Kids for Cash Page 19

  “And when after he wrote this down, did he show it to you?”

  “Yes, he did.”

  “How did you indicate?”

  “I circled no.”

  “After you circled no, what happened?”

  “He waved me to move into the courtroom, and we sat down at one of the tables in the courtroom.”

  “When you sat down at this table, what does Mark tell you?”

  “Mark told me that there was a grand jury investigation going on and that—I believe a secretary of Michael Conahan was already interviewed, and that he [Mark] might be in trouble and that he [Mark] needed to talk to me.”

  After four hours on the witness stand, Mericle comes across as a sympathetic, soft-spoken, almost contrite figure.

  Robert Powell, on the other hand, seems to displace a large portion of the room when he enters and sits in the witness chair. He is six foot six, with shoulders as broad as a buffalo’s. He is at least three times as big as Kosik, who jokingly asks if Powell was with the Pittsburgh Steelers. As an experienced trial lawyer, Powell is courtroom savvy, with a basso profundo voice, and he looks directly at the jury when he testifies. Under questioning from Zubrod, Powell recalls a meeting with Ciavarella and Conahan in the autumn of 2003 when he says he first learned that the judges also expected him, not just Mericle, to pay them.

  “I was called to a meeting at Judge Ciavarella’s chambers. Judge Conahan was there. And I was told specifically by Judge Ciavarella how well he thought the PA Child Care facility was doing financially and that it was now time for me to give him and Mike Conahan money. And I said, ‘Are you telling me that you guys blew through a million bucks already?’ And they both kind of laughed and said, ‘You guys are doing very, very well.’ Specifically, Judge Ciavarella had on a piece of paper some numbers written down on an account and said, ‘I know what’s going on up there, I know what’s happening, I want a part of it.’”

  “Do you know what the numbers represented?”

  “It represented his calculation of how many kids had been sent there.”

  “Sent by whom?”

  “By him and by others, other counties. So it was a rough calculation of approximately how many kids we had at the facility on a daily basis, what our basic costs would be, and how much was left over.”

  Powell says he protested that Ciavarella’s statistics were misleading because they failed to take into account large start-up costs associated with the new center. “Ciavarella was very adamant. He said he didn’t care, ‘I know what’s going on and I want to get paid.’” According to Powell, Conahan was less adamant, but he too insisted that Powell pay them money.

  Several times during Powell’s account of the meeting, Ciavarella, seated across the courtroom at the defense table, folds his arms, exhales in disgust, and shakes his head negatively.

  Powell describes how he paid the two judges $590,000 that was disguised as rental fees for the Florida condo owned by Barbara Conahan and Cindy Ciavarella. He says he only actually used the facility on two occasions, both in July, because when he asked for it during the winter it was never available. When Zubrod points out that the monthly checks often seemed to be paying for the same things with overlapping months, Powell explains: “There’s only so much you can write to make things up, and now it looks foolish.” He says part of this money was masked as rental for a boat slip that the judges didn’t even own: “This had nothing to do with my boat. They didn’t have a slip. I had to pay a real marina fee to keep my boat there. This was just another way to conceal the payments.”

  Courtroom technology is easing the prosecutors’ task of explaining complicated financial transactions to the jury. Gone are the days when attorneys would have to hand documents to jurors, who would then pass it around to each other. Here, the exhibits—checks, contracts, charts, and even handwritten notes—appear on monitors positioned between each pair of jurors. There are identical monitors at the prosecution and defense tables, and larger monitors on either side of the spectator gallery. On the other end of the technology scale, Laurene Transue has been taking extensive handwritten notes, scribbling furiously, filling notebooks with handwriting like unlaced shoes. She wants to get it all down. She doesn’t want to miss a word.

  Day Four

  As Powell returns to the witness chair, the morning sun angles through the window in a way that illuminates Ciavarella’s face at the defense table. Zubrod presses Powell on why he paid the phony condo rentals to the two judges: “What was the obligation? Why did you have to pay them now? What was the quid pro quo?”

  “It was extortion, it was a kickback. They wanted money because they said, ‘Look, you’re in this business, we helped you get into it, you’re making a lot of money, you’re going to give us some.’ It’s what it was, pure and simple. Mr. Zubrod, I wasn’t paying them for any services rendered, I was paying them because they demanded it in their position of authority and I was going to do it. They weren’t helping me run the business, they weren’t helping me in my law practice, they weren’t taking the calls, putting up with the press that was related to the running of the facility, it was pure and simple. They thought we were making money, they thought they were entitled to it because of their position of power and authority, and they wanted it. They had gotten used to, Mr. Zubrod, a lifestyle of two and a half million dollars by this time. I don’t know what their salaries exactly for judges were, but at $120,000 or whatever they were making, when you start to add two and a half million dollars to somebody’s appetite, the lion was out of the cage and I was the bait.”

  Zubrod asks Powell about Ruzzo’s comment in the defense opening that Powell was too big physically to be intimidated by Ciavarella and Conahan. “These were the two most powerful men in Luzerne County,” Powell scoffs. “They ran the show. I could have been Shaq [basketball player Shaquille O’Neal] and it wouldn’t have mattered. They knew politicians, and they knew mobsters, and they flaunted their relationships with both of them.”

  Powell describes trying to escape from the judges and their demands for more money with trips to Costa Rica and Italy. When they persisted, he decided to cooperate with federal authorities and wear a wire to a meeting with Ciavarella and Conahan. After a morning break, the prosecutors play the tape of the July 2008 conversation in the model for a townhouse complex called The Sanctuary. Zubrod frequently stops the tape to allow Powell to explain the meanings of certain statements. The tape records the trio devising the scheme they will use to defend themselves against the federal grand jury investigation of the PA Child Care and Western PA Child Care juvenile detention centers. They will discredit Mericle and Jill Moran, Powell’s law partner who saw him stuffing cash into Federal Express boxes and then delivered them to Conahan. When Powell warns that Moran is “off the fucking reservation,” Conahan says he will simply deny that she ever brought him the boxes. “The problem Jill has is she never gave me anything. If anything was given to her, she has it,” he says. They will stick with the tale that Powell’s payments were to rent the condo. “Listen,” says Conahan on the tape, “You paid me rent for my condo. You didn’t pay me to shut the juvenile detention center down or fix cases.”

  Flora, wearing a greenish tie that disagrees vehemently with his blue sport coat, begins his cross-examination of Powell by challenging the statement that Conahan and Ciavarella were the two most powerful public figures in Luzerne County. He runs through a list of offices—district attorney, county commissioner, State Police, state attorney general—and each time Powell responds that the judges were more powerful to him than these individuals. Finally, Flora gestures toward Zubrod and asks, “Is it your testimony, sir, that they were more powerful than the prosecutor sitting here at this table?”

  “No, he’s the only guy that scared them,” Powell shoots back.

  In this exchange, Flora is clearly the second-best attorney. He often frames a question that contains a statement and then asks, “Is that not correct?” Powell responds that it is not corre
ct and then amends the statement. Flora appears to be off balance, and his questions ramble and zigzag. At one point, Powell becomes hoarse and appears tired. He mistakenly talks about “putting the box into the cash.” But then he rallies. When Flora asks Powell why he stayed at the condo if he was being extorted by the judges, he answers as though explaining something obvious to a child: “That was part of the ruse here. If I didn’t use the condo and pay $590,000 it would have made no sense, and I would have put myself in that pickle. There was other places I would have preferred to have been than Florida in July, but to write those checks and say rent, rent, rent and not use the condo would have been doubly foolish on my part. It was foolish to do it, it would have been more stupid not to use it to say that I was there.”

  The cross-examination ends abruptly after one hour and twenty minutes. When Powell is excused by Kosik, he steps from the witness stand and stalks past the jury, out of the courtroom, looking like a man who has just lost his law license, is burdened with millions of dollars in debts, and faces jail for failing to report a felony and abetting tax evasion.

  The jurors, several of them sipping bottled water, are amused when FBI agent James Glenn recounts how he and a colleague were in a surveillance van that was spotted by Ciavarella during the taped conversation at the model unit. “We could actually hear him approaching, the footsteps, closer, closer to the van, grasping the handle of the front passenger door trying to get in. Moving around the van to the back door, trying to get in, the side door, to the front door, but he was unsuccessful. He returned to the area where Michael Conahan and Robert Powell were situated.”

  Patrick Owens, the former treasurer of Powell’s law firm, recounts writing and cashing sixteen separate checks, each for less than $10,000 to avoid scrutiny by the Internal Revenue Service, to come up with the $143,500 that Powell gave to the judges in 2006. According to Owens, Powell was normally very relaxed and easygoing around the office. “But during this time frame, he just became very short-tempered, demanding. He was acting paranoid. We had the building swept for listening devices at one point.”

  That set the stage for the day’s final witness—Jill A. Moran, Powell’s former law partner who transported the cash payments in Federal Express boxes to Conahan. She is a study in black—high-heeled black boots, black skirt, black top, black blazer, jet black hair. Moran says she didn’t realize what the boxes contained in the first two deliveries. But, her voice taut with melodrama, she depicts a scene in Powell’s private washroom before the third and final delivery: “Bob’s office has all windows around it, and the bathroom does not have any windows in it. He summoned me into the bathroom, and at that point, he began stuffing the FedEx box with banded bunches of money.”

  “This was cash he was stuffing in this box?”

  “Yes.”

  “What was Bob’s demeanor when he was doing this?”

  “He was very agitated, he was mumbling, he was, you know, saying certain things to me as he was putting the money in the boxes.”

  “What did Bob say?”

  “He made a comment, just mumbling as he was putting them in, just, Greedy, and then some expletives after that, and then he just kept saying, This is the last one, if anyone asks you, this is the last one.”

  “What did he do with the box, after it was all done being filled with cash?”

  “He sealed the box and he gave it to me, and he again told me to call Mike Conahan and to give the box to Mike Conahan.”

  “Did you do that?”

  “I did.”

  Day Five

  The day begins with a pretrial lightning bolt. The Citizens’ Voice, citing “an attorney familiar with the prosecution case,” reports that the feds will not call Conahan to testify. The source says Conahan is considered “too big a liability” as a witness. In pleading guilty to a racketeering charge in July 2010, Conahan was not required to agree to testify against Ciavarella, but Zubrod had said earlier that Conahan was willing to testify. Neither Zubrod nor Conahan’s attorney will comment. Laurene Transue is uneasy at the news.

  All week long, Flora has been increasingly dismayed by Kosik’s rulings, and the issue boils over when the defense attorney, as part of his ongoing attempt to discredit the idea that Powell was vulnerable as the judges’ extortion target, tries to question Moran about Powell’s political connections. Kosik leans forward. “Excuse me. What’s this got to do with this case? What’s this got to do with her direct examination?”

  Flora, a rosy spread of indignation flooding his face: “Your Honor, the Government has portrayed Robert Powell as a weak individual who had no one to turn to when this alleged extortion was taking place. We have every right to challenge this.”

  “You certainly have. But all she said was that there was a falling-out and he was very upset. That does not open the door for what you’re pursuing.”

  “Judge, I will note for the record that this is about the second or third time when you’ve raised objections to my question on your own, without any objection by the Government.”

  “You are an experienced defense counsel. Are you suggesting that a judge cannot intervene, if the evidence is not being presented according to the rules, even though there’s no objection to it?”

  “Yes, I am.”

  Kosik shoots Flora a look that could peel paint off a battleship: “I have a right to move this trial, whether the Government objects or not, and you don’t have a right to waste time in this trial, unless you’re pursuing an appropriate subject under the rules.”

  “In light of this Court’s remarks to me, Your Honor, I move for a mistrial at this point.”

  “Your motion is denied.” Kosik closes the subject and sits on the lid.

  Three attorneys who had appeared before Ciavarella in cases involving Powell or Mericle testify they were never advised of the financial relationship between the judge and the two men. They say if they had known of the connection, they would have asked Ciavarella to withdraw from hearing their cases. The day and the week end with testimony from two accountants and a bookkeeper who worked for Conahan and Ciavarella. Using the courtroom monitors, the prosecutors track the various payments involved in the money-laundering scheme.

  Day Six

  It’s Valentine’s Day, and five of the six women jurors appear in bright red tops. Kosik peers at them from the bench as they walk in, then surveys the rest of the courtroom and says, “Only the jury has dressed in the spirit of Valentine’s Day.”

  The next-to-last prosecution witness is Brian Berntson, a money-laundering expert from the Internal Revenue Service. Zubrod poses “a hypothetical question”—which is in fact the scheme used by Ciavarella, Conahan, Mericle, and Powell—and asks, “Would that be consistent with money-laundering?” Berntson says it would, but on cross-examination from Ruzzo he agrees that if the payments were legal—as the defense claims—it would not be money laundering. The twenty-fourth and final prosecution witness is another IRS agent, Ray Eppley, who testifies that between 2003 and 2006 Mark and Cindy Ciavarella under-reported their income by some $720,000 and should have paid an additional $231,000. Zubrod carefully takes Eppley through the four federal tax returns and asks each time if they were signed by the Ciavarellas “under penalty of perjury.” Each time Eppley says they were. Throughout most of the morning, Ciavarella has been looking toward the ceiling, boredom baked on his face, eyebrows arched in semipermanent superciliousness. Laurene Transue keeps looking at him with annoyance. “Are you kidding me?” she murmurs to no one in particular. “You’re on trial here. You’re accused of horrible crimes.”

  At 10:44 p.m., Zubrod says, “Your Honor, at this time the United States rests.” Transue is aghast. What about Hillary? What about all the kids? They were supposed to be the focus of this whole proceeding. They have not even been mentioned! This trial has been about a judge on the take, not about children being sent away when it was not in their best interest nor in the best interest of the entire community. Where was the outrage? She had
sat here for six days, waiting for validation of the injustices committed by Ciavarella and Conahan in pursuit of their own personal enrichment. What about all the probation officers and their boss, Sandra Brulo. Why weren’t they called to testify? This was called the “kids-for-cash” scandal, but nothing has been said about Ciavarella filling a private juvenile detention center by jailing kids on minor charges, denying their right to counsel, and pressuring probation officers to recommend harsh punishments. During a recess, she tells the Citizens’ Voice, “I’ve been at this trial every day, and I knew that the main focus was not going to be on the children, but what I’m surprised at right now is that it seems like it has been totally excluded from the trial. That makes me feel very emotional.” Zubrod’s boss, U.S. Attorney Peter J. Smith, who has attended the trial, declines to explain the prosecution’s strategy.

  The defense begins with three of Ciavarella’s family members—Brian Stahl, his son-in-law; Nicole Oravic, his daughter, and Marco Ciavarella, his son. They all attempt to discredit Powell’s critical assertion that he was extorted by the judges. Stahl says the relationship between Powell and his father-in-law was always “very cordial.” Oravic testifies that she worked for Powell’s law firm during part of the alleged extortion and Powell was always very complimentary about her father: “The way he spoke about my dad was with the utmost admiration and respect.” Son Marco remembers that the two men were neighbors and “very friendly,” often sharing drinks and cigars at the Ciavarellas’ home. During a recess, Ciavarella is asked about his son’s name. He warms to the question and becomes a stand-up comic: “While he was being conceived, Cindy kept saying, ‘Oh, Mark! Oh, Mark,’ and we got it backwards.” Laurene passes by right at the punch line and creases her brow in disapproval.

  The day’s last witness is a surprise—Gina Carrelli, a Hazleton restaurateur with political connections, who has been subpoenaed by Flora. She is clearly a reluctant witness. Swaying nervously in the chair, she tells the jury that she witnessed Powell giving two envelopes of cash to a prominent state official at the Hazleton airport in the fall of 2006. She declines to name the official. In his cross-examination, Consiglio starts a question with, “So you claim.” Carrelli snaps back at him, “Excuse me. I don’t claim anything. I’m here to tell the truth. It’s a fact, not a claim.”