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MCLE Self-Assessment Test

Could it happen here?

By Janice M. Brickley

In a case that captured the nation’s attention, a federal jury last month returned a verdict against a former Pennsylvania juvenile court judge charged with taking millions of dollars in kickbacks from the owner of for-profit juvenile detention facilities. Mark Ciavarella was convicted on 12 of 39 counts, including racketeering, racketeering conspiracy, mail fraud, money laundering conspiracy, conspiracy to defraud the U.S. and filing false tax returns. The jury also found that he must forfeit the $997,600 “finder’s fee” he received from the developers of private juvenile detention centers. Another former judge charged in the case, Michael T. Conahan, pleaded guilty to a single racketeering charge last year and is awaiting sentence.

The case, an alarming story of judicial corruption and failures throughout the justice system that lasted for years, should raise a question in the minds of Californians: Could it happen here?

The Pennsylvania Interbranch Commission on Juvenile Justice was created in 2009 to investigate the circumstances that led to the “kids for cash” scandal in Luzerne County. The commission’s final report, written in the captivating style of a John Grisham novel, was issued last May, after a thorough investigation and 11 days of hearings.

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Ciavarella (left) Conahan (right)

The two men involved in the scandal were charged with participating in a scheme in which Conahan, while presiding judge of Luzerne County, was instrumental in closing a county-run juvenile detention center and contracting with privately owned detention facilities for the placement of juvenile offenders. According to federal prosecutors, this arrangement and subsequent actions, including Ciavarella sentencing juvenile offenders to the facilities, resulted in the judges receiving more than $2 million in illegal payoffs from the owner and builder of the facilities.

While presiding over juvenile court, Ciavarella sentenced juvenile offenders to out-of-home placement at a far higher rate than any other county in the state, at the same time he was allegedly taking money from attorney and close friend Robert Powell, who owned the detention facilities. In a county with less than 3 percent of Pennsylvania’s population, Ciavarella was responsible for 22 percent of the state’s placements in 2003. Juveniles were often punished for minor offenses that would not normally result in detention. For example, a 13-year-old boy with no prior record spent 48 days in detention for throwing a piece of steak at his mother’s boyfriend during an argument. According to the report, Ciavarella ruled his court with an iron fist in a manner described as “Dickensian,” “harsh, autocratic and arbitrary.” His hard-line “zero-tolerance” stance often took the form of sentencing by formula rather than individual evaluation. 

In addition to his Draconian sentencing practices, Ciavarella routinely deprived juveniles of their constitutional right to counsel. As a result, the Pennsylvania Supreme Court vacated the adjudications of all juveniles who appeared before Ciavarella over a five-year period. 

Throughout its investigation, the Interbranch Commission asked why those who appeared frequently in Ciavarella’s court — district attorneys, public defenders, probation officers — did not question or report the apparent abuses that occurred regularly. The answers were many and varied — indifference, inexperience, ignorance, fear of retaliation and even complicity. 

Players in the juvenile justice system were not the only ones to drop the ball, according to the report. An anonymous complaint about Conahan lodged with the Pennsylvania Judicial Conduct Board, the agency responsible for investigating judicial misconduct, was not brought to the board’s attention for more than seven months. With specific cases and docket numbers, it alleged multiple incidents of misconduct by Conahan, including regularly presiding over cases in which Powell represented a litigant and assigning Powell’s cases to Ciavarella. When the complaint was finally placed on the board’s agenda, it was “tabled” because Conahan was expected to be a witness in an unrelated commission proceeding. No follow-up action was taken and the matter never again came before the board, whose chief counsel said it had “fallen through the cracks.” The complaint was not turned over to the federal authorities until almost a year and a half after it was submitted and only after a specific request by the federal prosecutor. The report attributes this devastating malfunction of the state’s judicial disciplinary agency, in large part, to deficiencies in the board’s operating procedures. 

The Interbranch Commission recommended a number of changes to the judicial disciplinary board’s operating procedures to avoid the failures that surfaced in the Luzerne County scandal. In order to avoid the chief counsel’s failure to give the board complete information, the commission recommended limiting the amount of discretion vested in the chief counsel and requiring that the board decide whether a complaint should be investigated, deferred or referred to prosecuting authorities. The commission also recommended the adoption of written rules for handling anonymous complaints and for referral of complaints to law enforcement agencies. 

Long before the Pennsylvania scandal, the California Commission on Judicial Performance enacted procedures to ensure that all complaints are promptly brought to its attention and that no complaint “falls through the cracks.” The commission is informed of every complaint received, including those that are anonymous. A complaint is not closed, deferred, investigated or referred to prosecuting authorities without the commission’s authorization; its policy is to review all new complaints within 60 days of receipt. In limited circumstances, usually when a court case is still pending before the judge, the commission may decide to temporarily remove a case from the active calendar. While its policy requires reporting on these matters every six months, in practice all deferred matters are reported on at each commission meeting, every six to seven weeks. Staff must bring to the commission’s attention “at the earliest opportunity” any information it has that reveals possible criminal conduct. The commission has the discretion to refer the information to prosecuting authorities and does so. It also considers any proposals for procedural or rule changes submitted by judges, lawyers and the public. 

In addition to being an engrossing read, the Pennsylvania report serves as a reminder of the critical role a judicial disciplinary system plays in maintaining public confidence in the integrity of the judiciary and the importance of ensuring that it fulfills that mandate. California’s commission works diligently to ensure that its rules and procedures are not susceptible to the failures that occurred in Pennsylvania.

Janice M. Brickley is Legal Advisor to Commissioners at the California Commission on Judicial Performance.