Kids for Cash Page 20

  It’s been a good beginning for the defense. If any of the jurors thought Powell left the courtroom last week with a halo, it’s no longer there.

  Day Seven

  Ruzzo stands, buttons his jacket, and clears this throat. “Your Honor, we call Mark Ciavarella.” His voice is limp, without intonation, as though he is reciting the alphabet. As the defendant walks to the witness chair, his wife Cindy replaces him at the defense table. After Ciavarella swears to tell the whole truth, Ruzzo says, “Mr. Ciavarella, I will ask you to state your name.”

  “Good morning.” Ciavarella says looking directly at the jurors, launching a smile and keeping it afloat. “My name is Mark Ciavarella. I am sixty-one years old, former judge of Luzerne County Court of Common Pleas.”

  Ruzzo interjects: “And I will take the liberty of calling you Mark. I think I earned that privilege over the last thirty, thirty-five years.”

  Ciavarella gives Ruzzo a one-ha laugh, smiles faintly, and nods his head in agreement. “Absolutely.”

  “Tell us about your family background so the jury will get a picture of you.”

  “Sure. I was born in the east end section of Wilkes-Barre, predominantly Irish section of town. I lived on a little street called Hillard Street. To show you how Irish it was, nineteen O’Brien kids were living on that street. The only way that I think my father was allowed in the neighborhood was—obviously his last name is Ciavarella—was if my mother was Irish and my grandfather owned the home my father bought.” In a well-rehearsed recitation, Ciavarella rifles through the closets and drawers of his childhood memories. “It was a great neighborhood to grow up in, just a wonderful place to be raised. Everybody was very close. Every door was open in the neighborhood. You were allowed to go in and out of people’s houses. Everybody looked out for everybody.” He looks at the jury wistfully. “My dad, he was a—worked in Stegmeier Brewery. He worked at Stegmeier’s from roughly 1946 until they closed in 1973. After Stegmeier’s closed, he went to work for the street department.” Ciavarella is turned in his chair so he faces the jury directly. Often his eyes go wide with his recollections. “We lived in a little house, three rooms down, three rooms up and bathroom on the second floor. I was the middle child. I had an older sister and younger sister.” He tries to blink sincerity into his words.

  Ciavarella tells the jury about his college and law school days, his marriage, his children and grandchildren. When Ruzzo asks him what he’s been doing since he stepped down as judge two years ago, he says he first served as a babysitter for his granddaughter while getting his commercial driver’s license. He took a job driving a truck in northern Pennsylvania, but this didn’t work out because the owner was reluctant to entrust him with an expensive vehicle. “Then I came back obviously without a job. And a friend called me and asked me if I wanted to paint apartments. I gladly said yes. I went to an apartment building he owned. So for about three or four weeks, I painted apartments and also delivered flowers. I used to get in maybe twenty-five to thirty hours a week.” Several jurors foreheads have sympathy lines, and Ciavarella seems encouraged and continues his riches-to-rags story. “And eventually a friend of mine called me and asked me if I would be interested in a job that paid a little more and would give me more hours. That was with a cleaning company. I said, yes, I will do anything, didn’t matter to me. I just wanted a job, wanted to be able to provide for me and my wife. And I went to the cleaning company. I began working there. I stripped floors, waxed floors, cleaning offices, cleaned bathrooms, run vacuum cleaners, dust, mop, whatever the company needed, that’s what I did. And I would get in approximately forty hours a week, which is good. And I was able to provide a little bit for me and Cindy to help pay the bills.”

  Ciavarella says that soon after he became juvenile court judge, he visited the existing juvenile detention facility on River Street. “When I walked through the front door, the first thing that I noticed was that the place absolutely reeked. There was no ventilation. The building was old. It was decrepit. And the probation officers—their offices were the old cells. It used to be a women’s jail facility. And the probation officers were meeting with parents, children and anybody else that they had to meet with in an old jail cell. When I walked through the facility back into the kitchen area, the kitchen area consisted of a kitchen table that we would have in our kitchen. It had a stove with four burners, an oven. And lunch that day was hot dogs and beans. They took me on a tour of the facility. The facility was in deplorable condition.” Ciavarella’s eyebrows descend and nearly unite in disgust. “Ventilation was terrible. The place needed to be painted. The plumbing wasn’t adequate. The place had two showers. The place had three toilets. It just shocked me as to how bad this place really was. When I walked out of that building on that day, the only thing I can think of was how I would feel if my kids—one of my kids had to be placed into that facility. And because of that feeling, I decided right then and there that these children—these children needed a better place to be housed. They needed a better place to be detained. It just wasn’t a type of facility that we should be putting children in.”

  But Ciavarella laments that he got nowhere in his attempts to persuade county officials to build a new facility, and finally he enlisted the help of Conahan to find private sources to build a for-profit center. He is animated in his earnestness and outrage, looking directly at the jurors, placing his right hand over his heart, jabbing with his finger for emphasis. He introduces his justifications with phrases like “I truly” and “Just so the record is clear.” Throughout most of his ninety-minute direct testimony with Ruzzo, Ciavarella appears confident, sometimes even cocksure. A few attempts at lightheartedness fail. He tells the jury that he and his wife disagreed on a Florida condo. “I wanted to be on a golf course. Cindy wanted to be on the water. So the joke was that we’ll get a place on a water hazard on a golf course.” His mouth crevices into a chuckle, but the jury sits stonily, faces empty of sympathy and judgment. He admits filing false tax returns, and he says he should have recused himself from hearing cases involving Powell and Mericle. He looks to his wife at the defense table, and his children in the first row of the spectator’s area and says, “The thing that bothers me is not how it hurt me, but how it hurt my family.” Several times Ciavarella shrugs as though to say he can’t believe he’s here and can’t understand why.

  Ciavarella’s aplomb quickly vanishes under cross-examination from Assistant U.S. Attorney William Houser who, unlike any previous interrogators, has a microphone clipped to his red-and-black striped tie that allows him to move freely about the courtroom rather than stand at the podium. A fifty-two-year-old career prosecutor, Houser is angular, marathon-lean, as he ranges back and forth from the jury box to the prosecution table to the witness. He keeps his hands clasped behind his back, and sometimes asks a question with his back to Ciavarella, then whirls and waits for an answer, alert as an exclamation point. Ciavarella now is avoiding eye contact with the jury. Whenever Houser wants to call the jurors’ attention to a response, he pauses, walks over to the prosecutors’ table, and sips from a bottle of spring water.

  Ciavarella says when Mericle offered him the first finder’s fee of $997,600, he assumed it was perfectly legal: “I never considered the money Rob Mericle paid to me was illegal. Never in my wildest dreams did I consider that money to be a kickback.”

  Houser pauses for dramatic effect, then asks, “Who told you that was legal money?”

  “Rob Mericle.”

  “Anybody else?”

  “No.”

  Houser looks to the ceiling and reminds the jury that Mericle is not an attorney and, indeed, Ciavarella had been Mericle’s lawyer. “When did you start to turn to Rob Mericle to give you legal advice?” Houser asks. Ciavarella licks his lips and answers lamely, but the question itself is devastating to the defense. Houser is sipping his spring water.

  Using charts, Houser runs through the intricate money-laundering web the two judges used to conceal the payments they rec
eived from Mericle and Powell. The questions come in crisp bites. “Every penny of that money, you and Michael Conahan took steps to conceal,” Houser says, facing Ciavarella directly, “but you thought it was legal money?” Ciavarella says he did and reiterates his insistence that he hid the payments and did not report them on his income tax returns as a way of avoiding public embarrassment rather than to conceal a crime: “I just wanted to avoid all this. How’d I do?” He spreads his hands and looks around in mock irony. There’s not a trace of a smile in the jury box, and juror no. 6 fixes Ciavarella in the crosshairs of her glare.

  As a way of suggesting one reason that the former judge chose not to question the legality of the finder’s fee, Houser introduces exhibits of bank account and credit card statements showing that the Ciavarellas were massively in debt just before getting the money from Mericle. When the finder’s fee money started flowing in 2003, Ciavarella immediately used $310,000 of it to pay off debts, mostly credit cards. Much of the credit card debt involved cash advances. The witness, as well as his wife at the defense table, are uneasy and fidgeting. Houser notes that at the end of 2003, Ciavarella had only about $4,000 in the bank. Ciavarella, whose annual judicial salary was $158,000, concedes that he hadn’t been “living within my means.”

  And just in case the jury missed his point, when Ruzzo objects and asks Kosik why the financial information is relevant, Houser responds, “It shows motive for the crime, Judge.” Houser sips.

  Houser points out that Powell paid some $70,000 for “rent” on the judges’ Florida condo while it was still a shell without fixtures or furnishings and could not be used, and then he asks, “Would you consider that a sweetheart deal?” Ciavarella testifies he did not. He also denies that he ever received any of the $143,500 in cash that Jill Moran delivered to Conahan in Federal Express boxes in 2006. Thereupon Houser produces a receipt showing that Ciavarella had paid $27,000 in cash for a new Audi sedan not long after Moran handed the cash to Conahan. This leads Ciavarella to admit to a crime he isn’t even on trial for by saying he had other sources of ready cash at this time, including $20,000 he had raised while running for reelection as judge in 2005. State law forbids the use of campaign money for personal expenses.

  Houser grills the defendant for about three hours. Leaving the courthouse at the end of the day, Ciavarella is asked by a television reporter about his admissions on the witness stand. “You admit to what you did and fight like hell what you didn’t do,” he snaps.

  Day Eight

  Kosik, his face as stern as a book of rules, leans down and tells Zubrod and Flora to limit their closings to one hour. They nod in agreement. Each will take only forty-five minutes. Zubrod’s outfit is a careful orchestration of red (tie), white (shirt), and blue (suit). The part in his hair is as precise as the crease in his trousers. He stands, straight as a British brigadier, at the lectern placed right in front of the jury: “I said during the opening statements that this is an important case. It is important to Mr. Ciavarella.” Zubrod turns and looks at the defense table. Once again the morning sun has placed a rhomboid of light on Ciavarella’s face. Zubrod’s voice rises. “He’s been accused of some of the worst acts that could ever be laid at the door of a public official who is a judge. He stands accused of betraying the trust by the very people who elected him. It is charged that he sold himself and used his high office as a judge for personal gain. It is charged that he took money through bribes, kickbacks, rewards, and extortion for doing his job as a judge.

  “And in the process, as I mentioned to you in our first statement when I appeared before you a week and a half ago, that he hid that money, he turned his office into a cash cow, into a money-making machine, and he then hid that money to avoid public and law enforcement scrutiny. It is important for Mr. Ciavarella to have his day in court. I told you in the opening statements that it’s also important to the citizens of Luzerne County and the Commonwealth of Pennsylvania because their lives and the lives of their children should only be put in the hands of public officials who have honor and integrity as their lodestar, who wouldn’t think of taking a bribe or extortion or harming one of their own children. I told you that it was important to the victims in this case, particularly the victims that did not appear today but who appeared before Judge Ciavarella when he sat as juvenile court judge and used his pawns and schemes to enrich himself.” Laurene Transue arches two eyebrows that say, Finally, somebody mentioned the kids.

  Several jurors tilt their heads attentively, and Zubrod warms to his task. “Let’s look at a series of remarkable coincidences that surrounded Mark Ciavarella in this case. From the time Mark Ciavarella became a judge, became the juvenile court judge in 1996, he complained to anyone who would listen about the deplorable condition of the Luzerne County Youth Detention Center. He complained to the commissioners. He said it was unfit for children. We heard in court that it was dangerous to put children in there. Using the authority of his office, he set in motion the movement to build a new youth detention center.

  “A juvenile court judge has the absolute power to stop sending children to the county detention center, to send them instead to any contract facility that he chose. But he didn’t do a thing until January of 2003. Why? By July 2001 Robert Mericle had told Mark Ciavarella he had a whopping payday coming as a finder’s fee as a reward for getting the contract for building PA Child Care. Mark Ciavarella immediately went over to Michael Conahan and offered to split the money with him. Why? Because Mark Ciavarella needed the power and authority of the president judge to force the closure of the county-run facility.”

  Zubrod says that while Robert Mericle voluntarily paid the $2,086,000 to the judges, Robert Powell’s $733,500 in payments was extorted: “It was a demand. Powell was told explicitly if he didn’t make the payments he wouldn’t get the children sent to PA Child Care.” He sneaks a quick glance at this watch and then decides to conclude. “When I began this trial, I told you that Mark Ciavarella appears before you cloaked in the presumption of innocence, that he doesn’t have to prove a thing to you, that the burden is at all times upon the United States to prove every element beyond a reasonable doubt. Well, that cloak has been removed. That presumption is gone.”

  Flora, by contrast, is a study in disheveled sartorial nonchalance. Seizing on the prosecution’s unexplained failure to call Conahan to the witness stand, he introduces a conspiracy theory to strengthen Ciavarella’s claim that he was unaware of the $143,500 that was handed to Conahan in Federal Express boxes: “If there was something going on, I suggest to you it was a backroom deal going on between Robert Powell and Michael Conahan. Mark Ciavarella had no idea.”

  Calling his client “a lowly judge in one Pennsylvania county,” Flora dismisses as “ludicrous” the prosecution’s claim that Powell was the target of continued extortion by the judges: “I suggest he can’t be extorted. They want you to believe that Robert Powell is this meek man who couldn’t stand up to anybody. He was no man to be extorted under any circumstance. Robert Powell wants you to believe that Mark Ciavarella or Mike Conahan had the ability simply to pick up the phone and call somebody and all of a sudden he would just lose all this business, all these contracts would be canceled. He would be put out of business? That makes no sense under any circumstance.” Flora notes testimony of a warm relationship between Ciavarella, Powell, and Conahan. “He gives graduation presents to Mark Ciavarella’s children while he’s being extorted? It makes no sense.”

  Flora, widening his eyes to feign amazement that anyone could ever believe otherwise, says Mericle’s payments were legitimate business transactions rather than kickbacks. He says Ciavarella’s actions in promoting the construction of PA Child Care were not done in his official capacity as judge. “When someone is elected a judge, that doesn’t mean they’re a judge twenty-four hours a day, that they don’t have a private life, that they can’t refer someone for a job.

  “When he was elected in 1995, he had one motivation, one goal, one dream, and that motivatio
n, goal, and dream wasn’t dictated at that time by Robert Mericle or Robert Powell. They weren’t even heard of at that point. And that was to argue publicly for the development of a new juvenile detention facility to be owned by the county. That’s what he wanted. There was no conspiracy at that point. There was no claims of finder’s fees. None of that existed back then, and that is what he continually argued for and got nowhere.”

  Flora reminds the jury of testimony that the existing juvenile detention facility was rodent-infested. Indeed, Flora reasoned, far from victimizing the children who appeared before him in his courtroom, Ciavarella was acting in their best interests: “That request was pure. That request was innocent. There was no evil motive or intent in that purpose whatsoever.” Flora bristles at the injustice. Laurene Transue’s face balls up like a fist.

  Kosik’s charge to the jury is a two-and-a-half-hour monotonous monologue about burdens of proof. It covers eighty-six pages, and there are legal distinctions for each of the thirty-nine counts. About halfway through it, he interrupts himself with a coughing spasm that seems to rattle the windows. He turns to jurors apologetically and manages to wheeze, “I hope I make it.” The jury receives the case about 2:45 p.m. Kosik instructs them to begin by choosing a foreperson and organizing the documents they will need for their deliberations. Thirty minutes later, they tell Kosik they are organized and want to adjourn for the day. Kosik tells them to return at 8:30 tomorrow morning.

  There is a lone protester pacing the sidewalk around the federal building who identifies himself as Bill Clark. He is dressed as Chewbacca, the character in the Star Wars movies, and he’s carrying a handwritten sign: “Send Them on a Jet to Planet Jupiter Prison. I’m the Boss—Real Chewy Justice.” Clark says the costume is merely intended to attract attention: “If you just walk up and down in regular clothes, nobody cares.” He says he cannot forget the day several years ago that Ciavarella sentenced his sixteen-year-old son to six months in juvenile detention for a minor offense: “I was there when they had the kids with the orange jumpsuits and the belt, the hook, the cuffs, and the shackles, and he sent them right away. And I asked, ‘What’s going on here?’ and he told me I can’t talk. So now I’m talking.”