Whittaker cleared of judicial charges

NANTICOKE – The state Court of Judicial Discipline on Thursday cleared Nanticoke District Judge Donald Whittaker of all misconduct charges, saying testimony of the lead witness was “false, misleading and evasive.”

In a 40-page opinion, a three-member panel took the complainant, Maryann Kearney, to task, saying she gave contradictory testimony that seriously damaged her credibility.

Kearney, of Nanticoke, filed a complaint with the state Judicial Conduct Board in August 2005, alleging Whittaker made sexually inappropriate comments to her and other women who worked in the Nanticoke municipal building.

The board investigated and in May 2007 filed charges against Whittaker, accusing him of bringing disrepute to his office.

Whittaker, a district judge since 1994, vehemently disputed the allegations. His attorney, Basil Russin, said Whittaker was “ecstatic” to learn of the ruling.

“This was a weight over his head all this time. He was extremely hurt over these charges and that anyone would say these things that he knew were not true,” Russin said.

Kearney worked for the Wyoming Valley Sanitary Authority, which was located in the same building as Whittaker’s office. The JCB complaint was based on three alleged incidents:

• On Jan. 24, 2005, Kearney claimed, Whittaker approached her after she exited a restroom and asked her if she “had a hard time working it out,” and if she “needed a pencil to work it out.”

• On Jan. 26, 2005, Kearney said, she was talking with Patricia Zendarski, a city records clerk, when Whittaker put his hands on Kearney’s shoulder and forcibly twisted her neck, seriously injuring her. Zendarski also alleged Whittaker asked Kearney how she was able to perform oral sex on her husband.

• On May 6, 2005, Kearney said, Whittaker entered a lunch room and several women commented that he looked nice. She claimed he responded by referring to the women by a vulgar slang term for female genitalia.

The case went to trial in Harrisburg in January. Whittaker’s attorneys called a parade of witnesses who disputed Kearney’s allegations.

A man who was present when the “pencil” comment was allegedly made said he never heard Whittaker make the comment. The women in the lunch room also denied hearing Whittaker call them a vulgar term.

Regarding the oral sex comment, Kearney had testified she did not personally hear it. The court said it had no reason to doubt Zendarski’s credibility, but her testimony was not sufficient to sustain the charge.

The bulk of the court’s opinion focused on behaviors several witnesses said Kearney exhibited that called into question the sincerity of her allegations.

Several witnesses said employees in the building were known to engage in light-hearted, sexually charged banter. Kearney, they said, was a willing participant, and was known to give Whittaker sexually explicit birthday cards.

“By itself, the fact that she purchased sexually explicit birthday cards for (Whittaker) is enough to establish that her testimony is not credible,” the judges wrote. “No one would give these cards to anyone who was not a friend . . .”

The judges said they also had trouble believing Kearney was embarrassed by the Jan. 24 and May 6 incidents. Testimony revealed she never told Whittaker or any other person in the office that she had been offended.

The court noted Kearney also did not include information on those alleged incidents in her initial filing. They were not added until she wrote a letter to the board in April 2006, shortly after she acknowledged reading a newspaper article about a district judge who had been disciplined for using vulgar language.

Contacted at home Thursday night, Kearney said she stands by her allegations. She said she’s upset because she feels she is being made out to be the villain.

She said police had investigated the Jan. 26, 2005 incident and declined to prosecute. She spoke to the district attorney’s office, which advised her she could file a JCB complaint.

In a separate matter, the board also charged Whittaker with violating a rule that prevents a judge from holding outside employment in his district by working as a part-time fire truck driver for Newport Township. The court cleared him, finding that the violation was unintentional.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179

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Judicial discipline court says accuser against Nanticoke district judge not credible.

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