News

August 13, 2009

Judge: Void juvenile convictions

Could clear all youths convicted by Ciavarella

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter

WILKES-BARRE – A judge has recommended that the convictions of all juveniles who appeared before disgraced former judge Mark Ciavarella from 2003 to 2008 be vacated and that prosecutors be barred from retrying all but a handful of those cases.

The opinion, issued Wednesday by specially appointed master, Judge Arthur Grim, recommends that retrials be constitutionally barred under the double jeopardy statute for all juveniles who appeared before Ciavarella without an attorney, as well as any juvenile who was sentenced to the PA Child Care or Western PA Child Care juvenile centers, regardless of whether they were represented by counsel.

Grim acknowledges there is no constitutional bar to retrials for juveniles who were represented by counsel and were incarcerated at facilities other than PA or Western PA Child Care. But he recommends against retrying youths who have completed their sentences, saying a new trial would benefit no one since the juveniles have already “served their debt to society.”

For those still serving a sentence of incarceration or probation or those who still owe restitution or fines, he suggests he be permitted to review each case to determine how it should be handled.

The opinion comes three weeks after a hearing at which the Juvenile Law Center of Philadelphia and county District Attorney Jacqueline Musto Carroll debated how to handle the cases. The report will now be reviewed by the state Supreme Court, which could opt to adopt all, part or none of the recommendations.

Lourdes Rosado, one of the attorneys who argued the case for the Juvenile Law Center, said she’s “absolutely thrilled” with Grim’s report.

“It’s an amazing report. It shows the court is taking a stand to say what happened to these kids is just wrong and requires the drastic step of vacating all convictions,” she said.

Musto Carroll agreed the convictions of all juveniles should be vacated, but she argued against barring retrials.

“I’m somewhat disappointed in that I thought we made a case for the judge to allow us to retry the cases and give everyone a fair trial,” Musto Carroll said. “Juveniles who committed crimes, some that were serious in nature, will be treated as if the crime never occurred. I would have liked to have had the opportunity to retry the case on a level playing field. However, the court felt the conduct of the judge was so outrageous he did not allow that.”

Grim, a Berks County senior judge, was appointed by the state Supreme Court to review all of Ciavarella’s cases after the judge and his co-defendant, former Judge Michael Conahan, pleaded guilty in February to corruption charges. Grim already recommended that the records of hundreds of juveniles who committed low-level crimes be vacated. This report covers youths who were charged with more serious offenses.

Grim based his opinion on what he said was clear evidence that in many cases Ciavarella engaged in intentional conduct meant to deprive juveniles of a fair trial. That, he says, triggers double jeopardy – a clause within the U.S. Constitution that bars a person from being tried twice for the same crime.

Marsha Levick, an attorney for the Juvenile Law Center, had asked Grim to find that prosecutors, as well as Ciavarella, engaged in misconduct. Levick argued prosecutors had “turned a blind eye” to the violations of juveniles’ rights they witnessed – an allegation Musto Carroll adamantly denied.

While his report notes that neither prosecutors nor defense attorneys took action to stop Ciavarella’s actions, Grim makes no finding as to their culpability. He lays the blame squarely on Ciavarella’s shoulders.

Grim said evidence showed Ciavarella knew he was violating the Juvenile Act when he accepted guilty pleas from children without questioning them on the record to ensure they had knowingly waived their right to an attorney.

He based that opinion in part on his review of 38 randomly selected transcripts from 2003 to 2008. In all but two of the transcripts, Grim noted, “there was not a single word” said by Ciavarella to advise the juveniles they had a right to an attorney.

Grim also noted statistics gathered by the county’s Juvenile Probation Department that showed that from January 2003 to May 2008 there were 1,871 youths who appeared before Ciavarella without an attorney.

Grim said he was equally troubled by Ciavarella’s incarceration of juveniles at the PA and Western PA Child Care Centers, given that Ciavarella and Conahan pleaded guilty to accepting more than $2.6 million in kickbacks from the developer of the centers and attorney Robert Powell, who formerly co-owned the centers.

That conduct is so egregious that it triggers double jeopardy for all juveniles who were incarcerated there, regardless of whether they had an attorney, Grim said.

“Judge Ciavarella’s action in committing juveniles to juvenile facilities which were involved in making large, illegal payments to him is far more than judicial error; it constitutes misfeasance which ‘signals the breakdown of the integrity of judicial proceedings,’ ” Grim wrote.

It was not clear Wednesday how many cases might require retrials. That figure won’t be known until Grim reviews files of juveniles whose cases originated under Ciavarella and are still under court supervision.

Attorneys involved in the case say they believe that number will be relatively small. Ciavarella stepped down from juvenile court in May 2008, thus it’s likely most youths have completed their sentences and/or have paid their restitution and fines.

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

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