Luzerne County Judges

January 19, 2010

Juvenile center pursues injunction

Lawyer: Enforcing court order would destroy records key to center’s defense of civil suits.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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SCRANTON – An attorney for PA Child Care and related entities has asked a federal judge to block a state court order he says would force the center to destroy records that are crucial to its defense of civil suits that allege juveniles were wrongly incarcerated.

In a court motion filed last week, Bernard Schneider of Pittsburgh contends a court order issued by Senior Berks County Judge Arthur Grim unfairly prejudices the juvenile center by allowing certain records that are beneficial to the plaintiffs to be preserved, while requiring other documents that benefit the defense to be destroyed.

Schneider asks U.S. District Judge A. Richard Caputo to issue a preliminary injunction that would block enforcement of the order. In the alternative, he asks Caputo to dismiss all counts against his clients based on a claim of “spoliation of evidence” – a legal principle that refers to the intentional or negligent withholding of evidence.

The motion was filed on behalf of the PA Child Care juvenile detention center and its sister facility, Western PA Child Care, as well as Mid Atlantic Youth Services, the company that provided treatment programs at the two facilities.

The centers and Mid Atlantic are among numerous defendants named in several federal civil rights lawsuits filed by hundreds of juveniles who allege they were improperly detained pursuant to orders issued by former Luzerne County juvenile court Judge Mark Ciavarella.

Ciavarella and former Judge Michael Conahan are facing criminal charges for allegedly accepting more than $2.6 million from Robert Powell, who formerly co-owned the two centers, and Robert Mericle, who built the facilities. Federal prosecutors say the payments were a reward for rulings the judges entered that benefited the centers.

Schneider’s motion pertains to a Dec. 21, 2009, order issued by Grim that directs the centers and Mid Atlantic to destroy all records in their possession that relate to juvenile proceedings held before Ciavarella.

The state Supreme Court in October ordered that the convictions of all juveniles who appeared before Ciavarella from 2003 to 2008 be vacated and their records expunged, or erased. The order was based on a report by Grim, who was specially appointed to review the cases.

Realizing that the records were important to the pending civil litigation in federal court, Grim permitted certain documents to be preserved under seal. The problem, Schneider said, is Grim’s order only preserves court documents filed in county court and with the county’s juvenile probation department. It does not protect records that are in the possession of the individual defendants.

Schneider says documents possessed by the centers and Mid Atlantic are critical to their defense of the lawsuits.

The records will show, for instance, that many juveniles treated at the centers were guilty of serious crimes and would have been detained at the center, or some other facility not operated by PA Child Care, regardless of the payments that were allegedly made to Ciavarella and Conahan.

Schneider claims attorneys for the plaintiffs are aware that documents PA Child Care and other defendants possess would support their defense. Yet, he claims, the plaintiffs sought only a court order to protect the county records.

Schneider contends that was an intentional act meant to ensure that only evidence favorable to the plaintiffs would be available. That warrants the dismissal of the suit against his clients, he says.

“Plaintiffs must have known that such a limited preservation would result in the expungement of the records in (defendants’) possession,” Schneider said. “Thus, plaintiffs deliberately obtained an order from a state court that preserves potential evidence of their choice, but requires (defendants) to destroy relevant evidence.”

Schneider said the order directing the records be destroyed also conflicts with a separate court order Caputo issued that directed all parties to retain records that might be relevant to the suit.

Attorneys for the plaintiffs will have an opportunity to respond to the motion. Caputo will issue a ruling at a later date.

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

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