Kids for Cash Page 18

  This was too much for Judge William H. Platt, who ordered a new trial in the libel case and in a scorching opinion wrote: “Ciavarella’s admissions that he was a corrupt judge while presiding over the [libel] case, that he did not report outside income on the annual financial disclosure form for judges, that he lied when completing the form, and that he failed to properly report income on his tax returns are sufficient basis to conclude that he violated his fiduciary duty to the citizens of the Commonwealth of Pennsylvania, that he violated his duty to refrain from conduct that constituted a conflict of interest, and that he failed in his obligation to recuse himself in cases in which he had a conflict of interest. The conclusions alone are sufficient to create the appearance of impropriety to serve as judge for any matter in the case. Tellingly, former Judge Ciavarella, a witness called by [the plaintiff], was, because of his demeanor and lack of remorse, one of Citizens’ Voice’s best witnesses.”

  Platt was not the only judge troubled by Ciavarella’s testimony. For Edward M. Kosik, the federal judge who was weighing the plea bargain orchestrated between prosecutors and the two judges after months of negotiations, the testimony was the last straw. Kosik had watched with mounting distress as Ciavarella denied there was any connection between his decisions in juvenile cases and his huge payments from Powell and Mericle. Kosik also believed that Conahan was not cooperating as much as he should with federal authorities. On July 31, Kosik rejected the pleas because the two defendants had not accepted responsibility to a degree sufficient to justify the eighty-seven month sentence. Both the federal prosecutors and the judges’ defense lawyers tried to get Kosik to change his mind, but he refused. On August 24, Ciavarella and Conahan withdrew their guilty pleas and became innocent citizens. Al Flora, Ciavarella’s attorney, told reporters: “At this point, Mark Ciavarella has not been convicted of any crime. He is entitled to the full presumption of innocence provided under the Constitution of the United States. Now the next step has to be taken by the government and the case will proceed accordingly.”

  Powell pleaded guilty to charges of failing to report a felony and being an after-the-fact accessory to a tax-avoidance conspiracy. As part of his plea, he forfeited his ownership of the fifty-foot fishing yacht, Reel Justice, and his corporate jet. He also continued his cooperation with the U.S. Attorney’s Office. Mericle pleaded guilty to lying about the payoffs to the judges and failing to report the tax conspiracy. As part of the agreement, he contributed $2,150,000—the total of his finder’s fee payoffs to the judges—to be used for “programs for the health, safety and general welfare of the children of Luzerne County.” Two months after Kosik tossed out the plea bargains, federal authorities filed a forty-eight-count indictment charging Ciavarella and Conahan with racketeering, bribery, and extortion. Both pleaded not guilty, but Conahan would later change his plea to guilty.

  The opportunities presented by the scandal were not lost on the nation’s trial lawyers, who scented multiple opportunities in Luzerne County. Attorneys as far away as Florida took ads in the Times-Leader and the Citizens’ Voice soliciting clients. One local attorney represented himself as the “Juvenile Justice Center,” capitalizing on the now sterling reputation of Juvenile Law Center. Several class-action suits were quickly filed, including one by Juvenile Law Center. All charged that Ciavarella had done great harm to the young plaintiffs by incarcerating them improperly. As a result of their incarcerations, Juvenile Law Center argued, many of the teenagers suffered emotional damage, were unable to attend school, lost scholarships, were refused military enlistment, and attempted suicide. In addition, they and their parents were forced to pay probation fees, evaluation costs, and had their wages garnished by the court. Also named as defendants were Powell, Mericle, and various county officials. The suits were consolidated by the U.S. District Court. The suits asked that the youths, whose convictions had been invalidated as “a travesty of justice” by the state Supreme Court, be repaid for actual financial losses and as compensation for emotional suffering at the hands of the two judges and others involved in the scheme.

  However, U.S. District Judge A. Richard Caputo ruled that Ciavarella and Conahan could not be held liable for actions in their own courtrooms under the seventeenth-century doctrine of judicial immunity, which is designed to give judges freedom to rule without fear of legal retribution. But Caputo left the door open to liability for actions outside the courtroom, such as Conahan’s order that closed an existing county-owned juvenile center and the signing of the secret agreement guaranteeing that the child-defendants would be sent to the new private center. Caputo also held that county officials—commissioners, the District Attorney’s Office, the Probation Department, and the Public Defenders Office—were not liable in the civil action.

  As the details and scope of the massive injustices in Luzerne County came out in the spring of 2009, representatives of all three branches of state government met in Harrisburg and decided to propose legislation that would create an eleven-member study commission, the members of which would be appointed by the Governor’s Office, the Supreme Court, and the Legislature. Despite an ongoing state budget crisis, the Legislature acted with uncharacteristic swiftness and passed the bill six weeks after it was introduced.

  9

  THE TRIAL

  The trial of former Judge Mark Ciavarella on thirty-nine counts of racketeering, bribery, and extortion opened on February 7, 2011, two years and two weeks after the original charges were announced by the federal government. It was a cold day with bright sun that whitewashed the four-story limestone William J. Nealon Federal Building and U.S. Courthouse in Scranton. The proceeding took nine and a half days, including a day to select a jury and a day and a half for that jury to reach a verdict. In seven days of testimony, prosecutors presented twenty-four witnesses, and the defense called six, including Ciavarella. At the end, Ciavarella received what few if any of those who had come before his court ever received: a fair trial.

  Day One

  Laurene Transue arrives an hour early at the courthouse and stands outside the main entrance. It is meat-locker cold, and she is shivering. But she has waited a long time for this moment. It has been nearly four years since she collapsed in Mark Ciavarella’s courtroom as her daughter Hillary was whisked away by bailiffs and driven to the juvenile detention camp at Wind Gap for making fun of her assistant principal on MySpace. Hillary is now a college student in New Hampshire studying for a final, but Transue wants to be here to represent her. She is not alone. TV and radio reporters are buzzing around like pollinating bees. Three or four other parents of kids dispatched by Ciavarella show up, and a handful of curious citizens. They huddle against a stiff wind that has snow on its breath, and as they talk excitedly they exhale vapor from their mouths and nostrils. They all wait for one person. Ciavarella is finally going on trial for the PA Child Care scheme. Conahan has already pleaded guilty to similar charges, and it is widely supposed that he will testify against his co-conspirator.

  However courthouse officials, concerned about security, have allowed Ciavarella and his two attorneys to use a back door, and everyone at the front door eventually gives up and hurries inside, where jury selection is about to begin. Transue, disappointed at her failure to see Ciavarella but grateful for the sudden warmth, rides the elevator up to the second floor. The door opens with a ping, an electronic voice says “second floor,” Transue steps off—and almost bumps into Ciavarella. Panicked, she brushes by him, but after a few steps, she steels her nerves, does an about-face, and walks right past him. He gives her a smirk she has come to hate, says, “Hello,” and turns away. She doesn’t say anything. For the next two weeks, Transue will drive two hours a day from her home in White Haven to attend the trial. She sends text messages to Hillary during breaks in the testimony, and calls her with a report each night. “I want justice to come as swiftly for him as injustice came for Hillary and the thousands of other children and their families,” she says.

  A cathedral hush comes over
the courtroom and everyone stands for Judge Edward M. Kosik, a sprightly cricket of a man who used to be an avid runner and once trekked in the Himalayas. He has slowed his pace at the age of eighty-five, but he still strides out briskly, and today he is wearing treaded hiking shoes. Kosik was appointed to the federal bench by President Ronald Reagan in 1986 and has been a judge for forty years. Ciavarella’s defense team has argued that Kosik should not hear this case because he had shown bias in throwing out the guilty pleas of the two judges. But Kosik has refused to remove himself. Kosik settles in his high-backed chair, and jury selection begins. There is speculation that jury selection could take up to a week, but Kosik makes it clear he wants the jury in place by the end of the day.

  Ciavarella, natty in a gray suit, light blue shirt, and black and gray tie, is at a table flanked by his attorneys, Al Flora and William Ruzzo. Flora, the fifty-nine years old son of a Baltimore boxing promoter and a veteran defense attorney with highprofile cases in the Wilkes-Barre area, is a portly man, wearing a wrinkled herringbone sport coat. When making an argument in court, he tends to stand with his hands on his hips, arms akimbo. Ruzzo, sixty-seven, didn’t become a lawyer until he was nearly fifty years old. He said he was inspired to become a lawyer after being arrested for bookmaking and placed in a probation program. He is gaunt, needle-thin, and speaks out of the side of his mouth in a raspy voice. Flora and Ruzzo are both on leave from their part-time jobs as public defenders in Luzerne County. Flora was named by county commissioners to succeed Basil G. Russin as chief public defender, while Ruzzo was named an assistant public defender. These dual roles—public defenders and private attorneys for Ciavarella—drew some sharp criticism. One of the critics, George D. Mosee, the Philadelphia assistant district attorney, said, “If you are representing a judge who has been accused of violating the rights of juveniles, then you can’t be representing juveniles. It’s a very obvious conflict.”

  At the prosecution table is the lead U.S. attorney, Gordon Zubrow, who has been a federal prosecutor for thirty-one years and has special experience in cases involving organized crime and the sexual exploitation of children. Zubrow, with close-cropped hair, has a Clark Kent earnestness about him. His assistants are William Houser, a sixteen-year veteran of the U.S. Attorney’s Office, and Michael Consiglio, who became a federal prosecutor in 2008.

  Under Kosik’s relentless pressure on both sides, the prospective juror pool of ninety is whittled down to thirty-six and finally to sixteen: a panel of twelve jurors—six women and six men—plus four alternates. All day long, Kosik is a study in impatience, flicking with annoyance at an unruly lock of white hair, pushing his glasses up the bridge of his nose, licking his thumb as he rapidly turns pages in documents. Sometimes he calls the five attorneys to sidebar conferences, turning on a staticky white noise device intended to prevent everyone else in the courtroom from hearing the discussions. Sometimes the masking device is insufficient, as when Flora animatedly insists that he be allowed to question each prospective juror for possible bias. Kosik refuses and, in exasperation, finally says, “If I’m in error, I’m in error. I made my decision and will stand by my decision. Now let’s go!” Around 4 p.m., the group of sixteen is led to another courtroom for final instructions before being sent home for the day. Kosik says opening arguments will be held tomorrow.

  Day Two

  Ciavarella gets to courtroom 2 early, accompanied by his wife Cindy and two married daughters, Nicole Oravic and Lauren Stahl. Ciavarella exchanges hugs with two men who are standing in the rear, then makes his way to the defense table inside the rail. The three women sit in the front row. Near the bench, standing across from each other like captains at a football coin toss, the five lawyers shake hands and wish each other luck. The air is prickly with tension, which is broken when an unrobed Kosik sticks his head out the door and proclaims, “I’m a little late because I’ve just shoveled the snow off two driveways.” He is in his chair a few minutes later, and the jury is sworn in at 9:14 a.m.

  Zubrod goes first and outlines the government’s case. “Mark Ciavarella and his co-conspirator Michael Conahan were engaged in racketeering activity. In other words, they turned the Court of Common Pleas into a criminal enterprise, using their judicial positions to take bribes, kickbacks, using the mails and wires to put the criminal scheme into effect to extort money, using the power of their office to conceal the payments of bribes and kickbacks and extortion by making illegal payments look like business transactions with other individuals knowing that the money will eventually wind up in their pockets. Now, how did Mark Ciavarella and Michael Conahan abuse their positions of trust to enrich themselves in violation of law?” Zubrod points directly at Ciavarella and asks, “How did Mark Ciavarella turn the office of judge, the high office of judge, into a cash cow, into a moneymaking machine where he and Michael Conahan illegally took in millions of dollars and hid it from public scrutiny?” Ciavarella makes a temple of his fingers, but he appears aloof and emotionless.

  Here, Zubrod, using a chart, begins explaining the complicated money-laundering scheme. Kosik fidgets from the bench, seeming to be looking for a more comfortable portion of his anatomy to sit on. Finally, he leans toward his microphone: “Excuse me. I hate to interrupt you, but I’m not sure all of the jurors are seeing what you’re pointing to. And I’d appreciate it if you talk to the jurors instead of the exhibit.” Zubrod says, “Yes, sir, I will,” but he seems annoyed and thrown off stride. Several times Zubrod shows the jury unflattering photographs of Ciavarella and Conahan that look like police mug shots. Near the end of his forty-minute opening, Zubrod comes to one of the government’s key arguments—that the $733,500 Robert Powell paid to the judges was extortion: “Powell knew if he refused to pay, he wouldn’t get any children from Luzerne County. If he refused, he knew that Mark Ciavarella and Michael Conahan could ruin him. In addition to running PA Child Care and Western PA Child Care, Robert Powell was also a very active trial lawyer in Luzerne County and judges have enormous power in determining the outcome of a case. He paid the money.”

  In the defense opening, Ruzzo ridicules the idea that Ciavarella, who stands at five foot seven, could intimidate Powell: “Robert Powell is not a man to be extorted. He was a Division 1 basketball player, big guy, six-five, six-six, maybe 250, 240, athletic, assertive lawyer. He’s not a man to be easily extorted.” The money from Powell, Ruzzo avers, was for rent on the condominium owned by the judges’ wives. And he says Ciavarella did not realize that the $2,086,000 Robert Mericle paid him was either against the law or against judicial ethics, but instead thought it was a legitimate finder’s fee. Ruzzo describes the genesis of the first payment: “Bob Mericle comes in and says, ‘I’m going to take care of you, I am going to give you a finder’s fee.’ Mr. Ciavarella wasn’t even familiar with the process. He says, ‘What are you going to give me?’ He says, ‘I’m going to give you a finder’s fee for alerting me to the project. I’m going to take care of you.’ Mr. Ciavarella says, ‘Could you do that? Is it legal for you to do this?’ And Mericle says, ‘I do it all the time.’ Bob Mericle will come in here and tell you he did it all the time. And Mark Ciavarella is pleased, I’m going to get money, it’s a finder’s fee, it’s for recommending a friend, my friend is going to make money on the project. He’s going to cut me—he’s going to give me a finder’s fee.”

  “There’s no question he should have used better judgment on the bench,” Ruzzo concedes. Several jurors look puzzled, another skeptical. Laurene Transue rolls her eyes.

  Robert Mericle sits in the witness stand most of the afternoon. He says his testimony is part of a plea agreement that requires him to cooperate with prosecutors, who in return are to recommend he serve a reduced prison term for lying to federal authorities about the payments to Ciavarella. Asked what his company does, he says, “We construct buildings, we own buildings, we manage buildings.” He testifies he had known Ciavarella since he was sixteen, considers him a “big brother,” and gave Ciavarella ever-more-valuab
le Christmas presents after he became a judge. Mericle tells the jury he considered his initial $997,600 finder’s fee payments to Ciavarella a normal part of the real estate business. “If anybody deserved the referral fee, it was Mark.” He says he initially lied about these payments because “I did not want to be the person to lay Mark out.” Near the end of the day, Laurene Transue leans forward and taps a television courtroom sketch artist on the back. ‘You’ve got Ciavarella’s eyebrows all wrong,” she complains.

  Day Three

  Mericle’s matter-of-fact admission that at Christmas he gave Ciavarella $5,000 in cash in an envelope wrapped in a travel magazine leaves several jurors with little expressions of amazement flash frozen on their faces. Most of the jurors intently follow Mericle’s account of visiting Ciavarella and getting the first inkling of impending disaster: “It was November 1, 2007, and I went to his office. The first room that I walked into was dark. It was a typical business day. I was surprised. I went around the corner to where his office was, and Mark was standing behind his desk, and it was dimly lit. And I walked in, said, ‘Hi, Mark.’ And he said, ‘Hi,’ and put his finger to his lips as if to be quiet. He opened his desk drawer and sat down and wrote out in—with a pen—wired, yes, no, circle one.”