News

June 18, 2009

Juvie group: DA ignored violations

Law center says youths should not be retried

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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Intent on obtaining a conviction by “any means necessary,” the Luzerne County District Attorney’s office ignored its obligation to report disgraced judge Mark Ciavarella’s abuse of juveniles’ rights and should be precluded from retrying youths whose cases are vacated, a juvenile advocacy group argues in court papers.

Attorneys for the Juvenile Law Center of Philadelphia say that prosecutors had a duty to seek justice, not a conviction, and that their failure to take action to halt Ciavarella’s repeated deprivation of juveniles’ rights amounts to prosecutorial misconduct that should bar their retrial.

The harshly worded, 42-page legal brief focuses on Ciavarella’s conduct. But the advocacy group contends assistant district attorneys were at least partly complicit for not reporting the clear constitutional violations they witnessed.

The center contends Ciavarella failed to follow state law and question juveniles on the record to ensure they understood the ramifications of proceeding before him without an attorney – allegations Ciavarella has previously acknowledged.

“For at least five years, the Luzerne County District Attorney’s office turned a blind eye to the improprieties in Ciavarella’s courtroom,” attorney Marsha Levick of the JLC says in the brief. “The district attorney had a duty to object to, or at least report to outside authorities, Ciavarella’s consistent denial of their rights. In standing silent . . . the prosecutors evinced intent that the juveniles be adjudicated delinquent ‘by any means necessary.’ ”

First Assistant District Attorney Jeff Tokach adamantly denied allegations that prosecutors intentionally sought to deny juveniles a right to a fair trial.

Tokach acknowledged Ciavarella did not question juveniles on the record to ensure they understood the ramifications of waiving their right to an attorney. But he said parents and juveniles were repeatedly advised by the probation department that they had a right to counsel before appearing before the judge.

“Juveniles and their parents were given the opportunity and the right to have counsel on at least three occasions before they appeared before the judge,” Tokach said. “Was it on the record and in compliance with the law? It was not. I agree. But did they know they had a right to counsel? I believe they did.”

Tokach said even if a judge were to find the DA’s office was remiss, the conduct the JLC alleges would not rise to the level of prosecutorial misconduct, which requires showing that prosecutors intentionally took some action to prevent a fair trial.

“It has to be the intent of the prosecutor to engage in whatever conduct they’re saying the DA’s office engaged in. That absolutely did not occur,” Tokach said. “It’s not a ‘conviction at all cost.’ That’s not true. We try to do what’s right in all cases.”

Luzerne County Judge David Lupas, who served as district attorney for part of the period in question, said the canons of judicial ethics precluded him from commenting on the case.

The JLC’s brief was filed in response to specially appointed Senior Judge Arthur Grim’s order that directed attorneys to file legal arguments addressing whether it would equate to double jeopardy – a constitutional prohibition against retrying a person twice for the same crime – to retry juveniles whose adjudications have been vacated.

Prosecutors have until July 10 to reply to the JLC’s brief. A hearing on that matter is scheduled for July 17.

Grim, of Berks County, has been reviewing thousands of cases of juveniles who appeared before Ciavarella from 2003 to 2008 to determine whether their adjudications – juvenile court’s equivalent of a conviction – should be overturned.

The state Supreme Court ordered the review after Ciavarella and former judge Michael Conahan pleaded guilty in February to accepting more than $2.6 million in kickbacks in exchange for rulings that benefited the PA Child Care and Western PA Child Care juvenile detention facilities.

Grim has already ordered that the convictions of hundreds of juveniles convicted of low-level crimes be vacated. He is now in the process of reviewing cases involving more serious charges to determine how they will be handled.

In addition to arguing prosecutorial misconduct, the JLC says retrials should also be barred based on Ciavarella’s judicial misconduct for accepting kickbacks from the owner of facilities to which he was sentencing juveniles.

Those financial ties deprived juveniles of their right to a fair trial since Ciavarella had a financial interest in finding them delinquent, ensuring the facilities remained fully occupied, attorneys for the JLC say.

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

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