28 YEARS

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

SCRANTON – For more than a decade, federal prosecutors say, perpetrated a “profound evil” upon juveniles in Luzerne County, unjustly incarcerating them as part of a scheme to enrich himself.

Former Luzerne County Judges Michael Conahan, left, and Mark Ciavarella, right, depart the Federal Courthouse in Scranton after facing indictments relating to the Luzerne County corruption probe.

Fred Adams / For Times Leader

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Timeline in the Ciavarella case

Jan. 26, 2009: Federal prosecutors announce then-judges Mark Ciavarella and Michael Conahan have signed a plea agreement that calls for them to each plead guilty to honest services fraud and tax evasion in exchange for 87-month prison sentences.

Feb. 12, 2009: Ciavarella and Conahan formally enter guilty pleas to the charges before U.S. District Court Judge Edwin Kosik.

July 31, 2009: Kosik rejects the plea agreements, saying he did not believe the former judges had adequately shown they accepted responsibility for their crimes.

Aug. 24, 2009: Ciavarella and Conahan formally withdraw their guilty pleas.

Sept. 9, 2009: Federal prosecutors file a 48-count indictment against Ciavarella and Conahan, charging them with multiple counts including racketeering, honest services fraud, bribery, extortion, mail fraud, money laundering and tax evasion.

Sept., 15, 2009: Ciavarella and Conahan enter pleas of not guilty to the indictment.

April 29, 2010: Conahan enters a plea deal with federal prosecutors that calls for him to plead guilty to one count of racketeering conspiracy. There is no agreement on sentencing.

July 23, 2010: Conahan enters a guilty plea to racketeering conspiracy.

Sept. 29, 2010: A new, 39-count indictment is filed against Ciavarella. The indictment makes technical alterations to the original indictment based on a U.S. Supreme Court decision that impacted the honest services fraud statute.

Feb. 7, 2011: Ciavarella’s trial begins in federal court.

Feb. 19, 2011: The jury returns its verdict, finding Ciavarella guilty of 12 counts, and not guilty of 27 counts filed against him.

Aug. 11, 2011: Kosik sentences Ciavarella to 28 years in federal prison.

On Thursday, the tables turned against the 61-year-old former judge as he found himself on the receiving end of a 28-year prison sentence that in all likelihood assures he will spend essentially the rest of his life in prison. He was also ordered to pay nearly $1.2 million in restitution.

The sentence was nearly four times the length of the 87-month prison term Ciavarella and his one-time co-defendant, ex-Judge Michael Conahan, had previously worked out with prosecutors in a plea agreement reached in January 2009. The deal was later rejected by U.S. District Judge Edwin Kosik.

Ciavarella, his family and others in the courtroom showed little reaction when the sentence was read. At Ciavarella’s request, he was taken immediately into custody. He was transported by federal marshals to an unknown facility to await transfer to a federal prison that will be designated at a later date.

Kosik imposed the sentence following a roughly hour-long hearing at which Ciavarella first apologized to all those he had harmed, then turned defiant as he again denounced the “kids for cash” moniker with which he has been branded.

Ciavarella was convicted in February of 12 of 39 counts, including racketeering, money laundering, mail fraud and tax evasion relating to his acceptance of nearly $1 million from Robert Mericle, the builder of the PA and Western PA Child Care juvenile detention centers.

Addressing the court, Ciavarella acknowledged he illegally accepted money from Mericle. But he denied that he ever jailed a juvenile in exchange for cash, or that he violated the civil rights of youths who appeared before him.

“I blame no one but myself for what has happened,” Ciavarella said during a 20-minute address to the court. “I had the opportunity to say ‘no’ to taking money that I believed was legal to receive, but knew that I should not take ... because it was wrong and unethical for me do so, especially in my capacity as a juvenile court judge.”

Ciavarella apologized to his family, the citizens of Luzerne County, his former colleagues on the bench and probation department employees. He also apologized to juveniles who appeared before him, saying he hoped they could forgive him “for being a hypocrite by not practicing what I preached.”

Takes the offensive

But just moments later, he launched into an attack on the government’s case, accusing Assistant U.S. Attorney Gordon Zubrod of coining the “kids for cash” phrase and of spewing mistruths that portrayed him as “the personification of evil” and the “anti-Christ.”

“He uttered these words, knowing full well there was little or no evidence of me receiving a dime to send a child into placement,” Ciavarella said.

Because Zubrod did not present that segment of the case at his trial, he was robbed of his chance to defend himself and prove his innocence, Ciavarella said.

“When he had the chance to put up or shut up, he failed to put up. He shut up because once he learned how the juvenile system operated ... he realized there was no connection between the money I had received and the children I placed at PA Child Care,” Ciavarella said.

Ciavarella also denounced reports by special investigative panels that determined he had denied juveniles their constitutional rights, leading the Supreme Court to vacate the convictions of roughly 5,000 juveniles who appeared before him from 2003 to 2008.

“My courtroom was conducted in a fair and reasonable manner. These kids were not denied their rights. They had a right to counsel. They had a right to confront witnesses,” Ciavarella said, eliciting hushed expressions of disgust from the roughly 100 people who packed the courtroom.

Prosecutor’s argument

It was that defiance and refusal to accept responsibility that warranted a sentence that would ensure Ciavarella spends the rest of his life in prison, Zubrod told Kosik.

Zubrod said the evidence showed Ciavarella and Conahan used their power as judges to strong-arm Robert Powell, the owner of the PA and Western PA Child Care, into paying them money.

Zubrod said Ciavarella regularly confronted Powell with admission information from the two centers, telling him “you’re making a lot of money from the kids we send you. You owe us.”

“It seems to me Mr. Ciavarella says I was not selling kids retail. We agree. We think he was selling them wholesale,” Zubrod said.

Ciavarella’s attorneys, Al Flora and William Ruzzo, objected to Kosik’s decision to consider Ciavarella’s actions in juvenile court in determining what sentence to impose in the federal case.

The attorneys argued the information was irrelevant because Ciavarella was acquitted of all charges relating to the alleged extortion of Powell, and because prosecutors never presented evidence at trial that linked the payments to juveniles who were incarcerated.

In court, Flora said statistics showed that Ciavarella’s incarceration rate was similar to those in other counties.

“The government never charged, nor was he ever convicted, of violating the civil rights of any juvenile by remanding them to incarceration for money,” Flora said.

Kosik did not state his reasoning relating to his decision regarding the sentence, saying only that “everything about this case has already been said.”

Speaking after the hearing, Flora said Ciavarella intends to appeal his conviction and sentence. The sentence was within federal sentencing guidelines, which called for a sentence up to life in prison. Flora said he intends to argue the sentence violates the U.S. Constitution’s prohibition against cruel and unusual punishment.

“You had a guy who was acquitted of 27 counts and found responsible for receiving one payment and to get 28 years? I’ve represented people who committed third degree murder who have gotten seven to eight years,” Flora said. “It’s quite a shock.”

‘Just and fair’

U.S. Attorney Peter J. Smith said he felt Kosik properly considered all factors and the sentence was “just and fair.” Ciavarella’s defiant attitude likely didn’t earn him any favor with Kosik, Smith said.

“It indicated no true remorse and a blind unwillingness to admit to the overall seriousness of his conduct,” Smith said.

He also refuted Ciavarella’s contention that the government had failed to show his incarceration of juveniles was connected to the money he received.

Smith acknowledged there was little to no evidence regarding a specific cash payment made for any particular juvenile. But the government did not need to show that to prove its case, he said.

“It’s a very clever and interesting argument ... that somehow that makes him innocent,” Smith said. “There was an overall corrupt scheme ... All the while he was sitting on the bench deciding these cases and sending juveniles to one place or another he was involved in a corrupt relationship with those who stood to benefit from every action or inaction he took.”

Ciavarella’s sentencing appears to now clear the way for the sentencing of Conahan, who pleaded guilty in July 2010 to one count of racketeering conspiracy, as well as Mericle and Powell, who also pleaded guilty to charges related to the scandal.

Ciavarella had also been offered the chance to enter a new plea, but Flora said he refused because prosecutors wanted him to admit to a crime he did not commit.

“Mark’s attitude all along is he never accepted a bribe or kickback in exchange for sending a child to a detention facility. He maintains that to this day,” he said.

Related Video: Sandy Fonzo Confronts Ciavarella