News

February 2, 2010

No repeat of juvie scandal the goal

Testimony’s focus: Changes to help prevent reoccurrence of alleged judicial misconduct.

By Mark Guydish mguydish@timesleader.com
Education Reporter
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HARRISBURG – The phrases spilled out with notable passion in the voices: “a sense of futility,” “juveniles who came before the judge to be ridiculed,” “justice by geography.”

Testimony Monday before the Interbranch Commission on Juvenile Justice focused on recommended changes that would help prevent a repeat of the scandal in Luzerne County, where two judges are accused of taking millions in exchange for rulings that benefited two private juvenile detention centers.

Barbra Lee Krier, from the Juvenile Defenders Association of Pennsylvania, led the testimony by calling for limits on the caseloads of public defenders, possibly to about 200 to 250 a year. When Commission Member Robert Listenbee said data show Luzerne County has 800 to 1,000 cases handled by one attorney, Krier said bluntly, “That is outrageous.”

Krier also called for new performance and ethical standards, a new agency to improve access to counsel, more training for attorneys and – citing an appeals case that seemed to get lost for more than a year in York County – a “fast track” for juvenile appeals and an appeals system that guarantees children the same rights as adults.

She also said the state needs to eliminate “justice by geography,” noting different counties have considerably different funding and resources in dealing with juvenile courts.

Krier dubbed the process in many places “cattle call proceedings” because sometimes a dozen or more juveniles are told to show up at 9 a.m. for their hearings, then have to wait hours until they go before the judge, often with only a few seconds preparation from a single attorney handling all the cases.

More training on the specifics of juvenile court – for attorneys and judges – could help erase the idea that it is “kiddie court,” where few attorneys choose to make their careers, she said.

Asked after her testimony how all this would be paid for, Krier noted the high cost of placing juveniles in detention and treatment facilities, running up to $10 million or $15 million. Better handling of the cases and reducing the placement rate could easily produce more in savings than the cost of reforms, she said.

National Juvenile Defender Center Deputy Director Mary Ann Scali said Pennsylvania has laws that should protect children, but that “human behavior cannot be separated from the law, and in Luzerne County, human behavior transcended the law.”

Testimony and records show that former Judge Mark Ciavarella routinely kept hearings short, often refusing to let juveniles testify, that more than half of those who appeared before him did not have legal representation, and that children made plea agreements without an on-the-record “colloquy,” or explanation of their rights and the impact of their decisions.

Scali submitted several books of research and recommendations, including one titled “Defending Clients Who Have Been Searched and Interrogated at School.” She said juvenile defenders “should push back. We, the juvenile court, are not the place for students to get the services they need.”

Ciavarella had a reputation for zero tolerance when students were charged with school misconduct, and county officials testified that school administrators “loved” that policy because it let them get rid of problem children, a claim several superintendents have rigorously denied.

Scali echoed many of Krier’s recommendations, adding that judges should be required to give an on-the-record explanation of reasoning when placing a child in detention or treatment. She argued that the culture within the court reflected society’s “ambiguity” about juvenile justice, with many court officials deciding “to go along to get along. … The question is, how do these activities become routine without questioning their moral turpitude?”

Scali said it is also important to make sure children understand what is happening in court. “We speak in a foreign tongue” to them, she said.

Pennsylvania Council of Children, Youth and Family Services Executive Director Bernadette Bianchi noted that up to 85 percent of social services counties provide to juveniles come through contracts with private agencies. She called for such contracts to be more rigorously negotiated, extended from one year to three, and put out for bid each time they expire rather than renewed with scant discussion, as usually happens.

Bianchi also noted agencies must be more cautious in handing out free gifts or dinners to county officials who help choose who gets a contract.

American Bar Association Ethics Counsel George Kuhlman suggested the state judicial conduct code be reworded to make it clear what judges can and cannot do. He said ambiguity in the language makes it possible for judges like Ciavarella and Michael Conahan to argue they were not violating the code.

Tightening it could also force other judges or court officials to report suspected misconduct. Using the word “shall” would be enough in some cases because, legally, it means “must,” he said.

Victim’s Advocate Carol Lavery urged all to remember those who suffered from the crimes, but said Ciavarella’s alleged misconduct “leaves in its wake unimaginable loss” for many victims: the juveniles who came before the judge to be ridiculed; all of those professionals who worked in the system and are now being painted as hard-hearted or incompetent, who hold their jobs only because of nepotism; those who daily dread to read the reports; communities described as backward; and the victims who suffered victimization at the hands of those juveniles who appeared before Ciavarella and now have clean records despite the acts they committed.

The state Supreme Court ruled that nearly all of the juveniles adjudicated by Ciavarella from 2003 through 2008 will have their records expunged, and Luzerne County District Attorney Jackie Musto Carroll decided not to retry the handful who didn’t fall under that ruling. Those juveniles will also have clean records.

“It is very difficult for the victims in the community to understand this,” Lavery said. “They are struggling.” She cited conversations and letters from victims angry that the juveniles deemed delinquent now have no records and no need to repay any remaining restitution ordered by the court.

One person who had been in Ciavarella’s court spoke of “the overpowering aura of the judge” that seemed to keep others from speaking up when the accused had no attorney and was not allowed to talk.

Lavery called for creation of a victim’s advocate expressly for juvenile court, a fund to repay any restitution still owed and restoration of $3.2 million in state funding for public defender’s and district attorney’s offices to provide staffing for victim help, as required by law.

Lavery said the money was slashed by nearly $2 million thanks to this year’s budget crisis.

The commission will hold more hearings today. It plans to return to Luzerne County for another hearing later this month.

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