Judge Recuses Self From Prison Abuse Case
Citing the possibility a fellow judge may be called as a witness, Lackawanna County Judge Terrence Nealon recused himself from the cases against two former prison guards charged with sexually abusing an inmate.
While stressing he has no doubt he could be impartial, Nealon said his continued involvement in the cases of Paul J. Voglino and James J. Walsh would create an appearance of impropriety that requires him to step aside.
Deputy Attorney General Rebecca Elo sought Nealon’s recusal, arguing he should not hear the cases because Judge Trish Corbett may be called to testify about a letter Jamie Tompkins,the victim in the Voglino and Walsh case, wrote to her in December 2005.
In the letter, Tompkins alleges unnamed guards sexually harassed her. By policy, The Times-Tribune does not identify victims of sexual assault, but Tompkins agreed to be identified.
Tompkins’ letter also is the basis of a separate motion Elo filed seeking Corbett’s recusal from the case against former guard Jeffrey T. Staff. Staff is not charged with abusing Tompkins, but prosecutors said she will be called as a witness. Corbett scheduled a hearing on that motion for Wednesday.
Walsh, 51, 209 Mosswood Road, Roaring Brook Twp.; Voglino, 46, 4 Rear Orchard St., Carbondale and Staff, 42, 459 Wyoming Ave. Apt. 4, Wyoming, are among seven guards charged in February with abusing inmates based on a statewide grand jury investigation. The other defendants are John Shnipes Jr.,43, 115 Simpson St., Archbald; George Efthimiou,51, 1121 Loomis Ave., Taylor; Mark A. Johnson, 54, 2213 Golden Ave., Scranton and George T. McHale, 51, of 513 Florin St., Scranton.
Walsh’s attorney, Christopher Caputo,and Voglino’s attorney, Joseph D’Andrea, opposed the motion regarding Nealon. Both attorneys questioned Elo’s motives for the motion, alleging it’s a baseless attempt to impugn the integrity of the entire Lackawanna County bench.
“The commonwealth has attempted to discredit the integrity of the Lackawanna County bench since the onset of these proceedings,” D’Andrea said. “Their ploy is not real, but manufactured in an attempt to manipulate the judicial process. Such a practice is repugnant and cannot be tolerated.”
D’Andrea and Caputo also questioned why Elo took so long to file the recusal motion given that prosecutors had Tompkins’ letter for months. They also argue the letter is irrelevant to their clients because Tompkins does not identify them, or any guard by name, as the perpetrator.
The letter, which Caputo cites in his reply, focuses on Tompkins’ request for leniency at a then upcoming hearing before Corbett. In one paragraph toward the end of the letter she writes, “one guard put his hands on me” and that she is still being “sexually harassed.”
In his ruling, Nealon chided the attorney general’s office for the late filing, noting he asked prosecutors in July if they wanted him to recuse himself. He got no reply so he continued to hear pre-trial matters in the case.
Nealon said that, while he would have preferred if prosecutors sought his recusal earlier, he believes it’s still appropriate because a judge must make several important rulings regarding Corbett. Those decisions include whether or not Tompkins’ letter is admissible and, if it is, whether Corbett can legally be called as a witness.
“While I genuinely believe that I would decide those evidentiary questions impartially and objectively based upon the facts and applicable law, my consideration of those issues could create an appearance of impropriety ... due to my professional respect for and friendship with that colleague,” Nealon said.
Nealon also cited President Judge Michael Barrasse’s decision earlier this year to recuse the entire bench from presiding over Shnipes’ case.
Shnipes was previously investigated by a 2013 grand jury, but was never charged because then District Attorney Andy Jarbola agreed not to prosecute him if he resigned from the prison. Shnipes’ attorney said he plans to call Jarbola, now a county judge, as a witness in support of his pending motion to dismiss all charges against Shnipes.
“There is precedent in this county for the recusal of a judge due to the fact that a colleague will likely be called to testify,” Nealon said.
No recusal motion has been filed in the cases against Efthimiou, Johnson or McHale, according to the court docket sheet.
Nealon’s order does not specify if another county judge will be assigned to the Voglino and Walsh cases or if an out-of-county judge will be appointed. That decision likely will be made by Barrasse.
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