Oct. 30, 2009

HARRISBURG – Seeking to remedy what it deemed a “travesty of justice,” the state Supreme Court on Thursday vacated the convictions of all juveniles who appeared before former Judge Mark Ciavarella from 2003 to 2008 and barred retrials in all but a small portion of those cases.

The ruling essentially adopts in total the report submitted in August by Berks County Judge Arthur Grim, who was appointed to review all juvenile cases handled by Ciavarella after he and his co-defendant, former Judge Michael Conahan, pleaded guilty in February to corruption charges.

Ciavarella

The high court based its ruling on Ciavarella’s admission that he accepted millions of dollars from the owner and builder of two juvenile detention centers to which he sentenced youths, as well as his “systematic” deprivation of the constitutional rights of juveniles who appeared before him.

Federal prosecutors charged Ciavarella and Conahan in January with accepting more than $2.8 million in exchange for rulings that impacted the operation and construction of the two centers. They later withdrew their pleas and were indicted in September on 48 charges, including racketeering, bribery and wire fraud. Their trial is pending.

The Supreme Court said the fact the judges withdrew their pleas had no impact on its analysis of whether juvenile convictions should be overturned.

“The staggering financial payments made to Ciavarella and Conahan in connection with the Pa Child Care and Western Pa Child Care are well documented,” the court wrote, noting Ciavarella has admitted accepting the money in other court proceedings. “This court cannot have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially while he labored under the specter of his self-interested dealings with the facilities.”

The ruling, which impacts roughly 6,500 cases, is near complete victory for the Juvenile Law Center, a Philadelphia-based advocacy group that filed the petition that was the basis of Grim’s report.

“It’s an amazing decision by the court,” said Marsha Levick, legal director for the law center. “We have been seeking this relief for a long time. It is an exceptional result for these kids, and we absolutely applaud the Supreme Court.”

Ciavarella’s attorney, Al Flora, declined to comment on the ruling.

The high court found Ciavarella showed a “complete disregard for the constitutional rights of juveniles” by routinely allowing them to appear before him without an attorney. He also failed to properly question them to ensure they understood the ramifications of proceeding without counsel and of entering a guilty plea in lieu of going to trial, the court said.

The court noted it based its opinion, in part, on its own review of transcripts of hearings over which Ciavarella presided.

“The transcripts reveal a disturbing lack of fundamental process, inimical to any system of justice, and made even more grievous since these matters involved juveniles,” the court said.

Grim had also recommended that the Luzerne County District Attorney’s Office be barred from retrying all but a small portion of the cases based on his finding that Ciavarella engaged in intentional conduct meant to deprive juveniles of their rights. That triggered the double-jeopardy statute, which precludes prosecutors from trying a person twice for the same crime, Grim said.

The Supreme Court agreed Ciavarella knew he was violating the law and due process rights of juveniles, but it declined to adopt Grim’s reasoning regarding the double-jeopardy statute. The court instead said it was granting his recommendation against retrials in most cases “in the interest of justice.”

Grim recommended, and the high court agreed, that the only cases that are eligible for retrial involve those juveniles who were represented by counsel at their initial hearing and who are currently incarcerated, on probation or still owe fines or restitution. It’s not clear yet how many juveniles that involves, but attorneys involved with the case say they expect the figure to be 100 or fewer.

The court directed the District Attorney’s Office to identify which of those cases it would like to re-prosecute. Those juveniles will have the opportunity to challenge their retrial on double-jeopardy grounds. Grim will then make a determination in each individual case.

District Attorney Jacqueline Musto Carroll had agreed all convictions should be vacated, but had argued she should be given the chance, if she so chose, to re-try any or all of the cases.

Musto Carroll said Thursday she understands the court’s reasoning in limiting potential retrials to only those juveniles whose cases remain active within the juvenile system.

“They looked at the cases that were already adjudicated and found that justice would not be served by re-prosecuting a case that was already finished,” Musto Carroll said. “I can’t say I would have retried every single case that was heard by Ciavarella. We simply wanted the opportunity to review them and make that decision. The court made that decision for us for cases that are closed. They‘re still allowing us to go forward and examine cases that are open and take them before Judge Grim.”

Musto Carroll said she also took solace in the fact neither Grim nor the high court found there was any prosecutorial misconduct.

The District Attorney’s Office has come under fire for its failure to alert authorities to abuses of juveniles’ rights that were perpetrated under Ciavarella. Musto Carroll served as first assistant district attorney under David Lupas, now a county judge, for part of Ciavarella’s tenure.

“It’s extremely significant that there was absolutely no finding whatsoever of prosecutorial misconduct,” she said.

www.timesleader.com/news/All_Ciavarella_juvie_convictions_vacated_10-30-2009.html