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Legal Ethics

Top Pa. Court Axes $3.5M Libel Verdict Due to ‘Judicial Impropriety’

Posted Nov 4, 2009 7:38 PM CDT
By Martha Neil

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Because of questionable conduct of the Luzerne County judges who oversaw the case, a Pennsylvania newspaper must get a new trial in a defamation lawsuit that resulted in a $3.5 million bench verdict in 2006, the state's top court ruled today.

The Pennsylvania Supreme Court did not find that lawyers for the Citizens' Voice were correct in their contention that reputed Bufalino crime family head and convicted felon William D'Elia may have intervened with the then-president judge of Luzerne County to get a winning ruling from another judge for a plaintiff businessman. But the court did find that the "pervasive appearance of impropriety" in the assignment and trial of the libel case requires a new trial, according to the Scranton Times-Tribune and a seven-page court order (PDF).

The court's ruling followed the recommendation of a Lehigh County judge specially appointed to hear evidence in the case concerning the newspaper's request to overturn the verdict.

That evidence included, the supreme court writes, a docket notation by a Luzerne County court official that then-president judge Michael Conahan and his cousin, then-court administrator William Sharkey, had "hand-assigned" the Citizens' Voice case to then-Judge Mark Ciavarella, after both Conahan and Ciavarella assured the newspaper that the case would be randomly assigned.

Meanwhile, evidence shows that Conahan had been involved in what the supreme court describes as a long-term relationship with D'Elia. It included, the opinion says, "his accepting unmarked envelopes delivered to the courthouse by D'Elia via a courthouse employee, as well as his meeting regularly with D'Elia at a local restaurant where they would have what was described by witnesses as business papers spread on the table before them."

Ciavarella testified during the hearing that he never spoke with Conahan about the libel lawsuit and rendered a fair verdict; Conahan and D'Elia did not testify.

Ciavarella, Conahan and Sharkey were all charged in criminal cases unrelated to the libel lawsuit, as detailed in earlier ABAJournal.com posts. While Ciavarella and Conahan have not been convicted, the two now-former judges "were confederates in what appears to have been (by Ciavarella's own admissions here) a long-term criminal conspiracy," the supreme court writes, referring to allegations that Conahan and Ciavaralla accepted millions of dollars in kickbacks from a local attorney who had an ownership interest in private juvenile detention facilities used by the county.

There are no acceptable gradations of judicial fairness, the court continues, and it is not the court's job to "indulge an invitation to be deliberately obtuse." Hence, the interest of justice requires a new trial and the supreme court is authorized, because of its supervisory power over inferior tribunals, to grant a new trial "to remedy judicial impropriety."

The "inherently troubling nature of Conahan's and Ciavarella's compromised positions as jurists" is exacerbated, the supreme court says, by the subject matter of the newspaper coverage at issue in the libel suit. It concerned, as the court puts it, "reporting on the undisputed fact of a federal criminal investigation into D'Elia's and [plaintiff Thomas] Joseph's alleged ties to organized crime activities, an investigation which included search warrants for Joseph's home and businesses."

Joseph was never charged in the federal probe, notes the Associated Press. The Scranton Times is the parent company of the Citizens' Voice and was also a defendant in the litigation.

Attorney George Croner, who represents Joseph, told the news agency earlier this year he had "no doubt" the Citizens' Voice newspaper articles defamed his client but did not immediately respond to an AP phone message seeking comment today.

Attorney Tim Hinton, who represents the newspaper, says Joseph never proved that the articles were false.

Earlier related coverage:

ABAJournal.com: "Top Pa. Court Vacates 6,000+ Juvenile Rulings By Ex-Luzerne County Judge"

ABAJournal.com: "Federal Judge Again Rejects Guilty Pleas of 2 Former Pa. Judges"

ABAJournal.com: "Reverse $3.5M Verdict Due to Taint of Corrupt Judges, Overseer Tells Top Pa. Court"

ABA Journal: "Town Without Pity"

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