Luzerne County Judges

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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Federal prosecutors knew they faced a tricky legal situation when they decided to utilize attorney Robert Powell in 2008 to secretly record conversations with Michael Conahan and Mark Ciavarella.

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At the time Powell was subject to the same grand jury investigation that was probing the alleged financial ties Conahan and Ciavarella had to the PA Child Care Juvenile Detention Center that was co-owned by Powell.

There was a chance the trio might discuss defense strategy, which the government was not entitled to hear. So prosecutors formed a “taint” team – consisting of government officials who were not part of the investigation – to review the recordings and redact any privileged information before it was turned over to investigators.

It is a common tactic utilized by law enforcement officials, several experts in federal law said. But it is also one that has been the subject of significant legal challenges.

Ciavarella has filed a motion seeking to suppress the recordings. His case presents a particularly tricky situation, the experts said, because it involves issues that have not previously been directly decided by federal appellate courts.

There’s a lot riding on the outcome of the dispute. Should a judge agree with the defense, all or part of the recordings would be thrown out of court, as could other evidence the government gathered based on information it learned from the recordings.

Ciavarella and Conahan were charged last year with improperly accepting more than $2.8 million from Powell and real estate developer Robert Mericle in exchange for rulings that benefited juvenile centers that were co-owned by Powell and built by Mericle. Ciavarella remains the sole defendant facing trial as Conahan, Powell and Mericle have each reached agreements to plead guilty to charges related to the alleged scheme.

How strong the government’s case will be depends heavily on how U.S. District Judge Edwin Kosik rules on pre-trial motions.

One of the key issues in the suppression motion revolves around whether prosecutors should have turned over the tapes to defense attorneys before providing them to the investigative team.

Defense attorneys argue they should have been allowed to review the tapes so that they could make their own determination of whether certain information was privileged, before it was provided to the investigators.

They pointed to several federal appellate court rulings that have ordered prosecutors to provide defense attorneys with documents that were subject to a taint review so that the defense had a chance to object to the disclosure to investigators.

In his response to the suppression motion, U.S. Attorney Dennis Pfannenschmidt acknowledged those decisions. But he argued the circumstances in those cases differs from Ciavarella’s case because they involved documents that had already been seized, thus there was no danger that potential evidence could be destroyed.

In Ciavarella’s case, the government could not have consulted with defense attorneys because the investigation involved a covert operation in which Powell was having ongoing conversations with the judges about their alleged criminal activity. Had the taint team contacted the defense, Conahan and Ciavarella would become aware Powell was wearing a wire and would have stopped talking to him.

Pfannenschmidt further argued the prosecution team needed immediate access to the tapes because Conahan and Ciavarella were discussing the committing new crimes, including obstructing the grand jury investigation by perjuring themselves.

Daniel Fridman, a former federal prosecutor who now works as a defense attorney specializing in federal law, said the case presents a difficult legal dilemma for Kosik.

On one hand, the court does not want to preclude prosecutors from utilizing a legitimate investigative tool, said Fridman, an attorney with the law firm of Holland & Knight in Miami, Fl. But it also needs to ensure defendants’ rights are not violated.

Fridman said he is troubled by the prospect of prosecutors being permitted to make determinations regarding what information is or is not privileged without having some sort of checks and balances in place.

“This is a situation that seems to be much like the fox guarding the hen house,” Fridman said. “The real issue here is making sure there is some real and legitimate check on the government’s potential intrusion into privileged communications.”

Ellen S. Podgor, a law professor at Stetson University in Gulfport, Fl., said she understands the concerns raised by prosecutors, but believes there were avenues available to address those issues.

For instance, Podgor said prosecutors could have sought an “ex parte” hearing before a judge – which would not require them to notify the defense – and ask him or her to review the tapes prior to handing them over to investigators.

Podgor and Fridman, who are not involved in Ciavarella’s case, said they don’t have all the facts, so it’s difficult to predict how Kosik might rule.

But they and David Harris, a law professor at the University of Pittsburgh, agreed the ruling will be important because it addresses an issue that has not been directly ruled upon by appellate courts. Other cases involving challenges to taint teams have focused on the seizure of documents, not the review of recorded conversations.

“It presents a real issue that any court will take seriously,” Harris said. “You want to make sure things are done in a way the rules are respected so that the defendant and government are each getting the benefit the law accords them, but nothing more.”

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