Kids for Cash Page 15

  Accompanied by her father, Jack Van Reeth, Jessica went before Ciavarella on January 31, 2007. She had prepared a little speech: “I have never been in trouble before, I have never been a discipline problem at school, I have a B average, and I have worked part-time as a waitress in a restaurant since I was fourteen.” But when she stood before Ciavarella, fear caught her in the throat, the blood left her brain, and the words fled her lips. In a trembling voice, she pleaded guilty to the drug charges. “I thought my only option was to plead guilty,” she remembered later. “So that is exactly what I did.”

  Ciavarella began his litany:

  “Were you there when I spoke to the assembly at Crestwood?”

  “No.”

  “Did your friends tell you what I said?”

  “Yes.”

  “What did I say would happen if you had drugs in school?”

  “That you would send us away.”

  “And that’s exactly what I’m going to do.”

  It was all over in ninety seconds. Jessica was not advised of her right to counsel, nor did Ciavarella administer the required colloquy explaining the consequences of appearing without counsel. Ciavarella did not even acknowledge the presence of Jack Van Reeth, who watched stunned as his daughter was shackled by a sheriff and taken to a small waiting room just outside the court. When Jessica described this ordeal two years later, her voice cracked and she flushed with anger as she buckled an imaginary belt around her waist and snapped on imaginary handcuffs. There was no time to say good-bye to her father. Indeed, she would not see her parents for two weeks. Soon she was joined by other shackled juveniles dispatched by Ciavarella. A caseworker came in and demanded a urine test to prove she was not using drugs. It came back negative. The caseworker handed her a sheaf of papers to sign. She began reading them.

  “Don’t read them, just sign them,” she recalls being told.

  “What will happen if I don’t sign?”

  “The judge will sign them for you. So you might as well just sign.”

  Her innate rebelliousness was momentarily stifled, and she gave in. After four hours, she learned her fate from the caseworker: Ciavarella had placed her in Wind Gap for three months. With great effort, she tried to calm herself: Everything will be all right. Don’t panic! When she arrived at the wilderness camp after a ninety-minute drive in an institutional van, she exchanged her clothing for blue sweatpants, wool socks, hiking boots, and a T-shirt with “YSA” (for Youth Services Agency) arched across the front. She was then given a lice treatment and ordered to take a shower.

  That night she was allowed to telephone her parents, but because of a communication mixup neither her father nor her mother was at home when she called. She left an anguished voice mail, laced with accusations of betrayal. “I guess you were too busy to take the time to talk to me,” she said, slamming the phone down. Jack Van Reeth has not forgotten that message.

  Within a few days, she entered the camp’s education program, which was at an alternative school designed for youths who had been suspended from their regular high schools. Almost immediately Jessica was moved to senior-level classes, which she found were the equivalent of freshman classes at Crestwood. In history class, a typical assignment might be to copy pages 56 to 60 into a notebook. Math class consisted of handing out worksheets to students. There was no formal instruction. “Stripping youth of a real education is most definitely a punishment, perhaps the worst punishment of all,” she would testify before an investigating commission two years later. “With no education, most of those children have little to no chance of succeeding and are almost doomed to become career criminals.”

  But Jessica kept herself focused on getting out: “I knew who I was, and I coped. But kids who went there with problems, a lot of them got into more trouble. This was painful to see.” Jessica served her full three-month term at Wind Gap, and just two weeks before she was released she met up with Hillary Transue, who had just arrived and was primed to be angry with Jessica; through an intermediary, Jessica had sent a jocular message to Hillary before her hearing with Ciavarella: “I’ll see you at Wind Gap.” Jessica had heard the story of Hillary’s MySpace parody—and she knew how Ciavarella would react. But when the two girls got together at Wind Gap, Hillary was teary and still traumatized by her loss of freedom. Jessica consoled her. The two would become good friends—and within a year almost to the day they would become the lead petitioners in a lawsuit that would expose one of the worst examples of judicial misconduct in American history.

  Jessica got out on April 26, 2007. She was driven to the Luzerne County Courthouse and placed on three-month probation. The terms were a 7 p.m. curfew, loss of driving privileges, six hours per week of drug counseling, three-times-a-week home visits with juvenile probation officers, and weekly drug tests via urine samples. There were other difficulties. Some of her friends shunned her at their parents’ behest. To pass the eleventh grade and become a senior at Crestwood, she had to complete a research project that normally takes three months. Because she was unable to work on it at Wind Gap, Jessica had only three weeks. Moreover, her topic was the legalization of marijuana. She knew that would inflame Ciavarella, so she switched to a new one—the psychology of color. She finished and closed out her junior year with a B average.

  Throughout the spring and summer she was beset by an anxiety as insistent as an alarm you cannot turn off: She imagined committing a minor infraction like jaywalking that would send her back to the legal system—and Ciavarella. Her eighteenth birthday was doubly celebrated—for reaching adulthood and for escaping Ciavarella’s juvenile court. When she completed her probation, she went before Ciavarella, who kissed her on the cheek. She gave him the deferential smile one reserves for a man holding a machine gun: “I said Wind Gap was really great and, thanks to him, I was rehabbed. I didn’t want any trouble getting off probation. But by this time I was talking to Laval at Juvenile Law Center, and I thought, ‘You just wait, you son of a bitch, ’til the story runs in the newspaper about what you’ve been doing to all these kids.”

  Indeed, Miller-Wilson talked to Jessica several times over the summer of 2007. He noticed the similarities between how Ciavarella handled the two young women. Even his language—the same miserable string of syllables—what-did-I-tell-you-would-happen. The words had become boilerplate, insistent as a drumroll, like a politician giving a stump speech. Miller-Wilson knew he had a pattern.

  On May 29, 2007, Miller-Wilson contacted the Juvenile Court Judges Commission, a state agency created in 1959 to improve the administration of juvenile justice in Pennsylvania. One of its main responsibilities is to compile statewide statistics and issue an annual report. However, the JCJC lacked the resources to provide meaningful information on juvenile courts in individual counties. Could the JCJC, Miller-Wilson asked, come up with statistics on waivers of counsel and placements for Luzerne County alone? Ten days later, he got his answer—and the figures were breathtaking.

  In 2002, counsel was waived in 7.4 percent of all juvenile cases in Pennsylvania, but the rate in Luzerne County was more than seven times higher—54.8 percent. In 2003, the numbers were 7.9 percent statewide, 50.2 percent in Ciavarella’s courtroom. Then, in 2004, only 4.8 percent of all juvenile defendants in Pennsylvania waived the right, but in Luzerne County it was fully ten times higher—at 50.2 percent. Out-of-home placements were also dramatic. Ciavarella was sending kids away at two-and-a-half times the statewide average. In fact, a single judge in a county with less than 3 percent of the state’s population was accounting for one in every five placements.

  Back in Philadelphia, Miller-Wilson sat down with Juvenile Law Center leadership in September 2007 to assess the gravity of the Luzerne County situation. There were three disturbing pieces of information—Hillary Transue’s case, Jessica Van Reeth’s case, and the shocking statistics on counsel waivers from the JCJC. “What’s going on here?” Marsha Levick asked. “Why are all these kids waiving counsel?” To find out, Robert Schwartz sugges
ted that Miller-Wilson station himself outside Ciavarella’s courtroom and interview parents and juveniles as they emerged. On the first “road trip,” Miller-Wilson was accompanied again by Riya Shah. It was supposed to be a covert operation, but the pair—a black man and an Indian woman—were conspicuous in northeastern Pennsylvania. So, for the second expedition Miller was joined by two white law students. At both visits, they found a pattern of children going before Ciavarella without an attorney and then being dispatched to “placement” for relatively minor offenses.

  Typically, the juveniles and their parents would get off the elevator at the Penn Place Building and see a table with a probation officer, who would ask,“Have a lawyer?” If the defendant said no, they would be directed to “sign here,” a blatantly illegal procedure, in light of the Rules of Juvenile Court Procedure. On a statewide basis, Rule 152 had cut in half the number of juvenile court waivers. But based on their observations outside Ciavarella’s courtroom, there seemed to be an ongoing countertrend in Luzerne County.

  Ironically, Juvenile Law Center was at this time coordinating a celebration of the fortieth anniversary of the Supreme Court’s 1967 Gault decision guaranteeing children the same right to counsel as adults. Gerald Gault himself joined juvenile justice experts from around the nation for a program entitled “Children Under the Constitution: The Fortieth Anniversary of In Re Gault” at the National Constitution Center in Philadelphia. Miller-Wilson was the moderator of a discussion panel that included Hillary Transue.

  But in Wilkes-Barre, Miller-Wilson and his colleagues were having difficulty identifying children who had waived counsel in Ciavarella’s courtroom. Juvenile records were sealed. Miller-Wilson began private conversations with Jonathan Ursiak, the young attorney who had joined the Luzerne County Public Defenders Office nine months earlier and was distressed by what was going on in juvenile court. Ursiak confirmed that counsel waivers were widespread in Ciavarella’s court, but he refused to give the names of the juveniles. Miller-Wilson kept calling Ursiak’s office and leaving urgent messages, but his pleas went unanswered. Miller-Wilson recalled: “We asked Ursiak to sign an affidavit that merely said, ‘I can confirm that many children appeared before Judge Ciavarella without a lawyer.’ We even offered to write it for him. But he said, ‘I can’t do that.’” Miller-Wilson grew frustrated: “No one is calling us to say that their kid went before Ciavarella without a lawyer. So we keep the pressure on Ursiak. But Ursiak would only confirm that unrepresented children were appearing before Ciavarella in record numbers.”

  Long meetings were held at Juvenile Law Center offices in Philadelphia during the winter of 2007–2008. The organization’s leadership was outraged by the idea that what happened to Hillary and Jessica, and it seemed to hundreds of others, could occur in the year 2007 in the United States of America in a state like Pennsylvania, which was known for a progressive and compassionate juvenile justice system. It was fully forty years after the Gault decision gave juvenile defendants a constitutional right to legal counsel. Yet here was a rogue judge routinely trampling on the rights of children. What to do?

  The customary avenue for JLC legal actions was to go into federal court and raise civil rights issues on behalf of the juveniles. But this issue was unprecedented and seemed to call for a departure from the usual. One practical matter that made this case different was that two groups who usually welcome Juvenile Law Center with open arms—probation officers and public defenders—were being uncooperative and indeed were part of the problem here rather than an aid to the solution.

  At this point, Juvenile Law Center attorneys believed that hundreds of kids had been placed by Ciavarella without being advised of their right to counsel and without being advised of the consequences of pleading guilty as explicitly required by the Pennsylvania Supreme Court’s 2005 rules. What Juvenile Law Center needed was some means of identifying these defendants so their adjudications could be vacated and the records expunged.

  Marsha Levick had a long-standing fascination with what she called “obscure writs”—meaning little-used legal devices that went to the heart of the legal system and often had their roots in old English common law. One of these time-honored devices was a King’s Bench petition, which in Pennsylvania allowed the state Supreme Court to vacate the decisions of lower courts in extraordinary circumstances where the interest of justice overrode normal procedures. The center studied a 2005 case in which the King’s Bench device was used successfully in a case involving an art gallery.

  After weeks of discussion, a decision was reached. JLC would ask the Pennsylvania Supreme Court to exercise its King’s Bench powers, take immediate jurisdiction, and issue an order “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.” With Hillary Transue and Jessica Van Reeth as lead petitioners, Juvenile Law Center filed suit on April 29, 2008, asking the state’s highest court to exercise its “King’s Bench Power or Power of Extraordinary Jurisdiction.”

  The petition charged that inordinate numbers of youths were unrepresented because Ciavarella had been routinely violating Rule 152 for two and a half years by failing to advise juvenile defendants of their right to counsel. It asked that the Luzerne County Court be ordered to identify every case since October 1, 2005 (the effective date of Rule 152), in which the child defendant did not have an attorney. These child defendants should have their punishments vacated and their records expunged. JLC still believed there were several hundred of these cases to be nullified.

  The petition said about half of all juveniles who came before Ciavarella in 2005 and 2006 did not have lawyers—nearly ten times the statewide rate. And of these unrepresented children, 60 percent of them received punishments that involved being placed away from their homes. Joining JLC in the lawsuit as friends of the court were the State Attorney General’s Office and the Pennsylvania Department of Public Welfare, whose chief counsel alleged: “The practices in Luzerne County are likely having a harmful effect on the court-involved juveniles, their families and, in turn, the Luzerne County community.”

  Ciavarella’s immediate reaction was anger. He told the Citizens’ Voice that all juveniles were informed of their rights in his court. “I don’t have an obligation to get them a lawyer. That’s their business. I don’t know why that percentage is what it is. I am not going to spoon-feed people.” He said his sentences were nearly always merely affirmations of recommendations by the county probation department, and that neither the general public nor Juvenile Law Center understood how the system worked. “I don’t make the decision that a child gets placed. I just affirm the decision that a child gets placed.”

  However, three weeks later Ciavarella changed his tune and resigned as juvenile court judge, though he remained on the bench. Now well aware that he was under an intense federal investigation, Ciavarella claimed he was stepping down for the good of the court: “The focus is no longer on the juveniles, the focus is on the judge and that’s just not right. It’s a treatment court, it’s a court where you’re trying to help kids, not trying to hurt kids, and the focus is no longer on helping the child, the focus is on me, and that’s not a good thing in any treatment facility.”

  That same day he telephoned Miller-Wilson in Philadelphia and barked, “Okay, I’m off the bench. What the hell do you want from me now? Why are you breaking my balls?” Miller-Wilson hung up.

  Ciavarella’s exit prompted Luzerne County District Attorney Jacqueline Musto Carroll to announce her opposition to Juvenile Law Center’s petition, contending it was moot now that Ciavarella was no longer on the bench. Musto Carroll also challenged the accuracy of the statistics from the Juvenile Court Judges Commission and denied there was any wholesale violation of children’s rights in the court. She did not, however, address the issue of all the children who had improper criminal records as a result of Ciavarella’s actions and were having trouble getting jobs, getting into college, getting into the
military, and otherwise carrying on with their lives. It was not a moot point for them.

  8

  DISGRACE AND INFAMY

  As soon as Rob Mericle heard that Mary Ciavarella, the mother of his good friend Mark Ciavarella, was ill and hospitalized, he went to the judge’s chambers and was ushered into his office. “Hi, Mark,” he began in a voice heavy with concern and sadness. But Ciavarella pressed a cautionary finger to his lips, sat down at his desk, took a sheet of paper from a drawer, and pushed it across the desktop. The note said, “Wired? Yes. No. Circle One.” Mericle, astonished and bewildered, circled “No.” Still silent, Ciavarella gestured him into the adjoining courtroom, which was empty. They sat at a table. Still taken aback by the note, Mericle was staggered by what came next.

  Ciavarella informed him that a federal grand jury was investigating the financing of the PA Child Care and Western PA Child Care facilities and that there might be “a problem” with the $2.1 million Mericle had paid in three finder’s fees. When Mericle interjected that the payments were legitimate business transactions, like hundreds of other similar commissions he had paid out over the years, the judge said there was a problem if the money had been first paid to Robert Powell because that would show an attempt to conceal the true recipients of the money, the two judges. Ciavarella said he knew he was vulnerable, but he was not sure how vulnerable he was. “If the money went from you to me, I could get a slap on the wrist. But if it went from you, to Bob Powell, to me, I could go to jail,” Ciavarella said. The judge then asked his friend to go back to his office and “review” the finder’s fee documents to be sure that the payments did not go through Powell. Ciavarella, of course, knew very well that the money had gone through Powell because it was he who had requested that the payments be made that way. Nevertheless, as Mericle was leaving, Ciavarella said, “Don’t lie to the FBI and don’t obstruct justice.”