A Criminal Law Tale
Blazing new trails in corruption: judges who murder justice
Two close friends and Pennsylvania juvenile court judges who shared a very stern sense of justice for juveniles who appeared before them, pleaded guilty in federal district court to wire fraud and conspiracy for a kickback scheme that enriched them by $2.6 million from two private Companies that operated costly juvenile detention centers. The judges had organized and implemented a corrupt scheme from 2002 until 2008 that resulted in detaining juvenile defendants at the Company centers at a rate two and a half times the state rate. Kids for cash! The detained juveniles included many without prior records who faced very minor charges and who were detained even against the pleas of prosecutors, probation officers and defense lawyers.
To implement their scheme begun in December 1982, they first closed the existing county-operated juvenile-detention facility, claiming that it was inadequate and that the county had no alternative but to utilize the private detention centers operated by PA Child Care and Western PA Child Care. Since one of the judges was the Court President, he controlled the budget and had the power to do so. The owner of one of the detention centers, a friend of one of the judges who vacationed with them in Florida, complained (whined) that he too was a victim of the judges, only submitting to their demands for money. But over the years he apparently never complained to prosecutors about the judges’ solicitation of payments? Nor apparently did he consult his lawyer who would then be oath-and-ethics bound to report the solicitations to prosecutors? Prosecutors report that their investigation is continuing.
A juvenile’s right to counsel
While the United States Supreme Court established the right to counsel for children for juveniles in 1967, Pennsylvania, and twenty other states, allow the children to waive their right, and about half of the children sentenced in the scheme waived it. Some parents said that when they requested that counsel be appointed for their children, they were told that it would take weeks or even months to do so and that their children would meanwhile stay in detention. The county Public Defender had one defender assigned to the juvenile court that processes 1200 cases annually.
Official and other responses
After an inquiry by a senior judge appointed by the Pennsylvania Supreme Court to determine what should be done with the thousands of juveniles sentenced since the conspiracy began, the Pennsylvania Supreme Court ordered that 2,500 juveniles sentenced by Judge Ciavarella be cleared. A private lawyer representing several hundred families in a class-action against the two judges said: “At the hands of two grossly corrupt judges and several conspirators, hundreds of Pennsylvania children, their families and loved ones, were victimized and their civil rights were violated…It is our intent to make sure that the system rights this terrible injustice and holds those responsible accountable.” The Chair of the State Senate Judiciary Committee plans to hold a hearing to determine how best to help the children and their families. In addition to eighty-seven months of imprisonment, the two corrupt judges will lose their judgeships, be disbarred, forfeit their state pensions, and have extensive new careers while in prison and perhaps afterwards as the subject of examinations before trial in civil suits and witnesses in the later civil trials for damages. Their assets in cash, bank and other accounts, are likely to be forfeited.
Justice in Judge Ciavarella’s Court: one example
In a sworn affidavit, a mother of a fourteen-year-old scheduled for an appearance before Judge Mark Ciavarella, one of the two judges, detailed how she contacted a lawyer to represent her son. After inquiring about the name of the judge assigned to the case, the lawyer told the mother that “it would be a waste of money to hire him.” When the mother and son entered the court, “a woman [apparently a court clerk] who sat behind a desk…asked me to sign a form waiving [her son’s] right to any attorney.” When the mother told her that she wanted, but could not afford, a lawyer, the woman “told us that she could place [her son] on a long waiting list for a public defender…that it would take six to eight weeks for [her son’s] case to be assigned to a public defender, and added that [her son} would be held in detention during that time.” The mother then signed the waiver form.
At the adjudicatory hearing, the judge did not advise the boy of his rights and asked a few questions about his offense. The hearing lasted only a few minutes and the Judge then ordered the boy to be committed “indefinitely.” The boy was “shackled and led out of the court room. The mother was “not allowed to say goodbye to him…I left the courtroom crying hysterically…I was also furious that [her son as a first time offender] received such a harsh punishment for a misdemeanor” [stealing change from a few cars].
The local newspapers and the Juvenile Law Center of Philadelphia
Prior to the federal charges, local newspapers had criticized Judge Mark Ciavarella’s adjudicating and sentencing of juveniles in his court.
One editorial in the timesleader.com, dated May 11th, 2008 and entitled “Juvenile court judge facing serious questions,” noted that the “Juvenile Court Judges Commission indicate that Luzerne County’s out-of-home placement rate was about 2 [plus] times the state average” in two recent years, and that the “state Department of Public Welfare…confirmed it will file a legal brief supporting an earlier effort to overturn hundreds of Lucerne County juvenile cases….” A Department spokesman said that “[w]e do not regularly monitor placement rates of delinquent youth, but we have been aware for some time that Lucerne County has an unusually high placement rate.” The editorial concluded: “No lawyer, no luck, seems to be the pattern here in Luzerne County.” An editorial in “The Times Tribune” on May 15th, 2008 reported that a petition filed by the Juvenile Law enter of Philadelphia and supported by the state Department of Public Welfare claims that Judge Ciavarella took “just 90 seconds per case” and that he “routinely failed to advise [children and parents] of the child’s rights.” The Department reported that “more then 1,100 defendants appeared without counsel in 2005 and 2006.”
Probation officials suspected wrongdoing since their recommendations for less-then-confinement sentences were routinely ignored. Other critics of the sweetheart deal with the private detention facility owned by a friend of one of the judges, including a county judge, the county controller, and a county commissioner, were all silenced or ignored. A courthouse worker commented that “everyone began to assume that the judges had some vested interest in the private center because they were pushing it so doggedly.”
Comment
Thank God for the Juvenile Law Center of Philadelphia, the local newspapers, and the state Department of Public Welfare. But where were the local bar association, the honest county judges as a group, the prosecutors, the Supreme Court of Pennsylvania, and other public and private watchdogs.
Of course, the independence of judges is vital to our system of separation of powers, but this independence is to assure justice and integrity rather than to insulate the appalling injustice and dishonesty exemplified by these two judges. There were bright red flags here for years and yet the dastardly scheme continued. Is it because so many of the children were from poor families — over half had no lawyers? Or is it too that there is an embedded mutual protection society among local judges, elected officials and the owners of the private detention facilities — “Don’t bother me and I won’t bother you.”
While money corruption has a long tradition among a slice of judges in adult courts, this systematic looting of justice and integrity to the detriment of thousands of juveniles and their families blazes new chapters in a very sad history. Woe to those who deliberately harm children to line their pockets!
Two related points are necessary. First, the United States leads the world in incarcerating over two million people and the private for-profit prison industry is burgeoning in size. Prosecutors should be aware that the shocking corruption of the two Pennsylvania judges may well not be singular and limited to Lucerne County.
Second, judges, like prosecutors, police, elected and appointed officials, should not automatically deserve respect in a democratic society. They should earn it. As to police, for example, the lazy, disrespectful, incompetent, racist police officer deserves no respect at all, but the energetic, conscientious, respectful, competent officer deserves much respect: he/she is providing an essential democratic police service to our people. As to judges, an excerpt from my Learning Legal Reasoning (p. 124-125) is relevant. It is based primarily on my experience in trying about one thousand cases before many different trial judges and arguing about one hundred fifty cases in various appellate courts.
These judges deserve no respect at all
The trial judge [should] seeks to avoid the negative ideal that lawyers and witnesses often confront and that destroys any chance for fairness: i.e., the judge who in composite summons, relentlessly practices and cultivates his bad self every day; who does not listen attentively to anyone; who has fixed ideas about human behavior in general and behavior in specific situations that he/she automatically applies; who has conscious and below-conscious biases and stereotypes about groups of people rooted in racial, gender, class, ethnic, religious and other differences; and who then transforms the actual witnesses before him into such exemplars; who collectively is so indolent, egomaniacal, mean-spirited, vindictive, sadistic, neurotic or worse that he is preoccupied with venting his own urgent emotional tumults and who therefore has trouble concentrating on the controversy he is deciding.
These judges deserve deep respect
In stark contrast, the ideal judge seeks concrete fairness in each case. Indeed, such a judge personifies a sense of fairness and openness to the parties and their witnesses. She does not seek to apply a theory of justice but rather an earnest and transparent sense of fairness. She struggles to suspend belief against relevant stereotypes, often derived from youthful socialization and rooted in class, racial, ethnic, religious and gender beliefs. She listens carefully and openly and sees facts as tokens of meaning. She immerses herself in the facts and their meaning and rejects aloofness and separation: There is no looking through a plate glass window at the parties and their claims. All human faculties are brought to bear, including even limited, evidence-based imagination to gain insight into the relevant world of each party as it is manifested in the micro incident at stake…. She insistently seeks justice in the parade of cases that come before her.
She looks to relevant rules for guidance but realizes that the trial judge’s (or jury’s) finding of fact is crucial since it controls which rules apply and do not apply. She recognizes the need for choice: there is always more than one rule, one approach that could apply; she seeks to avoid evasion and denial, including hiding out in technical formulas. When a surge of emotion is triggered in the judge by testimony or other events at a trial or hearing, she seizes upon that surge as an invitation to understand its power within herself so that the emotion does not blind or truncate reaction and assessment. “She thus seeks,” in Gadamer’s words, “to grasp the ‘circumstances’ in their infinite variety.” It’s all about practical reasoning to enable practical judgment….
Conclusion
The killers of justice are not just the crooked judges. Indeed, these other killers of justice far outnumber the crooked judges. And all the local officials, judges, bar associations and other enablers who did nothing are moral accomplices. |
