Tuesday, February 22, 2011

Bad days to be a judge in PA.

It has been a bad couple of days for the judiciary in Pennsylvania. As the Associated Press reports, on Friday, Luzerne County Judge Mark Ciavarella was convicted of racketeering for taking over $900,000 in kickbacks from the builder of a for-profit juvenile detention center. He also failed to report these payments on his state-mandated financial disclosure forms. Moreover, he was tripped up by the same problem that caused Al Capone’s imprisonment. Judge Ciavarella did not pay taxes on the income the money he received.

Judge Ciavarella was convicted on 12 counts of racketeering, money laundering, and conspiracy. He was also acquitted of 27 other counts. Although he could get 157 years in prison on the convictions, prosecutors apparently intend to seek a sentence of around 12 years on the convictions. Judge Ciavarella, who was apparently (in)famous for ordering his juvenile defendants to be immediately shackled, handcuffed, and taken away without saying goodbye to their families, was released after the verdicts. He will remain free pending sentencing. Poetic justice is apparently not available in the United States District Court for the Middle District of Pennsylvania.

The judge’s actions caused the Pennsylvania Supreme Court to dismiss 4,000 juvenile convictions the Judge issued because he sentenced juveniles without regard for their constitutional rights, including the right to counsel.

So faced with 12 years in prison, an order to pay back the 900 grand, and 4000 convictions set aside, what did the judge do? He declared victory, of course. Al Flora, the judge’s attorney stated that he was “amazed” and that the “jury rejected 95% of the government’s case.” I wonder if it will still feel like a victory during the 12 years in prison.

An odd part of the case is that the person who led them to the judges is the reputed boss of a northeastern Pennsylvania Mafia family. William D'Elia. Mr. D’Elia became a government informant after his 2006 arrest on charges of witness tampering and conspiracy to launder drug money.

In other judges behaving badly news, there will a rather interesting hearing tomorrow in the district court of Adams County, Pennsylvania. As the York Daily Record notes, Janan Tallo, a public defender in York County, Pennsylvania, is seeking permanent order protecting her from abuse. Who is her alleged abuser? He is York County Judge Thomas Kelley. Ms. Tallo alleges that Judge Kelley, her “current or former sexual or intimate partner,” picked her up and slammed her to the floor of his home. She alleges that by slamming her to the floor, Judge Kelley broke her elbow. Ms. Tallo requested, and was granted, a temporary protection-from-abuse order and is now seeking a permanent order. The hearing is scheduled for 11:00 a.m., on February, 23.

The alleged abuse occurred around 11:30 p.m. on February 8 when Judge Kelley and Ms. Tallo had an argument over the phone. Ms. Tallo decided to drive to Judge Kelley’s home. He apparently invited her in, grabbed her, and slammed her to the floor. Ms. Tallo then left to go to the emergency room.

Judge Kelley, you may or may not be surprised to learn, denies that any abuse took place. In a statement released by his lawyer, Christopher Ferro, Judge Kelley “categorically” denied the “unfounded and false allegations that are contained in the recently filed, one-sided” request for protection. Because “Judge Kelley has too much respect for the judicial process,” he prefers “to address the matters in the proper forum and in an appropriate manner.” I wonder if the broke elbow part is false. Because it seems like it would be pretty easy to prove one had a broken elbow.

This case raises a number of questions. First, how can a judge have “too much respect for the judicial process?” Second, by calling Ms. Tallo’s petition “unfounded and false,” “one-sided,” and “baseless” in a statement to the media, didn't the judge address the allegations to the media? Third, is the broken elbow part false? Because it seems like it would be easy to prove one has a broken elbow. Fourth, what does Pennsylvania’s Code Judicial Conduct say about these sorts of relationships?

To answer the last question, Pennsylvania’s Code of Judicial Conduct doesn’t talk much about judges dating defense attorneys, or anyone else for that matter. Cannon 2 of the code states that “Judges should avoid impropriety and the appearance of impropriety in all their activities.” The official note to the cannon doesn’t talk about dating but does say that judges “must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” Perhaps dating public defenders falls into this category.

Cannon 3 of the code gets a little more specific. It states that “judges should perform the duties of their office impartially and diligently.” Subsection C of Cannon 3 says that Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned. This includes cases in which their spouse, “or a person within the third degree of relationship” acts as a lawyer in the proceeding. Ms. Tallo is not the judge’s spouse. As the note to Cannon 3 makes clear, a third degree relationship includes the “parents, grandparents, aunts or uncles, siblings, nieces or nephews or their spouses” of the judge or the judge’s spouse. According to the note, cousins are not covered by the rule. The cannon doesn’t talk about people whom the judge might date or have a “sexual or intimate” relationship. Prior the abuse allegation, the judge was hearing cases where Ms. Tallo was representing defendants.

But Judge Kelley isn’t hearing these cases anymore. In fact, now that these charges have come out he isn’t hearing any criminal cases where the defendant is represented by a public defender. York County President Judge (what an awesome title) Steven P. Linebaugh has removed Judge Kelley from all criminal cases. As one of only four judges on the York County criminal docket, I imagine this is a lot of cases. Implicitly noting the judicial cannons’ lack of guidance about romantic/sexual relationships, Judge Linebaugh said "If he is found to have done the things that are alleged, I expect the judicial disciplinary board would then have to determine if there has been any violation of the canons of judicial ethics" (emphasis mine).

So what do we take away from these incidents? I guess the lessons are that Judges ought to declare the kickbacks they receive and also not literally beat-up defense attorneys.