Town Without Pity
For years, a judge in Pennsylvania jailed kids illegally. Whether it was for ‘tough love’ or just cold cash, where were the lawyers?
Posted Sep 1, 2009 11:40 PM CDT
By Wendy N. Davis
Seventeen-year-old Krystal Pope was caught with some pot after the police pulled over a car in which she was a passenger.
Marshonda Seward, 16, was in a fight in a park.
Jessica Van Reeth, 17, was caught with a cigarette lighter and what appeared to be a dope pipe in school.
None had records. All walked into a juvenile court in Wilkes-Barre, Pa., to face charges, expecting to return to their homes that night. Instead, Luzerne County Court of Common Pleas Judge Mark A. Ciavarella elicited guilty pleas from each of the juveniles and then ordered them to residential centers. The entire process, from swearing-in to leaving the courtroom in shackles, took no more than five minutes.
The three teens were among hundreds Ciavarella sent to boot camps, wilderness programs and the like in the 12 years he was on the bench—despite a state law that required him, whenever possible, to return most delinquent youths to their homes.
Ciavarella became infamous for his tough-on-crime stance, but federal prosecutors would later accuse him of having another, more cynical reason for locking up so many kids. Federal authorities alleged in January that he was taking kickbacks from the developers of two new detention centers, through which some of the youngsters he dealt with inevitably passed.
Ciavarella acknowledges taking a share of $2.6 million for helping developers secure the county contracts to build the centers. In February he and Michael T. Conahan, Ciavarella’s friend and former Luzerne County president judge, pleaded guilty to charges of wire fraud and tax evasion, and agreed to resign in exchange for promised prison sentences of 87 months. While awaiting sentencing, Ciavarella publicly denied sending youngsters to detention as part of a deal with the developers. He recently told the Citizens’ Voice that the developers got the same $3 million per year from the county no matter how many juveniles passed through the centers.
In late July, after receiving the pre-sentence report, U.S. District Judge Edwin Kosik rejected the negotiated 71⁄4-year prison term, saying it was “well below the sentencing guidelines” given the former judges’ post-plea conduct, including Ciavarella’s ongoing denials. The ex-judges had until Aug. 10 to either seek to vacate their guilty pleas, in which case they could face trial on the original indictment, or allow Kosik to impose a sentence that could be as long as 25 years.
Earlier this year, the Pennsylvania Supreme Court threw out hundreds of juvenile convictions from Ciavarella’s court. Meanwhile, at least three class action lawsuits are coursing their way through the courts.
But that is only part of the story. Though lawyers, politicians and parents are quick to condemn Ciavarella, questions continue to swirl about how the “kids for cash” scandal could have occurred.
Not only do authorities say it went on for as many as five years; they also claim it was so blatant that they are astonished almost no one—including the lawyers who regularly practiced there—were willing to stand up and speak out about what was going on in Luzerne County.
What is described in interviews, public records and court documents is a culture in which lawyers famously went along to get along rather than push back against a judge who openly and notoriously violated the law he was sworn to uphold—even when those violations affected the lives of children. And the heart and soul of that—even its spokesman—was Ciavarella.
A SAVIOR KNOWN AS ‘SCOOCH’
Wilkes-Barre, Luzerne’s county seat, sits in the heart of Pennsylvania’s once booming anthracite coal region. But locals these days fear it is becoming better known as the murder capital of northeast Pennsylvania. In 2008, there were three murders in the county. By June this year, 13 homicides were already on the books.
Like so many other small counties, Luzerne has limited resources to deal with its legal needs. Its nine judges each handle a variety of criminal and civil matters on a regular, rotating schedule.
Ciavarella was the county’s only juvenile court judge and heard delinquency matters twice a week in the courthouse. On the other days his docket was filled with civil and adult criminal matters.
The community of lawyers in Luzerne was equally small. The attorneys who appeared before Ciavarella in juvenile court also regularly appeared before him on other days for other matters. They understood his powers to, for example, slash contingency fees in civil matters or issue discretionary rulings that could ultimately determine the outcome of a lawsuit.
Around the courthouse, Ciavarella was known as a lawyer’s judge. He wouldn’t make lawyers wait for hours for their cases to be called; criminal defense attorneys say he didn’t hesitate to dismiss charges if the prosecution didn’t prove them.
And around Luzerne County, Ciavarella—a Wilkes-Barre native whose father worked in a local brewery—was liked even more. Known as “Scooch,” Ciavarella coached a local swim team and was a frequent figure at civic events. In 2006 he was named man of the year by the Friendly Sons of St. Patrick of Greater Wilkes-Barre.
He also was well-liked by school authorities who, according to one school board official, considered him their “savior.” When it came to juvenile matters involving schools, Ciavarella favored a “tough love” approach. Not long after the 1999 high school shootings in Columbine, Colo., he began espousing zero tolerance for juvenile crime, especially when youths got in trouble at school.
First elected to the bench in 1995, he ran for retention on that platform in 2005, insisting in press interviews that probation wasn’t effective for dealing with juveniles. Ciavarella was remarkably open about his intentions. He told students during school visits that he would send them to residential centers if they got arrested.
But backing that threat involved an almost routine disregard for the well-established legal rights of juveniles—including the constitutional right to counsel and the presumption of innocence. Through an extensive and questionable use of waivers of counsel, Ciavarella often co-opted potential resistance to his brand of jurisprudence, with lawyers, parents and even the young defendants becoming enablers to his policy of tough love.
Many of the teens Ciavarella sentenced had committed offenses so minor that adults accused of the same crime—even those arrested for the same underlying incidents—walked away with minimal fines. And while the reasons behind the sentencing discrepancies remain unclear, one factor that may have played into it was the startling lack of legal representation for many juveniles who appeared before Ciavarella.
IN THE NUMBERS
When it comes to waivers of counsel, the numbers are staggering. Pennsylvania state data reveals that half of the youngsters who were hauled into Luzerne County Juvenile Court on delinquency charges lacked any kind of counsel. That comes to more than 1,000 juveniles in the five years between the time the new detention centers opened in 2003 and when Ciavarella stepped down in 2008.
During those years, he sent nearly 25 percent of the minors who appeared before him to out-of-home placements, while the statewide average was around 10 percent. When he took over juvenile court in 1996, only 4.5 percent of cases resulted in out-of-home placements.
In Pennsylvania, the parents of juveniles arrested for crimes receive a summons in the mail that includes information on how to apply for a public defender. The burden is on the juvenile’s parents to apply.
Luzerne County Chief Public Defender Basil Russin says that his office accepted any families who met the federal poverty guidelines, and that criteria were relaxed further for juveniles. Still, he says, many families simply didn’t ask for a public defender. “If they applied, we gave them lawyers,” he says. “If they didn’t apply, we didn’t know the case existed.”
Russin’s explanation extinguishes only a fraction of the questions about why so many juveniles in Luzerne County went unrepresented during Ciavarella’s reign.
In some instances his reputation as a tough judge discouraged parents from seeking counsel for their children. One juvenile-justice group alleges in court documents that a parent approached a private attorney about her child’s case, only to be advised to save her money. In other cases parents were also the complainants and were asking the court to exert control over their children.
But in many other instances, the reasons for the lack of counsel are questionable, at best.
According to Lourdes Rosado, associate director of the Juvenile Law Center, a Philadelphia-based child advocacy group, representatives of the county probation department and the local police often advised parents not to request a lawyer. “Parents were told by probation officers, ‘This is pretty minor. Your child’s going to get probation. You don’t need to worry about it.’ ”
On occasion parents were confronted at the courthouse elevators by probation department officials asking them to sign waiver-of-counsel forms for their children, Rosado says.
Some youngsters who said they wanted attorneys were told they had no choice: “The probation officer said, ‘You have to sign this because your dad signed.’ ”
Juveniles are allowed to waive counsel, but like other rights, waiver is supposed to be voluntary and informed. At a minimum, Ciavarella should have asked the juveniles on the record whether they knew they had a right to a court-appointed lawyer and whether they were waiving that right. In many instances, he never did so.
In adult cases, by contrast, defendants rarely waive counsel because the judges warn on the record that it’s extremely difficult to proceed to trial in Luzerne County without a lawyer. And while the public defender’s office can say with credibility it cannot recruit new clients, critics say county prosecutors and probation officers saw firsthand that juveniles lacked attorneys and did not complain.
“It’s a major, major indictment of the DA’s office in Luzerne County,” says Ron Turo, a defense lawyer in Carlisle in Cumberland County and an officer of the Juvenile Defender Association of Pennsylvania. “They knew what was happening because they were in the courtroom. They carry more responsibility than any other lawyer in the system.”
David Lupas, the former Luzerne County district attorney, was elected to the bench in 2007 and now presides over juvenile delinquency cases. He declined to discuss anything relating to juvenile cases handled by his office. The current district attorney, Jacqueline Musto Carroll, refused to comment, as did the county probation department.
PUTTING A LAST RESORT FIRST
Juvenile court is supposed to be a kinder, gentler place than criminal court. Juvenile court judges are supposed to craft dispositions to rehabilitate youngsters, not just punish them.
Pennsylvania law specifically provides that judges should only remove youngsters from their homes as a last resort, given that doing so disrupts their education, stigmatizes them and, in many cases, does not address the underlying problems that resulted in the court case.
“The foundation for the entire Juvenile Act in Pennsylvania is to preserve the unity of the family whenever possible,” says Jim Anderson, executive director of the Juvenile Court Judges’ Commission.
At the same time, juveniles have a liberty interest at stake. That’s why, in 1967, the U.S. Supreme Court ruled in In re Gault that minors accused of delinquency had the right to many of the same procedural safeguards as adults, including the right to counsel, to cross-examine witnesses at trial and to have the charges proven beyond a reasonable doubt.
Ciavarella did the exact opposite of what the law requires in almost every respect. He didn’t appoint lawyers, didn’t advise youngsters of their right to a trial, and didn’t appear to presume anyone was innocent. He admitted to ABC’s 20/20 that he read reports by the probation department about teens’ social circumstances in advance. If schools or parents reported that kids talked back to teachers, were disrespectful, stayed out past curfew or other similar acts, Ciavarella learned of that before presiding over the fact-finding portion of the case. He used that information to determine a disposition before there had even been a guilty plea.
Even when represented by counsel, youngsters routinely made admissions without first being told they had a right to trial, to cross-examine witnesses, present a defense or other constitutional rights.
“We’ve been focused on the waiver of counsel,” says Rosado at the Juvenile Law Center. “But there were also constitutionally infirm guilty pleas.”
Russin disputes that, saying many of the guilty pleas were justified in the face of overwhelming evidence. He says that many made full confessions to the police after they were arrested. He adds that it would have been difficult to get those statements thrown out because the parents were usually present for questioning.
Jon Ursiak, the public defender who has handled juvenile cases in Luzerne since 2007, says some teens benefited from plea bargains, avoiding felony findings by pleading guilty to misdemeanors.
But in many cases, the youngsters and their families never even knew what was in the probation reports Ciavarella was reading in advance, nor did they have the opportunity to challenge the probation officer’s facts or conclusions. Krystal Pope, now 19, says whatever information Ciavarella relied on when he sent her to a residential center wasn’t correct.
“He said I was disrespectful and had a problem with authority,” Pope says. “That’s not true at all. I was never in trouble before. It was so weird hearing him say those things.”
OPEN AND NOTORIOUS
In Pennsylvania, juvenile misdemeanor cases are closed to the public, but Ciavarella’s approach to juvenile justice was controversial in the area years before the kickback allegations surfaced.
In 2004 the Wilkes-Barre Times Leader ran a front-page story about the extraordinary number of juveniles whom Ciavarella was placing in residential programs.
The judge defended his practices, saying probation wasn’t sufficient to get a child’s attention. “If a child believes the consequence will be anything other than placement, they don’t care,” he told the newspaper.
While some parents and local advocates complained that Ciavarella treated juveniles too harshly, many in the local community and the schools supported him.
As the only judge handling juvenile criminal matters in the county, Ciavarella effectively had the power to set policy about delinquents. When he decided to stop giving probation to juveniles arrested at school, he singlehandedly ensured that schools could evict trouble- makers by calling the police for just about any incident.
While some parents objected to Ciavarella’s astonishing power, few could do anything about it. The only exception to Ciavarella’s policy of placement for school-related incidents was if school officials agreed to a “consent decree,” which meant the case would be dismissed after six months and the juvenile would remain at home.
Phyllis Mundy, a representative in the Pennsylvania General Assembly for Luzerne County, adds that some schools were more than happy to take Ciavarella up on his offer to send troublemakers out of town. “The minute anything happened, they wouldn’t deal with it in the school but would call the police, call the DA,” she says.
Mundy says some parents complained to her that Ciavarella was too harsh on their children, but she didn’t think it her place to tell a judge how to run his courtroom. She did, however, call Jim Anderson at the Pennsylvania Juvenile Court Judges’ Commission and asked him to investigate. Anderson spoke to Ciavarella, but nothing changed. Anderson recalls only that the conversation was “cordial.” Mundy says she referred a second family’s complaint to the Juvenile Law Center.
For the most part, Luzerne County defense lawyers seem to have resigned themselves to Ciavarella’s sentencing philosophy. Ferris Webby of Kingston, a criminal defense attorney in Luzerne County since 1981, says lawyers just accepted that school cases were Ciavarella’s “pet peeve.”
“For some judges it’s sex crimes; for some it’s elder abuse. For him, it was school cases.”
While juveniles could have appealed Ciavarella’s orders, the sentences were so short that a successful appeal would prove meaningless, according to Russin. “One of the failures of juvenile law,” he says, “is that by the time you appeal the damn thing, they’re home.”
Overall, only the “absolute strongest lawyers, who didn’t mind facing his wrath,” ever pushed back, says Barry Dyller, a Wilkes-Barre attorney who has filed one of the pending civil rights lawsuits on behalf of some of the juvenile defendants.
The most notable challenges to Ciavarella came from outside the Wilkes-Barre defense bar. In 1999, the Juvenile Law Center appealed a case in which Ciavarella failed to inform a 13-year-old of his right to a lawyer. The Pennsylvania Superior Court reversed the delinquency adjudication, prompting Ciavarella to tell the local paper that he would never again allow juveniles to appear before him without attorneys.
Another challenge to Ciavarella’s actions led to a new state law. In 2006 he detained 13-year-old Dayquawn Johnson for a weekend when the teen failed to appear in court after being subpoenaed as a witness. Johnson had been served with the subpoena in school, but police had never informed his parents.
Johnson’s case caught the attention of U.S. Sen. Arlen Specter, D-Pa., who urged an advisory committee to the Pennsylvania Supreme Court to review a recommendation from the National Association for the Advancement of Colored People that parents be notified when their children are served with subpoenas. The court changed the procedural rules to require the notification.
A BROKEN SYSTEM
Shortly after the Johnson incident, Ciavarella sent a 14-year-old girl to a residential institution for 90 days after her first arrest—for fighting with another girl. Ciavarella also sent the other girl away to the same institution—and directed that they share a cabin.
The case spurred local NAACP head Ron Felton to complain about juvenile court in a letter to the Wilkes-Barre Times Leader. Felton said that the school overreacted to the fight, and that the girls’ arrests should have been a last resort. He also believed that the public defender’s office provided inadequate representation. “The system is broken and it needs to be addressed,” he wrote.
Luzerne County President Judge Chester Muroski also thought the system was broken. Muroski, the county’s former juvenile court judge, had been presiding over “dependency” cases—in which parents were accused of neglecting or abusing their children by taking drugs or other acts that posted a threat to the children’s safety—during much of Ciavarella’s tenure as juvenile judge. In many instances, Muroski ordered the county to work with the parents by offering drug treatment programs or other counseling services while the children remained in foster care.
By 2005, he realized that the county wasn’t complying with those orders because the entire budget for juvenile matters was devoted to placing delinquents in residential centers.
The result was that children in dependency cases had to remain in foster care longer because they couldn’t be returned home until the parents received treatment.
In June 2005, he wrote a letter to Luzerne County commissioners with his concerns and threatened to hold the county in contempt if it didn’t start complying with his orders. He never got the chance. After sending the missive, Conahan removed Muroski from dependency court and reassigned him to preside over criminal cases. Muroski and others perceived the move as retaliation for having protested.
“The message was received far and wide,” Muroski says: “Keep your mouth shut.”
Publicly, Ciavarella justified his policies by touting the low recidivism rate. The Times Leader reported in 2004 that the proportion of youngsters rearrested dropped to 19 percent, down from 60 percent in 1996.
But others say those recidivism statistics didn’t take key factors into account. In his 2005 letter to the county commissioners, Muroski pointed out that some young offenders had remained in placement until they turned 18, so they couldn’t reoffend as juveniles. “Many argue that the low rate of recidivism is misleading because a large number of juveniles remain in placement until they reach majority and sometimes longer. Unfortunately, there are not statistics on how many enter the adult criminal system, after their release, as an adult.”
RULING TRIGGERS PROBE
Had it not been for 15-year old Hillary Transue, Ciavarella might have continued to rule indefinitely over Luzerne County’s juvenile court. She was arrested for harassment because she made fun of her assistant principal on MySpace. Police told her mother that she didn’t need to hire a lawyer.
When Hillary—labeled a “stellar student” by the New York Times—pleaded guilty to harassment, Ciavarella ordered her sent immediately to a 90-day program. Her mother, Laurene, was so stunned she collapsed in the courtroom. “No, that’s not fair. That’s not what the officer said,” Transue blurted out, according to court transcripts.
Transue took her daughter’s case to the Juvenile Law Center. There lawyers promptly filed a writ of habeas corpus and secured Hillary’s release. And when the law center lawyers investigated Hillary’s case further, they learned that in Ciavarella’s court, her case was not exceptional.
In April 2008, the JLC took the extraordinary step of asking the Pennsylvania Supreme Court to assume jurisdiction over all of the cases of juveniles adjudicated delinquent in Luzerne County since 2005. The Pennsylvania Department of Public Welfare and the state attorney general joined in that application. The Luzerne County district attorney opposed it.
Ciavarella stepped down the next month. In January, the Pennsylvania Supreme Court denied the JLC’s petition without comment. But the matter wasn’t over.
The FBI was independently investigating Ciavarella and Conahan for accepting money from the detention center developers. As part of that investigation, authorities learned that Ciavarella and Conahan had financial ties to “W-Cat,” a townhouse development firm owned by Jill A. Moran, a former county prothonotary (an elected county clerk). Moran was a business partner of Robert Powell, one of the detention center developers.
Powell developed the centers with Greg Zappala, who is the son of former Pennsylvania Supreme Court Chief Justice Stephen Zappala. Neither has been accused of criminal wrongdoing, but both are defendants in the class action lawsuits filed this year. Powell also has gone on record saying the judges leaned on him for money.
Powell pleaded guilty in July to failing to report a felony and being an accessory to a tax evasion conspiracy for paying the judges more than $770,000. He’s expected to be given a sentence of up to 5½ years.
Moran resigned from her county position in March. Ciavarella and Conahan were indicted in late January.
Shortly afterward, the Pennsylvania Supreme Court reconsidered the Juvenile Law Center’s petition and granted it. The court appointed Berks County Senior Judge Arthur Grim to review all juvenile cases between 2003 and 2008 in Luzerne County. So far Grim has recommended expunging the records of all juveniles with- out lawyers who were found to have committed misdemeanors. He now is evaluating the tougher calls—cases where juveniles had lawyers or were adjudicated delinquent for committing felonies.
The Juvenile Law Center is arguing that all of those cases should be dismissed. The district attorney argues that the more serious cases should be vacated and the juveniles should be retried.
Lupas, the new Luzerne County juvenile court judge, is not allowing juveniles to waive counsel and is appointing attorneys in every case, even if one isn’t requested. Meanwhile the scandal continues to grow. Since the initial indictments, Sandra Brulo, the former head of Luzerne County’s Probation Department, was arrested for altering a juvenile’s record—apparently to avoid potential liability in one of the pending class action lawsuits. She pleaded guilty to one count of obstruction of justice in March. In April, she surrendered her social work license.
The corruption allegations have since extended well beyond juvenile court. There’s also an allegation that Ciavarella fixed civil cases at the behest of jailed mobster William “Big Billy” D’Elia. Additionally, a third Luzerne County official, court administrator William Sharkey, was recently arrested on charges that he embezzled $70,000. Ciavarella continues to deny he had a profit motive. He insists that there was no quid pro quo for sending youngsters to detention, and that some of the youngsters he placed went straight to boot camps, bypassing the detention centers.
But the Juvenile Law Center isn’t buying it. It argues in court papers that Ciavarella still had an interest in adjudicating delinquent as many kids as possible and then placing them in residential centers; some would inevitably pass through the centers, ensuring that they would remain occupied.“It’s smoke and mirrors,” says JLC Executive Director Bob Schwartz. “If you’re making sure the beds are filled, every kid doesn’t need to go there. He was abusing power with every kid.”
Lawyer Wendy N. Davis, a journalist, lives in New York City.