Luzerne County Judges

March 2, 2010

Ex-judges launch their attack

Motions allege bias, prosecutorial misconduct

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
Terrie Morgan-Besecker on Facebook   |   @TLTerrieMorgan on Twitter

SCRANTON – Attorneys for former judges Michael Conahan and Mark Ciavarella launched their defense with a blistering attack Monday, filing dozens of pre-trial motions that include allegations of prosecutorial misconduct and bias by the trial judge.

The motions, filed by lead defense attorneys Al Flora and Philip Gelso, seek to dismiss the 48-count indictment filed in September. The attorneys argue that the U.S. Attorney’s Office engaged in “outrageous conduct” by utilizing attorney Robert Powell as an informant when it knew Powell had been part of a “joint defense agreement” with the judges.

Flora, who represents Ciavarella, and Gelso, who represents Conahan, also want U.S. District Judge Edwin Kosik to recuse himself from the case based on comments he allegedly made that indicate he has pre-judged Conahan’s and Ciavarella’s guilt, they say.

The documents were among a combined total of 45 pre-trial motions filed by Flora and Gelso and their co-counsel, William Ruzzo and Arthur Donato. Other key motions filed included:

• Change of venue based on extensive pre-trial publicity surrounding the case.

• Suppression of statements contained in audio recordings obtained by Powell.

• Dismissal of all counts related to the charges of racketeering and honest services fraud.

• Compelling the government to provide more detailed evidence and to provide transcripts of grand jury proceedings that led to the charges.

The indictment, filed Sept. 9, charges Conahan and Ciavarella with multiple counts of racketeering, money laundering, honest services fraud, bribery, extortion and tax evasion.

It alleges the men abused their positions by accepting more than $2.6 million from the owner and builder of the PA Child Care and Western PA Child Care juvenile detention facilities that were utilized by the county.

The pre-trial motions are the first indication of how the ex-judges will frame their defense. They indicate prosecutors are in for a contentious battle.

Flora and Gelso aggressively attacked the conduct of prosecutors, alleging they improperly utilized Powell to elicit incriminating statements from Conahan in violation of the attorney-client privilege and the joint defense agreement that was in place.

A joint defense agreement protects communications between any person and an attorney for another person relating to a joint effort to set up a common defense strategy, according to Gelso’s motion, which was joined by Flora.

Gelso said Powell was initially a party to a joint defense agreement with Conahan and others. At some point, Powell decided to cooperate with federal authorities, but he never advised Conahan of that and did not withdraw from the agreement.

That permitted Powell, who was wearing a wire, to record conversations in which Conahan discussed defense strategies, the motion says.

Prosecutors, aware that defense strategies might be revealed, assembled a separate “taint” team to review the recordings and redact any information that might be deemed to be protected by attorney-client privilege. Gelso says the “taint” team did not follow established protocol and allowed some information to be revealed to the prosecution team that should have been withheld.

“The government was aware of these facts and exploited the same to create an atmosphere where the defendant would discuss defense strategy openly concerning the impending government prosecution. This defense strategy is at the core of both the attorney-client privilege and the work product doctrine,” the motion says.

Gelso claims the government’s actions amounted to “outrageous conduct” that violated Conahan’s due process rights, warranting the dismissal of the entire indictment against Conahan and Ciavarella. In the alternative, he asks that statements made by Conahan be suppressed.

In a separate motion, Flora takes aim at Kosik, arguing that he should recuse himself based on statements about the case he allegedly made to another person in a courthouse hallway that were overheard by a reporter by The Citizens’ Voice newspaper.

In a story published on Aug. 2, the newspaper quoted Kosik as questioning how the former judges could deny there was a “quid pro quo” arrangement regarding payments Powell allegedly made to them. Prosecutors contend the payments were tied to Ciavarella’s placement of juveniles in the two Powell-owned juvenile centers.

Flora said the comments indicate that Kosik has made a judgment regarding the merits of the case before trial, calling into question his impartiality.

Flora also notes Kosik was privy to a pre-sentence investigation regarding Conahan and Ciavarella.

The report was done as part of a plea deal that called for them to plead guilty to charges of honest services fraud and tax evasion and serve 87 months in prison. That deal fell apart in July after Kosik rejected the terms of the agreement, saying he did not believe the men had shown they accepted responsibility for their crimes.

Flora notes the pre-sentence investigation contained information from outside sources. He contends that information could further serve to bias Kosik’s judgment in the case.

Other motions filed by Flora and Gelso focus on compelling the government to turn over additional information regarding its investigation that is not included in the indictment.

The attorneys are seeking permission to review testimony presented before the grand jury that issued the indictment. They are also seeking the identity of co-conspirators listed in the indictment who are not named.

Each of the motions will be heard by Kosik. The U.S. Attorney’s Office will have an opportunity to respond before Kosik rules on any matter.

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