground with a head injury "and other unknown injuries" when a police officer arrived on the scene, according to the affidavit. Dunn said he saw the pedestrian after getting out of his car to look for damage, according to the affidavit. He covered the pedestrian with a coat. According to the affidavit, Dunn's blood alcohol level was .186 -- more than twice the legal limit. When he appeared in court, Dunn did so by himself. He did not hire an attorney to handle his case. On his own, he applied for the court's Accelerated Rehabilitative Disposition program. According to a docket sheet for the case, Conahan accepted the application and sentenced Dunn to six months in ARD. The school board member was required to pay costs and restitution, attend an alcohol highway safety program and complete 25 hours of community service within 10 months. Dunn's license was also suspended for a month.
Several sources have told The Legal Intelligencer that defendants generally do not receive ARD in cases where a person is hit or injured. Although the sources have said investigators are looking at the case, there is no indication that Dunn did anything improper regarding the disposition or that there was anything improper about the outcome. Musto Carroll said her office does not have a set policy on such incidents and that the district attorney's office would object to a defendant receiving ARD, if the injured person objected. "We don't do it," she said. "We don't go above the victim's wish." Musto Carroll said that an attorney for the man who was hit by Dunn wrote in a letter to her office that the pedestrian did not object to Dunn receiving ARD. Dunn, who was indicted April 21 for allegedly taking kickbacks, is a good friend of Luzerne County Common Pleas Court Judge Michael Toole's, sources previously confirmed to The Legal Intelligencer. Toole worked as a solicitor for the school district from 1989 until he was elected to the bench in 2003. Sources also previously told The Legal Intelligencer that the government was looking at Toole for allegedly taking a payment from attorney Robert Powell. Those sources either would not, or could not, identify the reason for the alleged payment or the amount. The payment is believed to be substantially less than the $2.6 million Powell allegedly paid Conahan and Ciavarella.
LOUIS PAGNOTTI III
Louis Pagnotti III was arrested in August 2002 after carjacking a minivan and driving off with two frightened children to the Wilkes-Barre/Scranton International Airport. According to news reports in the Citizens' Voice at the time, Pagnotti had crashed his SUV along I-81. Diane Cebrick witnessed the crash and stopped her Dodge minivan to see if she could help. When she got out of the van, the newspaper reported, Pagnotti jumped in and sped off. Her two children, daughter Cassandra, age 12 at the time, and son Craig, age 11 at the time, were still in the van. They were found 70 minutes later at the airport, unharmed. According to the Citizens' Voice, it was the first time the Amber Alert system had been used by police in Northeastern Pennsylvania. Pagnotti was arrested Aug. 6, 2002, and charged with four felonies, including robbery of a motor vehicle and interference with the custody of children and unlawful restraint, and three misdemeanors. According to court dockets, once bail was set for Pagnotti, there were no new docket entries until April 2003, nearly eight months after his arrest. While the docket does not show any continuances prior to April 2003, newspaper accounts report that Pagnotti's preliminary hearing was postponed at least twice.
Court dockets show that Conahan and Ciavarella's involvement in the case began in April 2003, when Conahan handled a petition for writ of habeas corpus. The next two docket entries show that Ciavarella took over the case and continued it May 5, 2003, and that he took the habeas corpus petition under advisement on May 16, 2003. Ciavarella later dismissed three of the felony charges on June 23, 2003, court dockets show. The remaining felony, theft by unlawful taking, was dismissed "at write up by DA" in front of Conahan Dec. 18, 2003, according to court dockets. Pagnotti then pleaded guilty to three misdemeanors. Conahan fined him and sentenced him to probation. Pagnotti's connection to Conahan and Ciavarella comes via D'Elia. In January, sources told The Legal Intelligencer that D'Elia, a reputed mob boss, was cooperating with federal authorities in the investigation into judicial corruption in Luzerne County. D'Elia's friend, admitted felon Robert Kulick, who is also cooperating with federal authorities in the probe, told lawyers for the company that owns the Citizens' Voice in a declaration that he and D'Elia met with Conahan roughly twice a month to discuss cases from 1999 to 2007. Kulick and Conahan are friends, sources have previously confirmed. Through his lawyer, D'Elia has denied he ever met with Conahan to fix cases. According to court documents filed in federal court, Pagnotti was indicted, along with co-defendant Frank Pavlico III, in February 2005 and charged with laundering drug money. The charges, according to the grand jury indictment, stemmed from activity beginning in the summer of 1999. The same grand jury later came back in May 2006 and charged Pagnotti with perjury as well. Pagnotti and Pavlico were later both named as unindicted co-conspirators in a federal grand jury indictment filed against D'Elia in October 2006. According to that indictment, Pagnotti and Pavlico allegedly conspired to hide drug proceeds by "characterizing them as 'commissions' and 'loans,'" and that Pavlico later had D'Elia invest the money. The indictment also accuses the three men and others of conspiring to obstruct justice and to commit and suborn perjury before a federal grand jury. Pavlico pled guilty in 2007 to federal money-laundering charges.
D'Elia, described in publications as the reputed head of a Northeastern Pennsylvania crime family, pleaded guilty in March 2008 to money-laundering and witness-tampering charges, The Associated Press reported. Court records show that Pagnotti pleaded guilty in November 2007 to perjury. When asked if Pagnotti was cooperating with federal authorities, and, if so, if he had been asked about the Luzerne County judges, his lawyer, Patrick A. Casey of Myers Brier & Kelly in Scranton, Pa., replied: "No comment." Pagnotti's attorney in the carjacking case, John P. Moses, could not be reached for comment. Several members of the legal community familiar with the facts surrounding the carjacking case expressed disbelief that the felony charges would have been dismissed and that Pagnotti would not have done some jail time. Several sources said the rumor was always that the case had been fixed. "That was the talk around the courthouse, no doubt about it," one source said. "But nobody's talked about it in years." Lupas said that he didn't agree with Ciavarella's decision to dismiss most of the felony charges against Pagnotti and was contemplating refiling the charges. But he said he met with the victims and their family and that the family wanted to resolve the matter and did not want the kids to testify. "I felt my responsibility was to the victims and to see that they were satisfied," Lupas said. "They wanted the matter resolved and not have the kids traumatized any more than they already had been, and they were satisfied with the outcome."
Butera, the wife of Conahan's friend attorney Michael Butera, was arrested three times within six months in 2007 for a variety of offenses, including writing bad checks, forgery, theft by unlawful taking, receiving stolen property, drunk driving and drug possession. According to the court dockets, Mary Butera was not represented in her first two arrests. She did have an attorney regarding her third arrest, court dockets show. After appearing before Conahan regarding the second two arrests, all the charges were nolle prossed and Butera pleaded guilty in April 2008 to two counts of DUI, the docket and court papers show. Conahan sentenced her to 72 hours to six months in-home confinement on the two charges, suspended her driver's license and fined her. Press reports in the Times-Leader said Michael Butera contributed $10,000 to Conahan's retention campaign in 2003 and that the two men went to law school together.
According to court records, Mary Butera was arrested first on Jan. 22, 2007, and charged with writing bad checks. Roughly two weeks later, on Feb. 5, 2007, Michael Butera contributed $1,000 to Lupas' judicial campaign, according to campaign finance reports. The charges were dismissed April 20, 2007. Lupas said he was not aware of the bad check charge and that it was not the type of case that would have come across his desk. He said a lot of people donated to his judicial campaign and that Michael Butera's contribution would have had no influence on him. He said a review of the case showed that it was dismissed before it got to his office because Mary Butera made full restitution, and the victim did not want to press charges. Just four days before the bad check charges were dismissed, Mary Butera was arrested again on April 16, 2007, court records show. She was charged with multiple counts of forgery, theft by unlawful taking, receiving stolen property and securing execution of documents by deception. According to the complaint filed by police, Mary Butera forged her husband's signature on several checks for accounts tied to his law practice, including a client trust account, and stole $3,600.
According to the affidavit of probable cause, Michael Butera alerted police to the missing checks. When confronted by police, Mary Butera "openly and voluntarily admitted" to taking the checks and also said she was aware she was not permitted to possess her husband's business checks or endorse his signature, the affidavit said. Mary Butera applied for ARD and was accepted. Court papers show that she appeared before Conahan Sept. 20, 2007, and that he sentenced her to ARD for 12 months. However, nearly two months before her sentencing hearing, Mary Butera was arrested a third time on July 26, 2007, and charged with three counts of DUI, one count of drug possession and one count of possession of drug paraphernalia. According to the affidavit of probable cause, the police pulled Mary Butera over for speeding. The police officer noticed "a strong odor of alcohol" coming from her breath, as well as a "baggy containing a white substance which appeared to be cocaine" and a pipe "commonly used to smoke drugs." According to criminal complaint, Mary Butera's blood alcohol concentration was 0.16 or greater. People sentenced to ARD in Luzerne County normally have it revoked if they are arrested within six months of being put on the program, sources have said. According to papers filed by the Luzerne County district attorney's office, Butera never disclosed the new arrest when she applied for ARD and she never told Conahan during her sentencing hearing that she had been arrested again. And if Conahan knew about the arrest, there is no indication that he said so during the sentencing. "The new arrest also failed to appear in the criminal background report that was completed subsequent to her April 12, 2007 arrest," Lupas wrote in his petition for revocation of ARD. "The defendant's deception on her ARD application and failure to disclose the new arrest, combined with the fact that she has been re-arrested, warrant her removal" from the ARD program, he wrote. While the official docket does not note it, court papers in her criminal file show Mary Butera's case was continued five times from Oct. 22, 2007, to April 10, 2008, when both the outstanding cases against her, the stolen checks and the DUI and drug possession, were dealt with in front of Conahan. While court papers filled out by hand say "revocation of ARD," all of the stolen check charges related to Mary Butera's ARD sentence were nolle prossed. The drug possession charge and possession of drug paraphernalia was also nolle prossed, and Mary Butera pleaded guilty to two counts of DUI.
Luzerne County Assistant District Attorney Jeff Tokach said he wasn't aware of the friendship between Conahan and Mary Butera's husband, and that to his knowledge Conahan never acknowledged it in court. Tokach said there were reasonable explanations for how each of Mary Butera's arrests were handled. The bad checks case was dismissed because Mary Butera made full restitution to the business, he said, and the stolen checks case was nolle prossed because her husband no longer wanted to press charges. When asked if it was unusual for the district attorney's office to petition to revoke ARD, but then ultimately allow all the charges to be nolle prossed, Tokach said it wasn't. A case like that would be difficult to prosecute without the cooperation of the victim, he said. Tokach said that a review of Mary Butera's file did not turn up any explanation for the continuances. "Maybe the continuances were a little unusual," Tokach said. Lupas pointed out that he petitioned to revoke her ARD and sought to prosecute her but was out of the office and on the bench when the bulk of the charges were nolle prossed. The attorney who represented Mary Butera for her DUI arrest could not be reach for comment. Michael Butera also could not be reached for comment.