Kids-for-cash Judge Has Some Convictions Tossed
James Halpin, Staff Writer
Jan. 09, 2018
A federal judge Monday reversed some of disgraced former Judge Mark A. Ciavarella Jr.’s convictions, finding that his trial attorneys’ failure to pursue a statute of limitations defense “may have altered the outcome” of his trial.
Ciavarella, 67, was convicted of 12 of 39 charges for accepting kickbacks in exchange for funneling juvenile defendants to detention centers built by wealthy developer Robert K. Mericle’s construction firm and operated by companies controlled by former local attorney Robert Powell.
He was seeking reversal on some of those counts, arguing his trial attorneys were ineffective for failing to raise statute of limitations claims before the jury.
In his ruling Monday, Chief U.S. District Judge Christopher C. Conner rejected that argument related to three counts of honest services mail fraud, but agreed the attorneys’ errors at trial could have changed the outcome related to counts of racketeering, racketeering conspiracy and conspiracy to commit money laundering.
“Counsel operated exclusively and unjustifiably on an erroneous assumption concerning a crucial point of law,” Conner wrote. “That error deprived Ciavarella of a viable defense.”
The judge wrote that Ciavarella will face a new trial at a later date on those counts. The remaining nine charges for which Ciavarella is serving time in prison still stand.
A spokeswoman for the U.S. Attorney’s Office did not immediately return a message seeking comment on the ruling.
Sandy Fonzo, who famously confronted Ciavarella outside federal court over the suicide of her son after placement in juvenile detention, noted that Ciavarella could once more be convicted on the three counts. But she described herself as being sickened by the ruling.
“I’m upset by the whole thing, but I’m not shocked. Nothing could ever shock me again after everything that’s happened,” Fonzo said. “I’m literally sick over it, and I just feel that any decreased time that he gets in prison is nothing but an absolute disgrace. I mean, one day less than one he got — it just sickens me.”
In appealing the conviction, Ciavarella’s attorney, Jennifer P. Wilson, of Duncannon, argued his trial attorneys should have sought a jury instruction about a five-year statute of limitations related to counts of racketeering, racketeering conspiracy and conspiracy to commit money laundering.
She noted the jury’s verdict slip showed jurors found Ciavarella violated federal law by accepting $1.6 million in kickbacks in January 2003, but he did not violate the law regarding a $1 million payment in July 2005 and another $150,000 payment in February 2006.
As a result, Ciavarella should not have been convicted on those three counts because the only transaction that jurors found was illegal took place more than five years before the indictment came down in September 2009, she argued.
During a hearing in September, Ciavarella’s trial attorneys William Ruzzo, of Kingston, and former Luzerne County public defender Al Flora Jr. freely admitted they had no reason for failing to raise a statute of limitations defense. In his ruling the judge also noted that the attorneys admitted they did not research the issue of when such a defense must be raised until after the trial was over, and that Ruzzo said he “absolutely” thought they erred in their handling of the statute of limitations issue.
“This confluence of errors mandates the conclusion that trial counsel’s performance fell below prevailing professional norms,” Conner wrote.
Reached Monday, Flora said the attorneys were ethically bound to testify honestly at the hearing and acknowledge they had inadvertently missed the statute of limitations defense — which came to be an issue because of the split verdict on the legality of the payments.
“You can be the best attorney in the world, but that doesn’t mean you’re perfect,” Flora said. “Neither of us anticipated that Mark would have been acquitted on all of the payments with the exception of the first Mericle payment, which is outside the statute of limitations.”
Conner’s ruling goes on to reject Ciavarella’s claim that such a defense would have been reasonably likely to result in his acquittal on three counts of honest services mail fraud, but Conner wrote that the issue is “more complex” related to the counts of racketeering, racketeering conspiracy and conspiracy to commit money laundering.
“The jury plainly did not believe Ciavarella accepted additional kickbacks or bribes after January 2003, but whether it believed the conspiracies continued beyond that date is simply unclear,” Conner wrote.
As a result, the judge determined that the jury’s verdict indicates a statute of limitations instruction “may have altered the outcome of these proceedings.” Conner granted Ciavarella a new trial on those counts alone, saying he would issue a separate order setting a new trial at a later date.
Ciavarella is six years into a 28-year prison sentence that he is serving at Federal Correctional Institution-Ashland in Kentucky.
Another judge snared in the scandal, Michael T. Conahan, 65, pleaded guilty to racketeering conspiracy charges and is now serving 17½ years in prison at Federal Correctional Institution, Miami.
The kids-for-cash scandal, which generated national attention, led to hearing and reforms, including creation of a juvenile justice task force that implemented programs in schools and developed youth aid panels to help first-time offenders.
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