Convicted "Cash for Kids" Judge Confronted by Mother of Dead Teen

Judge Convicted in "Cash for Kids" Scandal, Mother of Dead Teen Confronts Him

The Legal Intelligencer by Zack Needles and Leo Strupczewski - February 22, 2011

PHILADELPHIA, PA - While he was found guilty on the most egregious charges at the heart of his case, including racketeering, former Luzerne County Common Pleas Judge Mark A. Ciavarella Jr. escaped a bribery conviction because a federal jury in Scranton "bent over backward" to follow its instructions to the letter, according to Assistant U.S. Attorney Gordon A. Zubrod. "The verdict was not a conclusion that bribery did not occur," Zubrod said following the trial, explaining that the jury likely had difficulty tracing where the money developer Robert K. Mericle paid to Ciavarella went after it was deposited and therefore felt the burden of proof had not been met. Ciavarella's attorneys disagreed, however. Albert Flora told reporters after the trial that the not guilty verdict on the bribery charge showed that the jury "obviously did not believe Robert Powell's testimony and they obviously didn't believe Jill Moran's testimony." But Powell's attorney, Mark B. Sheppard of Montgomery McCracken Walker & Rhoads, said that analysis was superficial.

Under Hobbs Act extortion charges, Sheppard said, there's a far tighter requirement for the government to show quid pro quo than under honest services fraud charges. Asked if prosecutors could have helped clear themselves of the extra evidentiary hurdle in the minds of the jurors by attempting to prove the "kids-for-cash" allegations they made early in the case, Sheppard said Zubrod's and Houser's tactics ensured they didn't overcomplicate the case. The "core" of the case, he said, was the honest services fraud and racketeering charges. Ciavarella was convicted of four of the eight honest services fraud charges he faced and both racketeering charges. "I don't think the [prosecution] was missing anything," Sheppard said. "I thought the case went in perfectly. I don't think there was anything they should have done differently." U.S. Attorney Peter Smith praised the verdict, saying it "put the lie" to the claim that corruption is the status quo in Northeast Pennsylvania. "It's a part of the culture that must change," he said. On Friday the federal jury in Scranton found Ciavarella guilty of 12 of 39 counts of corruption filed against him. The 12 men and women, who deliberated for an estimated 12.5 hours, returned to U.S. District Judge for the Middle District of Pennsylvania Edwin M. Kosik's courtroom to announce their findings, which included decisions that Ciavarella was guilty of racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. Ciavarella was cleared of extortion, bribery and honest services wire fraud charges, however. Once the jury had left the courtroom for good, Assistant U.S. Attorney William Houser asked Kosik to order that Ciavarella be detained until sentencing. Ciavarella poses a flight risk because he has "little to lose" in light of the guilty verdicts, Houser said. "He's a 61-year-old man facing the rest, or most of the rest, of his life in prison," he said, adding that Ciavarella has the wealthy connections necessary to "easily" obtain funding to leave the country. But defense co-counsel William Ruzzo said Ciavarella "would rather go on a gurney and be injected than leave his family" and that "he'll be around to see what the appellate courts have to say." Kosik, finding that Ciavarella poses no threat of fleeing since he already has fully complied with the probation office for two years, released him on a $1 million unsecured bond on the condition that he be placed in the custody of his pregnant daughter. Ciavarella, Flora and Ruzzo were swarmed by reporters and onlookers immediately upon exiting the courthouse Friday, with several other spectators lining the street. Flora told the media that the jury "rejected 95 percent of the case." "The government really got hurt today in this entire case," he said. When he added later that "this was not a cash-for-kids scandal," a woman in the crowd began crying and screaming that Ciavarella had driven her son to suicide by sending him to juvenile detention. "Do you remember me? Do you remember my son, the all-star wrestler?" she asked Ciavarella. "He shot himself in the heart." The ex-judge, continuing to shuffle toward his car, told reporters, "I don't know what the circumstances were concerning her son." A former juvenile delinquency court judge, Ciavarella was alleged to have taken more than $2.8 million from the builder and former co-owner of two private juvenile detention facilities, PA Child Care and Western PA Child Care. Prosecutors alleged that money was the fruit of improper kickbacks and extortion. Ciavarella denied those allegations, saying instead that he received a finder's fee from the facilities' builder, Robert K. Mericle, and rent money for a condominium in Florida that his wife co-owned from the former co-owner of the facilities, Robert J. Powell.

In the indictment, Ciavarella was charged with racketeering, racketeering conspiracy, four counts of honest services wire fraud, four counts of honest services mail fraud, 10 counts of corrupt receipt of bribe/reward for official action concerning programs receiving federal funds, money laundering conspiracy, five counts of money laundering, eight counts of extortion under color of official right, conspiracy to defraud the United States and four counts of subscribing and filing a materially false tax return. Ciavarella admitted during testimony on Tuesday that he was, in fact, guilty of filing false tax returns for tax years 2003, 2005 and 2006 as alleged by prosecutors. Prosecutors also argued during trial that Ciavarella filed a false return for tax year 2004, but Ciavarella disputed that charge. He was found guilty of it, however. He fought the majority of the charges by arguing that the kickback alleged by prosecutors was no more than a finder's fee paid by Mericle as a thank you for putting him in touch with Powell. He fought the extortion claims by attempting to insulate himself from the actions of fellow former Luzerne County Common Pleas Court Judge Michael T. Conahan and claiming that any money paid by Powell was for the use of a condominium owned by a company controlled by the former judges' wives. Conahan, who faced an equally damning indictment and opted to plead guilty to one racketeering charge in relation to the alleged crimes, was a name that arose often during the trial. He was, however, conspicuously absent in person. Neither side called him as a witness. His absence from the case was nearly as shocking as his decision to place himself at the mercy of Kosik by accepting an open-ended plea agreement in April.

In July 2009, nearly a year before that turn, Kosik threw out the initial plea agreements reached between Conahan, Ciavarella and federal prosecutors, in part because of the judges' conduct following the plea agreements and their refusal to accept responsibility for the crimes they had committed. Ciavarella had been speaking out against the allegations lodged against him in public and Kosik described them as self-serving. Conahan was being obstructionist, Kosik also said. The two former judges subsequently made a joint filing Aug. 20, 2009, petitioning Kosik to reinstate their agreed upon sentence of 87 months each in prison because neither could be found at fault for his post-plea hearing actions. Kosik rejected that Aug. 24, 2009. That same day, the former judges withdrew their guilty pleas and formally entered pleas of not guilty to the charges. In his Aug. 24 order, Kosik said in light of the presentence report and sentencing recommendation from the probation office, it was within his discretion to throw out the plea agreements. The probation officer's "assessment and justification for the recommendation" was partly the basis for Kosik's earlier conclusions that Conahan was obstructing justice, failing to discuss the motivation behind his conduct and failing to accept responsibility for his crimes, he said. "The probation recommendation characterized these failures by Conahan as based on his 'scandalous conduct,'" Kosik wrote in his Aug. 24 order. "The defense claims that a defendant is not required to admit relevant conduct beyond the offense of conviction. The court generally agrees, but the defendant was expected to admit relevant conduct related to the scandalous nature of the offense of conviction." In a telling footnote, Kosik said he had met with Conahan's and Ciavarella's lawyers twice and rejected reconsidering the plea agreements both times. He said federal prosecutors as well as the defense attorneys had urged him to reconsider the plea deals. Both sides offered to meet with him separately "to explain each side's reasons for entering into the plea agreement," Kosik said. "The offer was rejected by the court because such a meeting might impermissibly involve the court in plea bargaining," he said. Later in the body of his opinion, Kosik said: "It ill behooves both parties to want the court to consider additional reasons to be conveyed in private."

A new 48-count indictment was filed by the federal government in September 2009 and the judges entered joint "not guilty" pleas. They followed that up by filing a series of pretrial motions together, charging federal officials with "outrageous government misconduct," questioning the impartiality of the judge assigned to their case and requesting a change in venue in March 2010. Conahan, however, took the surprise turn and there were reports that he was willing to testify against Ciavarella at trial. That never happened. Powell and Mericle were called early in the trial by federal prosecutors, however, and described the scheme as alleged by the prosecution in detail. Both men, like Conahan, pleaded guilty to crimes related to the alleged scheme, leaving Ciavarella as the sole alleged participant to stand trial. The former judge is now one of three to don black robes in the Luzerne County courthouse to be facing at least 10 years in prison. Fellow former judges Conahan and Michael T. Toole both pleaded guilty to criminal charges last year as investigators untangled a web of corruption. Toole, who pleaded guilty to one count of corrupt receipt of a reward for official actions in October, had fixed the appointment of a neutral arbitrator for a UM/UIM case in exchange for the use of an attorney's beach house. Also caught in the probe were the county's court administrator, prothonotary, clerk of courts and a member of the juvenile probation services office. While The Legal had previously reported that sources had tied Conahan to mobsters, following the trial, Zubrod said that the investigation into Conahan and Ciavarella's activities "sprang from" a probe of reputed mobster William "Billy" D'Elia. At 8:45 a.m. Thursday, the first full day of jury deliberations, Ciavarella stood outside Kosik's fourth-floor courtroom with his wife and daughter, pacing along a narrow corridor overlooking the rest the courthouse. He spent the time chatting and leaning over the rail, looking at the lobby below. It was a slow, quiet beginning to a process that seemingly marks the end of one of the worst cases of judicial corruption in Pennsylvania history. This is not, however, the end for Ciavarella. He still faces sentencing and is a defendant in a civil suit filed on behalf of juveniles whom he sentenced to delinquency centers. The plaintiffs in those cases have filed civil RICO and civil rights claims, alleging the sums received by the judges were "kickbacks" and that the money was in exchange for sending juveniles to PA Child Care and Western PA Child Care. The jury's verdict should benefit those claims, said Marsha Levick, chief counsel for the Juvenile Law Center and one of the attorneys involved in bringing the suits on behalf of the juveniles. The verdicts, however, still need to be "digested" to determine the extent of their impact, Levick said. "The constitutional violations that we have alleged from day 1 weren't really a part of the criminal litigation," Levick said. "But those charges remain. The strongest statement about their validity is what the Pennsylvania Supreme Court did last year, which is to vacate and dismiss with prejudice [all the juveniles' adjudications]. The Supreme Court has already spoken about that illegality." Levick noted that the breadth of the corruption charges required the acts to be addressed in several different places, including the courts and the state legislature. "This story was so deep and so broad in the contours of judicial misconduct and illegality that it took several forums in which to seek redress and continue to seek redress," Levick said.