Ex-judges’ motions get rejected

SCRANTON – A federal judge on Tuesday denied motions filed by former judges Michael Conahan and Mark Ciavarella that sought to dismiss the indictment against them and/or to suppress evidence based on allegations of prosecutorial misconduct.

The ruling was one of three issues U.S. District Judge Edwin Kosik decided in favor of federal prosecutors. He also denied a motion that sought his recusal from the case and a motion to transfer the trial outside of Pennsylvania, although he reserved the right for the defense to resubmit that motion at a later date.

The rulings are among several dozen Kosik is expected to make in the coming days or weeks regarding various legal challenges attorneys for Conahan and Ciavarella filed to the government’s case.

The former judges were indicted by a federal grand jury in September on 48 counts, including extortion, money laundering, bribery, wire fraud and other offenses.

Prosecutors say Conahan and Ciavarella improperly accepted more than $2.8 million from attorney Robert Powell and real estate developer Robert Mericle in exchange for rulings that benefited the PA Child Care and Western PA Child Care juvenile detention centers. Powell once co-owned the centers while Mericle built the facilities.

Kosik’s ruling primarily impacts Ciavarella, who is awaiting trial on all 48 counts. Conahan entered into a plea agreement in April 29 that calls for him to plead guilty to one count of racketeering conspiracy.

The ex-judges had sought to dismiss the indictment and/or to suppress incriminating statements that were recorded by Powell during several months in 2008.

Al Flora, Ciavarella’s attorney, said he could not comment on the rulings. Philip Gelso, Conahan’s attorney, did not immediately return a phone message seeking comment.

In court papers, the defense attorneys had argued the government engaged in misconduct when it utilized Powell as an informant despite knowing he was part of a joint defense agreement. Such agreements protect communications between people and attorneys regarding defense strategies to potential criminal charges.

Powell was initially a target of the investigation along with Conahan and Ciavarella but later agreed to cooperate with authorities. The defense argued Powell should have withdrawn from the defense agreement before recording the conversations.

The U.S. Attorney’s Office maintained it acted properly because it formed a “taint” team consisting of people not involved in the case. That team reviewed the recordings and redacted any privileged information before giving them to the prosecution team.

Prosecutors also contended that Conahan and Ciavarella were not entitled to any relief because they were not discussing defense strategies, but rather how to commit additional crimes, including perjuring themselves before the grand jury. That falls within an exception that negates any protection they might have been afforded by the defense agreement, prosecutors said.

Kosik sided with prosecutors, noting that partial transcripts of the recordings revealed no mention of defense strategies, only the discussion of committing new crimes.

“The government is correct in pointing out that there is no constitutionally protected right to such conversations under any circumstance,” Kosik said. “Nor is it a protected strategy to use the aforesaid means to attack the credibility of a witness who is acting as an intermediary of what the government characterizes as ‘kickbacks.’ ”

The ex-judges had also sought Kosik’s removal based on comments he allegedly made to The Citizens’ Voice’s Michael Sisak on July 1, 2009, shortly after Kosik had accepted Powell’s guilty plea to charges related to the case.

The story, published on Aug. 2, quoted Kosik as questioning how Conahan and Ciavarella could deny there was a “quid pro quo” arrangement regarding payments Powell allegedly made to the ex-judges. Defense attorneys claimed that Kosik had already made up his mind regarding certain aspects of the case.

In his ruling, Kosik said he does not recall the conversation but does not deny it occurred. The judge said the key issue is the interpretation of the wording of the article.

Kosik said his reading of the article shows that it is based on comments he made in open court during Powell’s plea hearing on July 1, not on any comments he reportedly made to Sisak after the hearing. He notes the article also cites comments he made in his July 31, 2009, ruling that rejected a plea agreement that had initially been worked out with both judges.

“We leave it to an objective reading of the transcript at Powell’s guilty plea on July 1, 2009, to confirm that what appeared in the news article was in fact said at the public plea hearing, and that almost everything else in the article fairly and correctly reported the legal opinion of the court in the memorandum of July 31, 2009, rather than some off-hand sidebar disclosures following the plea of Powell ...,” Kosik wrote.

Regarding the change of venue, defense attorneys had sought to move the trial to Delaware, arguing that extensive pre-trial publicity would make it impossible to get an impartial jury within the region.

Kosik denied that motion without comment, but left open the possibility the defense could re-file it once the case gets closer to going to trial. That could include up until the time of jury selection.