WILKES-BARRE — As area audiences turn out to watch disgraced former Judge Mark A. Ciavarella Jr. tell his side of the story in the non-fiction “Kids for Cash” film, the man so heavily implicated in the county judicial scandal sits in federal prison in Illinois, waiting for the final chapter in his legal saga to be written.
It could be many months to come before Ciavarella and his lawyers learn whether the U.S. Supreme Court decides to hear the ex-judge’s appeal of his federal conviction and sentence, defense attorney William Ruzzo told The Times Leader.
Ruzzo also acknowledges that the odds are slim.
In October, he and co-counsel Al Flora Jr. filed a petition for a writ of certiorari with the U.S. Supreme Court, in which they ask the justices to review the lower courts’ rulings on Ciavarella’s case. According to its website, the nation’s top court receives about 10,000 such petitions each year. Of them, the court grants and hears oral argument for only 75 to 80 cases.
And Ciavarella’s bid for a hearing is not without some stiff opposition. U.S. Solicitor General Donald B. Verrilli Jr. last month filed a response, arguing in a 28-page brief that Ciavarella’s case is not worthy of review.
In 2009, federal prosecutors charged Ciavarella and former county Judge Michael Conahan with participating in a $2.8 million kickback scheme related to the construction of the PA Child Care facility in Pittston Township and the Western PA Child Care Center in Butler County and the placement of youths in the facilities.
Conahan ultimately pleaded guilty to a charge of racketeering conspiracy and was sentenced to 17 1/2 years in prison.
Ciavarella was convicted in 2011 by a federal jury on 12 counts and sentenced to 28 years in what has widely been called the “Kids for Cash” scandal, a label he has repeatedly and vehemently rejected, insisting he never incarcerated children in exchange for money.
Ciavarella’s defense team unsuccessfully appealed his case to the 3rd U.S. Circuit Court of Appeals based in Philadelphia. That panel upheld all but one of the 12 convictions after trial before U.S. District Judge Edwin Kosik in February 2011.
Defense attorneys William Ruzzo and Al Flora Jr. argued Kosik should have recused himself after several testy exchanges that Flora contended showed a bias, as well as comments Kosik made in personal responses to letters from citizens.
The appeals court conceded Kosik shouldn’t have made the comments he did in the letters, but said that did not rise to the level set by the U.S. Supreme Court requiring recusal.
The Supreme Court filing by Flora and Ruzzo boils down to three main points:
• Kosik’s “secretive extra-judicial statements to non-parties expressing his personal opinion about Ciavarella and the merits of the case pending before him created an ‘appearance of impropriety’ warranting recusal.”
• Federal law sets a five-year statute of limitations on non-capital crimes. Because Ciavarella’s convictions arose from cash received from developer Robert Mericle in 2003, his 2009 prosecution clearly came after the five-year deadline, the attorneys say. As well, they argue that the matter was never addressed at trial, thus U.S. District Court and the U.S. Third Circuit Court of Appeals were wrong to reject appeals based on that point.
• Kosik at sentencing took into consideration conduct Ciavarella was accused of under 27 counts for which the jury acquitted him. Flora and Ruzzo argue that without such a consideration, Ciavarella would have faced a sentencing guideline of about 12 to 15 years’ imprisonment (151 to 188 months). Instead, he got 28 years, “due to the consideration of acquitted conduct,” leaving Flora and Ruzzo to ask whether that violated due process and the right to trial by jury.
Solicitor general’s response
The government’s argument includes the following key points:
• The appeals court emphasized that the only letters in which Kosik expressed personal opinions also contained assurances that his personal opinion would not guide his rulings, Verrilli argued, and extra-judicial comments Kosik made to a newspaper reporter did not differ from what he said in court.
• Arguments about the statute of limitations lack merit, Verrilli wrote, because Ciavarella’s actions were part of an ongoing conspiracy that continued through 2009.
• As for sentencing, Verrilli argued that guidelines are advisory, but not mandatory. He also interpreted a previous Supreme Court ruling to mean nothing “would preclude a judge from finding facts that increase (the sentencing) range by a preponderance of the evidence, whether or not the jury found those same facts under a reasonable-doubt standard.”
Court’s decision awaited
Ruzzo said when interviewed last week that he had not recently spoken with Ciavarella about the case. Indeed, when there is an answer from Washington, he may not have much to say.
Whether the court accepts a case or not, the news of its decision is typically a terse order indicating the decision without reasoning or explanation.
A decision could come by the end of the annual term in June. According to the court’s website, regularly scheduled lists of orders, including acceptance and rejection of cases, are issued on each Monday that the Court sits, although miscellaneous orders may be issued in individual cases at any time.