Kids for Cash Page 21
Day Nine
The jury deliberates all day without a verdict. Ciavarella, his wife, and his family members spend part of the time in a witness waiting room just off the courtroom. But frequently he emerges and paces up and down the corridor that overlooks a glass-and-steel atrium connecting the original 1931 courthouse building to a 1999 annex. Occasionally he stops, leans over the railing, looks down to the lobby below while chatting with local reporters. “I’m just trying to stay calm and keep the butterflies out,” he tells them. Laurene Transue is also edgy: “I feel like a little kid on a long car ride. Are we there yet? Are we there yet?” About 4 p.m., Ciavarella leaves for the day through the front door, and as his transition lenses darken in their steel frames, he stops to talk to reporters. Someone asks Cindy Ciavarella how she’s doing. “I’m doing OK. Holding up. Supporting my husband. It’s the worst nightmare that you can ever imagine. It’s horrible for your family. I don’t wish it on anybody, that’s for sure.” The words knife through the air to Laurene Transue. She starts to speak, then decides not to and walks away. “It’s a nightmare for her!” she fumes. “Her husband gets to come home every night. He doesn’t go off to jail in handcuffs. Not yet.” But Cindy Ciavarella’s lament is carried on the evening news, and one of the viewers is Sandy Fonzo, who blames Ciavarella’s incarceration of her son as a juvenile for depression that eventually led to his suicide. That night, she can’t sleep for the rage.
Day Ten
Back in Wilkes-Barre, fifteen miles southwest of Scranton, the Circles on the Square delicatessen is offering a menu of Ciavarella-inspired sandwich specials that includes “Judging the Judges” (rosemary ham served on a hot wrap with melted provolone), “Fudging Ethical Bounds” (turkey breast on pumpernickel with Cheddar cheese), and “The Perp Wore Prada” (spiced, hot chicken breast with melted Jarlsberg cheese). The morning’s Times-Leader carries a story headlined, “Mayor’s Son Gets Teacher’s Position.” It’s buried on page three. Nothing new here.
The jury announces about 1:30 p.m. that it has reached a verdict. Within minutes the courtroom is filled with media people, spectators, and federal workers from other offices in the building. Ciavarella hugs his wife and walks to the defense table. The six men and six women of the jury take their seats. The room crackles with tension as the foreman hands the verdict slip to a clerk, who passes it up to Kosik. The judge licks his thumb as he pages through the document.
Finally, the clerk asks, “Ladies and gentlemen of the jury, have you reached a verdict?”
“Yes, we have,” replies the foreman.
“In the United States District Court for the Middle District of Pennsylvania. The United States of America v. Mark A. Ciavarella Jr. Criminal number 09-272. Verdict?”
“We, the jury, make the following findings in the above captioned matter: Count 1. Racketeering. On the charge of conducting and participating in the conduct of the affairs of an enterprise, through a pattern of racketeering activity, in violation of U.S. Code, we find the Defendant Mark A. Ciavarella Jr., guilty.” Ciavarella sits at the defense table, hands clasped in front of him on the defense table, face empty of emotion.
It’s a mixed verdict, and it takes nearly thirty minutes to complete the recitation. The jurors believed Mericle, but they did not believe Powell. They find Ciavarella guilty of multiple counts of racketeering, money laundering, conspiracy, and tax evasion for accepting the initial finder’s fee of $997,600 from Mericle. But they acquit him of bribery, extortion, and racketeering charges connected to Powell’s payments of $733,500 to the two former judges. The box score is that Ciavarella is guilty on twelve counts, not guilty on twenty-seven counts.
Houser asks Kosik to order Ciavarella into immediate detention: “This jury’s verdict demonstrates that Mr. Ciavarella is not a man of his word. Mr. Ciavarella has little to lose at this point by leaving, by fleeing, that his word to appear does not give rise to confidence on the part of the Government that he will appear. An ankle bracelet and home detention are not sufficient. Flight is as easy as cutting off the ankle bracelet and going.”
Ruzzo counters: “While Mr. Houser says Mr. Ciavarella has nothing to lose, I want you to take a look right there in that first row. He has daughters, his son was here, his son is in law school, his son-in-law, his family and friends have been here supporting him, Your Honor. This man would rather go on the gurney and get injected than leave his family.”
After fifteen minutes of wrangling, Kosik rules: “There’s no question that these are serious offenses. The attitude of the public has been apparent to all of us, whether we are associated with this case or just the ordinary citizen out on the street. But there’s a time for everything, and in this case, in light of the fact that this defendant has complied with all of the rules, we feel that there’s no reason to believe that he would flee, and to ensure that, in addition to the conditions that have been placed on him at this time, as well as the unsecured bail, we put the condition that he will be placed in the custody of his pregnant daughter. To that extent, he can leave.”
On the courthouse steps, Flora declares victory: “The jury rejected ninety-five percent of the government’s case. The government really got hurt today on this entire case, and it stands for the proposition of what Mark Ciavarella said all along was true: he never took a kickback, he never took a bribe, and he never extorted Robert Powell. This is a major victory for Mark Ciavarella. This was not a cash-for-kids case, and we hope somebody starts getting the message.”
His words ignite simmering rage in Sandy Fonzo, the mother of Edward, who committed suicide after a long history of criminal activity that began when he was sent away by Ciavarella on a drug paraphernalia charge at the age of seventeen. Pushing her way through the crowd, her forehead knotted in fury, Fonzo reaches Ciavarella, who is facing the other way: “Do you remember me? Do you remember my son? He was an all-star wrestler and he’s gone. He shot himself in the heart.” A sorrowful huskiness creeps into her voice. “You scumbag. You ruined my fucking life!” Ciavarella turns to face her, but already federal marshals are escorting her away. “He was my son. I don’t have kids now. I don’t have anything. I’m not a mother. I’m not anything.” Her eyes overflow, and her bottom lip quivers.
Ciavarella’s face is frozen into a mask of indifference: “I don’t know that lady. I don’t know what the facts and circumstances are concerning her son.” There is an I-don’t-give-a-shit shrug in his voice. Minutes later, Ciavarella tells reporters he feels vindicated by the verdict: “I absolutely never took a dime to send a kid anywhere. If that was the case that would have been in this trial. You don’t think the government would have put me on trial for that if that was the case? Never happened. Never, ever happened. This case was about extortions and kickbacks. That’s what this case was about, not kids for cash.”
Almost simultaneously, U.S. Attorney Peter J. Smith is deriding the claims of a victory for Ciavarella: “The defendant, and this should be noted by everyone, has been found guilty of racketeering, one of the most serious offenses in the criminal code, originally intended to be aimed at thugs and street criminals. It is no small thing, no right thing, for any public official at any level of the government to stand convicted by a jury of the crime of racketeering. I find it interesting that a man just convicted of racketeering is claiming any sort of victory out there today. I wonder what he would consider a defeat.”
Laurene Transue is nauseated by the fact that Ciavarella was allowed to leave the courtroom. “Do you understand how vastly different this is from what my daughter experienced?” she asks a TV journalist. “They put the handcuffs on my daughter before she left the courtroom. Boom! She disappeared. All I asked for was please, could I give her a hug. But no, they threatened to arrest me or put me in a psych ward.” She is also dismayed at the prosecution’s scanty presentation of how Ciavarella violated the rights of children: “Even if they could find him guilty of every single count, it still wouldn’t answer to what happened to these kids. It sti
ll wouldn’t be him saying, ‘I abused the children of Luzerne County.’ It’s not about for how long he’s going to jail; it’s about recognition of how he abused our children.”
Transue tells the Times-Leader, “I knew the main focus was not going to be the children, but it seems like they totally excluded them. That makes me feel very emotional.” At home that night, she realizes that her dream of seeing Ciavarella being hauled off in handcuffs, as Hillary had been, was not a realistic one. Most courtrooms don’t operate like that. At the insistence of her husband, they went out to dinner to celebrate. But they came home early because she didn’t feel there was anything to celebrate.
Another disgruntled onlooker is Erica Michaliga, whose son spent nearly five years in juvenile facilities after a run-in with Ciavarella when he was thirteen years old. As she watches Ciavarella walk away from the courthouse, she tells Terrie Morgan-Besecker she was stunned when the federal prosecutors failed to call a single one of Ciavarella’s child-victims: “Not only is this kids for cash, this is kids forgotten.”
But the prosecutors made a simple strategic decision: Rather than convolute an already convoluted case with evidence of their indictment’s claim that Ciavarella routinely sent kids to PA Child Care for minor offenses because of the kickbacks, they would keep it simple by focusing on the kickbacks. But money-laundering is a hard sell for any prosecutor. It’s all smoke and mirrors, and lacks a human dimension. Interviews with jurors in ensuing weeks showed that they were perplexed by the government’s failure to call Conahan as a witness. Conahan’s absence was so deep it became a presence over the two weeks of the trial. Smith would say only that the decisions about which witnesses to bring before the jury were based on “very good legal and evidentiary reasons.” All of the jurors came from outside Luzerne County, and at least two of them said they were unaware of the kids-for-cash aspect of the case until they saw post-trial news coverage.
Sentencing
The days and weeks and months passed. Winter released its grip on northeastern Pennsylvania, and bare limbs silver plated with freezing rain gave way to the slow, green fireworks of spring. Summer came early with humid, syrupy air. The temperature was near 100 degrees in Scranton on July 21 when a one-page order came down under Kosik’s signature, consisting of three energetic, incomprehensible loopings of black ink. “USA v. Mark A. Ciavarella. Criminal 09-272. The above case is listed for sentencing on Thursday, August 11, 2011, at 9:00 A.M.”
Flora, Ruzzo, and the prosecutors had sparred for months over an appropriate sentence. The stakes were high since the U.S. Probation Office determined that Ciavarella qualified for life imprisonment under federal sentencing guidelines. Zubrod contended that the children incarcerated by Ciavarella could be considered victims of his crimes since he failed to disclose that he had a conflict of interest in sending them away. The defense contended that the juveniles should not be part of the sentencing considerations since their client was found guilty of only twelve counts that had nothing to do with the kids-for-cash scheme. Indeed, they objected to the phrase itself because it had never been proven in federal court. They also argued for a lighter term because their client faced possible retaliation in prison.
Kosik, saying he wanted to avoid a “circus,” resisted entreaties that the former juvenile defendants and their parents be allowed to testify at the hearing. Instead, he said they could write letters. He received about two hundred letters from parents describing their shock at unexpectedly seeing their shackled children being hauled out of Ciavarella’s courtroom and the psychological harm their children suffered from detention. Flora said he had received more than one hundred letters from Ciavarella supporters, but his client told him not to submit them to the court. “He did not want the people who wrote the letters on his behalf to be subjected to public ridicule, condemnation, or scorn,” Flora explained.
But letter writing was not enough for some of the juveniles and their parents. Sandy Fonzo ordered one hundred T-shirts with photographs of her late son on the front and varied slogans (“How Much Is Your Child Worth?” and “Cash for Kids Is an American Travesty”) on the back. At a rally two days before the hearing, Fonzo distributed the shirts to the members of a support group she had organized. “Even if we can’t speak, Ciavarella will have to see us,” she said.
At 7 a.m., nearly two hours before the start of the hearing, a line that would build to nearly four hundred people forms outside Kosik’s courtroom. Not surprisingly, Laurene Transue is in it, but today she is joined by her daughter, Hillary, who is now twenty years old. Hillary worked until 3 p.m. the previous day at her job in Vermont, then drove more than four hundred miles, reaching home around 2 a.m. “I thought we were going to be late,” Laurene says, “but Leadfoot Hillary got us here on time.” Hillary is anxious about seeing Ciavarella, whom she last beheld four and a half years ago when he was the judge and she was the defendant. “No one is going to drag Ciavarella away from his screaming mother, as I was, and he won’t have to wonder what’s happening to him, as I did. I just want to see justice done here today,” she says.
The spectator area of the courtroom is quickly filled, and the overflow is directed to a second courtroom to view the proceedings on a live video feed. Cindy Ciavarella and her family are seated in the front row. Three rows back, wearing a T-shirt with her son’s picture, is Sandy Fonzo. She is surrounded by perhaps twenty-five others, all wearing the shirts. Standing every few feet all around the courtroom perimeter, trying to be vigilant and appear inconspicuous, are federal marshals. Sitting behind the Transues are Marsha Levick and Lourdes Rosado of Juvenile Law Center.
As Flora walks to the microphone, Laurene begins a nervous foot tapping that will occasionally abate, but never stop entirely, during the ninety-minute hearing. Flora says two reports—Judge Grim’s recommendation that all of Ciavarella’s cases be expunged and the report of a special study commission—should not be taken into consideration in arriving at a sentence. Zubrod, wearing a black bow tie he apparently thought better of when appearing before the jury at the trial, stands and points at Ciavarella: “He is not standing before you today to be sentenced for what he did to particular juveniles. He’s being sentenced today because he engaged in a racketeering activity in relation to his job that inevitably involved juveniles. In essence, it seems to me that Mr. Ciavarella’s argument is that, ‘I was not selling kids retail.’ And we agree with that. He was selling them wholesale.” Applause is mimed in the T-shirt brigade.
Zubrod makes more legal arguments, then suddenly Ciavarella stands: “Can I take the podium, Your Honor?” Kosik assents, and the defendant walks to the podium. “Your Honor, I’m going to read most of what I have to say because I don’t want to miss anything that I have to say and I don’t want to misstate anything that I have to say. Even though I have privately apologized to my family, I believe it is important to publicly apologize to my wife Cindy, children Lauren, Nicole, Marco, and their spouses and fiancée for the hurt and embarrassment I have caused them by my irresponsible acts. I will also thank them for standing by me at the most difficult time in my life. I will be remiss if I did not also express to my sisters Roseanne and Mary, my uncle Joe, my in-laws, Jerry and Helen, my brother-in-law and sister-in-law John and Debbie, and friends how sorry I am for the pain and hurt my conduct has caused them to endure.” Ciavarella continues, apologizing to the community, the Luzerne County bar, other judges, and probation officers. He labels himself a hypocrite who failed to practice what he preached. “I blame no one but myself for what happened.” Laurene is shaking her head, wondering about an apology to her and her daughter.
Then, without warning, Ciavarella launches an attack on Zubrod, whom he says unfairly labeled the case kids-for-cash: “Those three words made me the personification of evil. They made me the Antichrist and the devil. Those words caused hurt and agony for me and my family. They made me toxic and caused a public uproar the likes of which this community has never seen. He uttered those three words knowing ful
l well there was little or no evidence of me receiving a dime to send children into placement.”
Ciavarella calls Robert Powell “a liar and self-centered individual who would say and do anything to protect himself.” He insists there was no relationship between the payments and his adjudications: “There was no connection between the money I had received and the children I placed at PA Child Care. I tarnished the once-proud name of Ciavarella to the point where my son can’t even consider returning to this area to practice law. I lost my job, and I’m financially ruined. I am about to lose the physical presence of my family, a loss which is almost unbearable to shoulder. But I will never lose my will to fight against individuals who say I took cash to put children in placement when I never did. I was convicted of receiving a kickback for the construction of a building. The money was paid before the PA Child facility was even opened. This payment had nothing to do with the sending of the children to that facility.”
Kosik peers down, waits to be certain that Ciavarella has finished, then says, “I appreciate your remarks, but I have one question.”
“Sure.”
“You apologized to everybody except to those people that the Pennsylvania Supreme Court has said you denied rights when they appeared in your court. You probably don’t agree with the Supreme Court’s assessment, but that’s what the Supreme Court of Pennsylvania said, and that is a matter that this court has a right to take into consideration in assessing your character for sentencing purposes.”