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Speaking up about judicial misconduct

By Janice M. Brickley

Janice M. BricklyHighly publicized corruption scandals involving government officials provide fertile ground for Monday morning pundits. They can also be a catalyst for education and positive change. Such is the case with the “kids for cash” judicial corruption scandal in Luzerne County, Pennsylvania. In an article published in the March Bar Journal, I discussed the Pennsylvania Judicial Conduct Board’s failure to follow through with a complaint concerning the judges involved in the scandal and what the California Commission on Judicial Performance has done to ensure that its rules and procedures are not susceptible to the failures that occurred in Pennsylvania. This article examines the role of an attorney in exposing judicial corruption and abuse in the context of the “kids for cash” scandal.

Two former judges, Mark A. Ciavarella Jr. and Michael T. Conahan, were charged with federal crimes based on their participation in a scheme to close down a county juvenile detention facility and contract for the placement of juveniles with for-profit facilities in exchange for a secret “finder’s fee” of $997,600. Juveniles were sent to the private detention facilities by Ciavarella at the same time both judges were accepting payoffs from the owner of the facilities. Conahan pleaded guilty to one count of racketeering and in February, Ciavarella was convicted by jury of 12 felony counts, including racketeering, conspiracy and money laundering conspiracy. Both men are awaiting sentence. 

The Report of the Pennsylvania Interbranch Commission on Juvenile Justice, issued last May, examines the circumstances that led to the “kids for cash” scandal, including the role of attorneys who appeared regularly before Judge Ciavarella in juvenile court. While these attorneys were not privy to Ciavarella’s financial “arrangement” with the owners of the detention facilities, they did know that Ciavarella had a “zero-tolerance” policy that resulted in juveniles being sent to detention facilities in unprecedented numbers. Under Ciavarella’s zero-tolerance policy, juveniles were automatically sent to out-of-home placement for certain offenses, such as fighting in school, without an individual evaluation of the circumstances of the offense or the offender – contrary to a judge’s obligation to decide sentences on a case-by-case basis.

Attorneys who regularly appeared in Ciavarella’s courtroom also knew that he routinely adjudicated and sentenced juveniles who were unrepresented by counsel without obtaining the required waiver of the right to counsel. In 2003, the statewide percentage of juveniles who waived the right to counsel was 7.9 percent; in Ciaverella’s courtroom the “attorney waiver” rate was 50.2 percent. Similar gaps appear in the statistics throughout Ciavarella’s five-year reign in juvenile court. 

A criminal prosecutor is not only an advocate but, as a representative of the sovereign, has a duty to seek justice, which includes the responsibility of seeing that the defendant is accorded procedural justice. (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S. Ct. 629]; County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 48.) Nowhere is this responsibility more important than in juvenile court. Under the Pennsylvania Rules of Professional Responsibility, prosecutors have an ethical obligation to ensure that the accused has been advised of the right to counsel and has been given the opportunity to obtain counsel. (See also American Bar Association Model Code of Professional Conduct 3.8 (b) [a prosecutor shall “make reasonable efforts to assure the accused has been advised of the right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel . . .”].) Before accepting a waiver of the right to counsel from juvenile defendants, Pennsylvania’s Rules of Juvenile Court Procedure require a judge to conduct on-the-record discussions or “colloquies” to ensure that the juveniles understand the right they are giving up. (See also Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d 209, 124 S.Ct. 1379].) Yet, prosecutors regularly witnessed Ciavarella deciding cases of unrepresented juveniles without first engaging in the required colloquies but said nothing. The Report of the Interbranch Commission concluded that “the prosecutors clearly abdicated their roles as ministers of justice and simply became passive observers to the tragic injustices that were perpetrated against juvenile offenders.”

Jonathan Ursiak’s first assignment when he joined the public defender’s office in 2007 was to represent juveniles in Ciavarella’s court. On a regular basis, he observed juveniles admitting to crimes and being sentenced without an attorney and without the required advisements of rights by the judge and waivers from the juveniles. This was not the only practice in Ciavarella’s courtroom that troubled Ursiak – proceedings were abbreviated, psychological evaluation reports were not provided to him before the hearing, juveniles were being sent to placement at an alarmingly high rate, the judge’s zero-tolerance policy impeded the juvenile’s right to be heard, and, in general, the public defender was not given an adequate opportunity to advocate for his clients. When Ursiak reported his concerns to his supervisor, he was told the public defender’s office did not need more clients. Undeterred, Ursiak provided assistance to the Juvenile Law Center of Philadelphia, which was investigating the suspected abuses in Luzerne County’s juvenile court. 

Ursiak’s courage and persistence in reporting Ciavarella’s improper practices should be applauded. However, the silence of other attorneys who knew of the abuses in Ciavarella’s courtroom is disturbing. Had others reported the misconduct when it first occurred, the abuses and corruption might have been abated years earlier – saving countless youthful offenders from a harsh and draconian fate suffered at Ciavarella’s hand. 

According to the Interbranch Commission’s report, no attorney practicing in Ciavarella’s courtroom ever filed a complaint with the Pennsylvania Judicial Conduct Board, the agency responsible for investigating complaints of judicial misconduct. Young prosecutors recognized the inherent unfairness of Ciavarella’s practices, but did not know what to do or to whom to turn for guidance. Many defense attorneys who appeared before Ciavarella were equally derelict. Public defenders and private attorneys routinely witnessed Ciavarella violate the rights of juveniles, including their own clients, yet most took no action. The Interbranch Commission found that these attorneys “clearly abdicated their responsibility to zealously defend their clients and to protect their due process rights.” “At a bare minimum,” the commission concluded, “they should have contacted their supervisors in the Public Defenders Office and the local bar associations or notified the appropriate judicial or attorney disciplinary organizations.”

Many factors can deter an attorney from reporting judicial misconduct – indifference, fear of retaliation, inexperience, ignorance. During its investigation, the Interbranch Commission found that some attorneys did not know how or where to report judicial misconduct. The commission encouraged Pennsylvania’s Judicial Conduct Board to partner with the Pennsylvania Bar Association to create and implement programs to educate attorneys and the public on the existence of the judicial disciplinary board and on how to report judicial misconduct. The commission also recommended that the Judicial Conduct Board revise and update its Website to provide clear, simple directions for filing complaints. In California, the Commission on Judicial Performance works with the State Bar to provide information concerning the process for reporting judicial misconduct. The commission’s website offers user-friendly instructions on how to file a complaint of judicial misconduct, as well as information on what constitutes judicial misconduct.  

As tragically illustrated in the “kids for cash” scandal, those in the legal community share a mutual responsibility to take action when faced with abuses of judicial authority. Indifference and inaction hurts not only the individual targets of the misconduct but the reputation and integrity of the bar and the judiciary.

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