Court system gone awry

PLAINS TWP. – Luzerne County Judge David Lupas, who had been district attorney, conceded Tuesday that some people see juvenile hearings as “kiddie court.”

District Attorney Jacqueline Musto Carroll grew almost combative at times defending her department, warning that past events cannot be judged “in a vacuum.”

And Chief Public Defender Basil Russin admitted activities in juvenile hearings had been “troubling,” but bemoaned a lack of manpower and money as impediment to his ability to do anything.

All three said they could not explain why problems that led to one of the nation’s biggest court corruption scandals festered for years without anyone in their staffs noticing or complaining.

Two central themes emerged: They assumed things were OK, and the actions of one judge were widely popular and thus hard to assail.

For the first time since ex-judges Mark Ciavarella and Michael Conahan were accused of accepting millions in exchange for supporting a private child care center through actions on the bench, the three top Luzerne County officials appeared in public, along with County Probation Chief John Johnson.

They testified Tuesday during hearings by the Interbranch Commission on Juvenile Justice held at Best Western East Mountain Inn.

Lupas admitted that juvenile cases don’t always “get the priority they probably should,” though he added things have changed since he was appointed to fill the post occupied by Ciavarella.

“Unfortunately, I still see some of that attitude in my role as judge,” he said.

During testimony by all three, commission members hammered away at several key points: An estimated 54 percent of juveniles appearing before Ciavarella had no legal representation; many waived the right to such representation in writing before entering the courtroom and transcripts of hearings show there often was no “colloquy,” or questioning a judge does to make sure a defendant understands consequences of pleading guilty or waiving rights.

All three conceded that those problems should have been detected, but that a lack of complaints from underlings, coupled with the power of a trusted judge, helped keep the problems invisible or unreported.

Lupas said that as district attorney he did not attend juvenile hearings, and none of his staff lodged any major complaints during Ciavarella’s tenure. He suggested many of the commissioners’ questions needed to be directed at those court personnel who were in the courtroom.

Lupas said he and the first assistant district attorney supervised the juvenile case attorneys “with an open door policy,” but rejected the suggestion that the supervision was “reactive,” noting he would ask how the day went when juvenile prosecutors returned from court.

He said Ciavarella’s high placement rate of juveniles deemed delinquent was widely accepted and that many school administrators and the head of the NAACP praised the judge’s “get-tough” policy.

Lupas said he does not agree with Ciavarella’s “zero tolerance” policy, and upon becoming juvenile court judge he did away with it.

He also said he advised attorneys that work days could get longer as the era of Ciavarella’s speedy hearings – often only several minutes with little or no testimony – were over. He boasted placement and court costs have dropped by millions of dollars.

A skeptical Commission Chairman John Cleland asked if the attorneys were intimidated or simply unaware of all the issues now exposed regarding Ciavarella. Lupas replied “That’s the question.”

“We do have to concede that there was a total deprivation of constitutional rights,” Cleland said.

Cleland then argued that someone had to know in the court system back then, and asked how it could happen, but Lupas countered that he had to rely on the professionalism of his staff, and no complaints were made.

Lupas closed by noting that, in his final days as district attorney, he was told by the FBI of an investigation but was not given details.

That knowledge, coupled with growing rumors of corruption, made his first year as a judge “very difficult.” He suggested more transparency in juvenile proceedings, mandated legal representation and increased state funding.

Musto Carroll made similar arguments regarding her trust in her staff and the lack of complaints, but noted the office is routinely a stepping stone for attorneys heading to private practice, leading to a younger, less-experienced staff. She said she has tried to increase training, “but you have to remember there are budget constraints.”

The district attorney argued that the national and local mood was ripe for Ciavarella’s zero tolerance policies in the wake of the Columbine school shootings, and that many people praised the judge at the time for saving kids who were “out of control” and getting them to reform.

“We need to look at this in total, and not in a vacuum.” People were not “driving around the streets grabbing children for this animal of a judge,” she said.

While Musto Carroll didn’t condone what he did, she said the question should be asked if the zero tolerance was adopted to help the children or to help the judge.

Commission members were not swayed, arguing that even if the bribes hadn’t occurred, Ciavarella still denied the children their constitutional rights.

“You tell me how to stop a judge from being a criminal,” Musto Carroll said.

“You report them,” Cleland interrupted. Musto Carroll then insisted that she did press the issues once she learned of them. “I’m no wallflower.”

Cleland apologized for the interruption after the hearings and said it was “a sign of the frustration” the commission feels in trying to find out how Ciavarella’s courtroom behavior could go on for years with no complaints from attorneys.

Musto Carroll said she disagreed with what Ciavarella did, and that she agreed with the Pennsylvania Supreme Court’s decision to vacate some 6,500 rulings during his tenure.

But she said she also felt some juveniles still in placement should be allowed to have a new hearing rather than simply be set free. Some “were terrified of getting out of placement,” where they were getting help they needed, she said.

Musto Carroll insisted she has worked with the investigation and “done everything I could to restore the system.”

Chief Public Defender Russin also noted he was rarely in the juvenile court room, and that none of his lawyers lodged complaints about Ciavarella until near the end of the judge’s tenure. One reason, he suggested, was that people welcomed the get-tough approach.

“Everyone loved him. Everybody absolutely loved him,” Russin said. “Schools got rid of all there problems.”

Russin said until recently he never met with the district attorney’s office regarding juvenile cases and that “maybe the reason was I thought they were on the bandwagon, happy to get convictions.” He quickly clarified: “By the bandwagon I mean zero tolerance, not any illegality.”

And he said even when he found some aspects of Ciavarella’s proceedings “troubling,” he didn’t act because “we were dealing with what appeared to be a unified court” with other judges apparently supporting Ciavarella’s policies. Under such circumstances, challenging any decision was daunting, he said.

“I’m going to go in and ask ‘why’d you vote for Ciavarella for president judge?’ They’re going to tell me to go to hell. It’s not my position.

“I just felt this was the way this county was going ... it seemed we were in a community with the mindset, ‘let’s lock them up.’”

Commission member Jason Legg suggested that the very fact everyone seemed to embrace the zero tolerance policy was cause for a public defender to step forward “for the little guy.”

Russin said that, by training, his attorneys should have been asking if defendants wanted to appeal, and since no appeals were sought, he assumed there was no major problem.

Russin said his department is understaffed and under-trained in evolving aspects of juvenile law, and blamed it on lack of money. He noted he had his own juvenile law training for the first time in 36 years only recently and that “it was eye-opening.”

He said the department did not take advantage of free training available because for most it was part-time work that involved only a few hours of their very busy weeks.

“I’ll agree with you we were not prepared,” he said. “But the same lawyer handling juvenile court had 28 other cases. ... if I were on the ballot, no one would vote for me. No one wants to fund juvenile court.”

Russin closed by saying, “What we have here in Luzerne County is a systemic problem ... We still have a mindset in prosecutions and police and juvenile probation” that going to court is always a way to solve problems. “We have to stop that.”