News

October 29, 2009

DA, defender offices take criticism at hearing

The county remained silent as juveniles’ rights were violated in the courtroom, a lawyer for the juveniles says.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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WILKES-BARRE – Attorney Dan Segal couldn’t help but think of what might have been.

Standing before a federal judge Wednesday, Segal had just argued against the dismissal of several key defendants in two federal lawsuits arising from the Luzerne County juvenile justice scandal.

As he spoke with reporters afterward, he lamented that he and the other attorneys might not be there at all – if only prosecutors or defense attorneys had spoken up years ago and revealed the alleged constitutional violations that were going on in Judge Mark Ciavarella’s courtroom.

Segal, who represents juveniles suing for damages, was particularly hard on the county District Attorney’s Office, which he said had an ethical obligation to ensure juveniles’ constitutional rights were protected.

“The DA sat there and did nothing for five years while the constitutional rights of thousands of juveniles were denied,” Segal said after the hearing. “He had an obligation to do something. Perhaps if he had spoken up years ago, this tragedy could have been avoided.”

The alleged failure of the District Attorney’s Office and Public Defenders Office to intervene is a key issue that will determine what, if any, liability Luzerne County has in the lawsuits filed on behalf of thousands of juveniles.

U.S. District Judge A. Richard Caputo held a hearing Wednesday at which attorneys for the juveniles and defendants presented legal arguments in support of their positions.

Attorney Timothy Myers, who is representing the county, contends the county is not liable for the action, or lack thereof, of the district attorney’s or public defender’s offices because those attorneys were acting on behalf of the state court system, not the county, during the juvenile hearings in question.

Segal maintains the county is liable for the attorneys’ behavior because they were county employees. As attorneys, they had an obligation under the rules of professional conduct to report if they witnessed a judge violating a defendant’s constitutional rights.

Ciavarella, the county’s longtime juvenile judge, and former Judge Michael Conahan are facing corruption charges related to rulings they issued regarding the operation and construction of two juvenile centers the county utilized.

Among the allegations against Ciavarella are that he took actions to ensure juveniles appeared before him without an attorney. That made it easier to incarcerate the juveniles, increasing occupancy at two centers owned by an attorney, who then paid kickbacks to Ciavarella and Conahan.

During Wednesday’s hearing, Segal said those actions included having probation officials create waiver of counsel forms that failed to adequately explain to juveniles the rights they were giving up by going forward without an attorney.

Caputo questioned attorney David Senoff, who is representing juveniles, about how the District Attorney’s Office would know that the waiver of counsel was not properly presented, given that the document was prepared and signed before the juvenile appeared in court.

“What was the DA supposed to do, say ‘Wait a minute, judge, I want to make sure you did your job?’ ” Caputo asked.

Segal said that even if the prosecutor did not know the waiver of counsel was obtained under questionable circumstances, the attorney certainly knew that Ciavarella failed to follow the juvenile act and conduct a guilty plea colloquy – questioning a judge does to ensure a defendant understands the rights they are giving up when entering a guilty plea.

Transcripts of hearings before Ciavarella show he repeatedly failed to conduct the colloquy. That should have prompted the DA to do something, such as file a report with the Judicial Conduct Board, or speak to other judges to report the improper conduct, Segal said.

Segal maintains the inaction was indicative of a “policy or custom” of both the District Attorney’s Office and Public Defender’s Office to remain silent while the constitutional violations went on. That makes the county legally responsible for those actions, he said.

Myers did not address at length the question of obligation the prosecutors and public defenders had to speak up. He focused instead on the role those attorneys played while in the courtroom.

While acknowledging prosecutors and public defenders are county employees, he said they were acting on behalf of the state judicial system. That shields the county from liability for their conduct, he said.

The issue was among several legal arguments Caputo heard at Wednesday’s hearing. He has taken the matters under advisement and will issue a ruling at a later date.

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

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