Conahan might testify against fellow ex-judge

SCRANTON – Former Luzerne County Judge Michael Conahan is willing to testify at the corruption trial of his one-time co-defendant, Mark Ciavarella – a decision federal law experts say could help reduce the potentially lengthy sentence Conahan is facing for his role in the scheme.

Assistant U.S. Attorney Gordon Zubrod identified Conahan as a “potential” witness during a pre-trial conference held before U.S. District Judge Edwin Kosik on Aug. 5, according to a transcript of the proceeding.

The transcript, publicly filed on Friday, also reveals that one of Ciavarella’s attorneys, William Ruzzo, has asked the court to pay his legal fees based on Ciavarella’s claims that he is unable to afford legal counsel.

Ciavarella and Conahan were originally charged in January 2009 with accepting $2.8 million as part of scheme to incarcerate juveniles at two juvenile detention centers that were owned by their one-time friend, attorney Robert Powell.

Conahan pleaded guilty in July to one count of racketeering conspiracy for his role and is awaiting sentencing. Ciavarella’s trial is scheduled to begin Feb. 7.

Conahan’s plea agreement did not contain a cooperation agreement, but Zubrod said Conahan has indicated he is willing to testify. Zubrod did not specify what Conahan’s testimony will be, but comments he made to Kosik indicate it may be limited to admissions Conahan made during his plea hearing on July 23 – known as a colloquy.

“He is willing to take the stand and testify precisely to the language of the plea colloquy,” Zubrod said.

Conahan is facing up to 20 years in prison, but it’s likely prosecutors would agree to seek a reduced sentence for his cooperation, said attorneys Daniel Fridman and Peter Vaira, two former federal prosecutors.

“Just because you don’t have cooperation language in the plea agreement does not mean prosecutors won’t (seek a reduction) after sentencing for his cooperation,” said Fridman, who specializes in federal defense work for the law firm Holland & Knight in Miami, Fla.

How much of a reduction Conahan might receive would be dependent upon how valuable his testimony is compared to the egregiousness of his own conduct, said Vaira, a Philadelphia attorney who formerly served as U.S. attorney for the Eastern District of Pennsylvania.

“You’ve got to balance what occurred. How much did he help, but what did he do himself?” Vaira said.

At the pre-trial hearing, Kosik said he expects several of the other defendants who have entered pleas related to the case will also testify.

Ruzzo said he does not know who will and won’t testify because attorneys for the other defendants have shared little information.

“Our people are protecting their own,” he said. “They’re not forthcoming.”

“It’s a mess,” Kosik later commented. “You have defendants who have entered pleas of guilty who are probably nervous about their futures. Usually the government doesn’t want anybody sentenced that might be cooperating until after their cooperation.”

The pre-trial hearing was called to discuss various matters, including the scheduling of the trial, jury selection and several pre-trial evidentiary issues that have not yet been resolved.

Among those issues is Ruzzo’s application to be court-appointed to represent Ciavarella, which means his fees would be paid by the federal government.

Kosik noted Ciavarella had gone to co-counsel Al Flora as a “friend” when he first realized he was in trouble.

“That’s correct, judge. But I didn’t say we were going to do it for nothing,” Ruzzo said.

Kosik said he was reluctant to grant the request because Ciavarella has approximately $250,000, plus interest, in contributions he made to his pension – money that has been frozen by the state based on the charges filed against him.

“I feel very uncomfortable about appointing counsel or even approving other expenditures when I know there is available a fund,” Kosik said.

Kosik said he realized there is a chance the government could recoup that money if the frozen funds are someday released. He expressed concern about public perception, however.

“If I appoint counsel, the media says ‘For Christ’s sake, he’s got three hundred some thousand dollars,’ ” Kosik said.

Zubrod said his office opposes the request based, in part, on evidence it has that Ciavarella has placed some of his assets in the names of others.

“He has dissipated his assets. That is going to be a separate action against him, and it’s going to be a matter of sentencing as well,” Zubrod said.

Zubrod did not specify how Ciavarella had dissipated his assets. At a hearing in September 2009, prosecutors noted Ciavarella sold his home in Wright Township and gave the money to his daughter, Lauren Stahl.

Stahl and her husband, Brian, used the funds to purchase a town home on Rutter Avenue in Kingston.

Ciavarella and his wife, Cindy, lived with the Stahls in the home until recently, when it was sold. Court records show the home, which was purchased for $225,000, was sold to a Kingston couple for $247,000 last month.

Flora said Ciavarella is continuing to battle the State Employee Retirement System over release of the funds. The case is still in the administrative process, however.

Kosik said he believes Ciavarella should be able to recoup his own contributions into the fund. He suggested Flora file a court action seeking to force SERS to release the money based on the argument Ciavarella’s right to a fair trial is being violated because he does not have the funds to pay counsel.

Flora filed that action with the Commonwealth Court on Sept. 14. A hearing on the case has been scheduled for January.