Kids for Cash

by William Ecenbarger

  Pennsylvania is one of thirty-nine states where judges have to run for election; the other states choose members of the judiciary through some sort of merit selection process similar to the federal system. There is no perfect way to choose the men and women who preside over courts, but election is one of the worst. In an arena where integrity and independence are paramount, candidates are subjected to the corrupting influence of cash campaign contributions.

  In politics, money not only talks—it keeps up a running conversation. And so, not surprisingly, among the most regular contributors to judges’ campaigns are the lawyers who will practice before them—a stark state of affairs that has led former U.S. Supreme Court Justice Sandra Day O’Connor to warn, “This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”

  Nor is it surprising that the judiciaries in these thirty-nine states are regularly rocked by scandals. In Pennsylvania in the 1980s, more than a dozen Philadelphia judges were found to have accepted cash from the leaders of the local roofers’ union. Two of them went to jail and thirteen others resigned or were removed from office. And in 1994 a state Supreme Court justice was impeached by the state House of Representatives, convicted in the Senate, and ousted from office. Those are just the ones that got caught. But these black marks on the judiciary were mere prefaces to what Judges Ciavarella and Conahan would bring to Pennsylvania’s checkered judicial history.

  The other problem with electing judges is that our system of justice needs stewards who are steeped in the law and not afraid to make unpopular decisions. But in partisan elections, candidates do well when they tell voters what they want to hear. Thus it was that when Mark Ciavarella announced he was a candidate for a vacancy on the Luzerne County Court, he stood in front of a banner reading, “A Re ‘Mark’ Able Choice for Judge,” and told a gathering of some three hundred supporters in a downtown Wilkes-Barre hotel ballroom, “It’s time for people who break the law to realize they’ll be punished.” He said he would be a “citizens’ judge” and pledged to “return to a time when values had importance.”

  In the May 1995 primary election, Ciavarella won the Democratic nomination by a scant 378 votes and prepared to face Joseph Yeager, the Republican nominee. During the long campaign, Ciavarella several times danced very close to the line between ethical and unethical behavior for judicial candidates. “He said he would not accept plea agreements,” recalled Judge Gibbons. “This was outlandish and the product of a mind that had never been in criminal court, at least not very often.” Candidate Ciavarella denigrated courts’ attempts to prescribe alternatives to jail time, saying, “I believe our system is no longer a punishment system in many instances. The greatest rehabilitative tool we have is punishment.” In his campaign appearances, he challenged voters to keep score on the tough-on-crime pledge, and he drew standing, protracted ovations with this line about sex offenders and drug dealers: “Those individuals will get the harshest punishment I’m allowed to impose under the Pennsylvania sentencing guidelines. If you violate our rights, you’re going to pay, you’re going to pay dearly.” Armed with $450,000 in campaign contributions, Ciavarella carried this message in television, radio, and print advertising. A lot of this money came from local attorneys, but when Ciavarella was asked if this would present any conflict-of-interest problems when he got on the bench, he snapped, “Anybody who has donated money to my campaign and thinks they’re going to get anything other than a level playing field wasted their money.” Yeager, with a budget of only $70,000, was defeated by nearly six thousand votes.

  Among the new judge’s staunchest supporters were Lori Umphred, a friend; Donald Rogers, Ciavarella’s law partner; Joseph O’Hara, the basketball coach at St. Mary’s High School; and an up-and-coming commercial real estate developer named Robert K. Mericle. Soon after taking his oath in the Luzerne County Courthouse, Ciavarella handed out three jobs—Umphred as his secretary, Rogers as his law clerk, and O’Hara as his tipstaff. Far bigger things were in store for Rob Mericle.

  Just a few months after graduating from Temple University Law School with mediocre grades in 1977, Mike Conahan managed to become a district magistrate in his hometown of Hazleton, Pennsylvania, in southern Luzerne County, some twenty-five miles down Interstate 81 from Wilkes-Barre—a minor miracle considering that Conahan was only twenty-five years old. Nevertheless, he was appointed to the post by Gov. Milton J. Shapp to temporarily fill a vacancy that opened when the incumbent magistrate resigned while under investigation by the Pennsylvania Crime Commission for ties to organized crime. No one was stunned that the local magistrate would have such ties. Hazleton is that kind of place.

  Magistrates are the lowest rung on the judicial ladder in Pennsylvania—there are more than five hundred of them—and are charged with handling minor criminal matters, traffic cases, and small claims. Nevertheless, Conahan’s leap from law student to magistrate was remarkable and due in no small part to his father, Joe Conahan, the local funeral director and three-time mayor who had connections reaching all the way to Harrisburg.

  Conahan had grown up in Hazleton in the 1960s as one of nine children of Joseph and Elizabeth Conahan. He attended St. Gabriel’s Catholic elementary school, Hazleton High School, and Villanova University, before going to Temple in 1974. He met his wife, Barbara, in the ninth grade.

  Two years after his interim appointment, Conahan was elected to a full six-year term as magistrate in 1979, and he won reelection in 1985 and 1991. During his sixteen years as magistrate, Conahan developed many outside business and professional interests. As a private attorney, he handled real estate deals for the Scalleat family, which has been repeatedly identified by state investigators as part of the Bufalino organized crime family of northeastern Pennsylvania. Joseph Scalleat was well known for his 1951 appearance before the U.S. Senate Special Committee to Investigate Organized Crime in Interstate Commerce in which he repeatedly refused to answer questions by invoking his Fifth Amendment rights. Conahan also was a business partner with the Scalleats in a so-called gentlemen’s club called the Golden Slipper Lounge.

  On February 27, 1993, Conahan stood at a podium at the Ramada Hotel in downtown Wilkes-Barre and announced he was running for county common pleas judge. He pledged to turn down any campaign contributions from local lawyers or their spouses so he could preside from the bench impartially. “This will guarantee that there will not even be the remote possibility that when I am hearing a case my mind could in any way be clouded between the arguments of a lawyer who contributed to my campaign and perhaps one who didn’t,” he claimed. In his campaign, Conahan portrayed himself as having more integrity than his opponent—and in the world of Luzerne County politics, he may have been right.

  After a nasty campaign, Conahan won both the Republican and Democratic nominations in the spring primary, guaranteeing his landslide election in November. Conahan told voters they should elect him because of his proven abilities as a crime fighter. But, as it turned out, Conahan already was part of the local crime problem rather than an agent of its solution.

  Indeed, in August 1994, just eight months after Conahan put on his judge’s robes, a transcript surfaced from the 1991 trial of Ronald Belletiere, who was convicted of operating a large-scale cocaine ring in Hazleton during the 1980s when Conahan was magistrate there. A witness at that trial, Neal DeAngelo of Hazleton, testified that Conahan had called him in 1986 to warn him against buying drugs from a man who was under investigation and offered instead to put him in contact with Belletiere to buy cocaine. DeAngelo said Belletiere later called him “at the direction of Mike Conahan to see if we can do some business.” The trial transcript also showed that the federal prosecutor referred to Conahan as an “unindicted co-conspirator.”

  But Conahan was never charged in this matter, and he survived an inquiry by the state Judicial Conduct Board, which is supposed to investigate a
lleged misdeeds by judges. Conahan called the charges “outrageous and unfounded” and said they came from “common criminals trying to help themselves at my expense.” However, he did admit knowing Belletiere and DeAngelo and performing legal work for them. Indeed, he said he was the godfather of Belletiere’s daughter.

  Belletiere served four years in prison as a drug trafficker, but that did not deter Conahan from maintaining business and personal relationships with him. Barbara Conahan, the judge’s wife, and Belletiere opened a Mercedes-Benz dealership in 2004. And Belletiere was registered as a permanent guest at the Conahans’ condominium in Jupiter, Florida.

  Judge Conahan soon struck up a close relationship with William D’Elia, who became the organized crime leader in northeast Pennsylvania in the waning years of the twentieth century. As he consolidated his power around the Luzerne County Courthouse, giving jobs to friends, taking them away from enemies, Mike Conahan became “the Boss.” He also eased into a friendship with another newcomer to the Luzerne County bench—Mark Ciavarella. In the beginning, common pleas judges were paid $90,000 a year, plus generous benefits. Within ten years, they would each be getting $158,000 in salary. It wouldn’t be nearly enough.

  Eight months after he joined the court, Mark Ciavarella was named juvenile court judge. Growing up in Luzerne County was about to get a lot more difficult for some kids. True to his campaign promises, Ciavarella began imposing maximum sentences on child defendants. He was especially tough on school violence, and in October 1998 he imposed a policy that students found guilty of violent acts on school grounds would automatically spend one month in an out-of-home detention facility—and their parents would be required to pay up to $400 a month to help defray the cost. Ciavarella was able to do this because, as the only juvenile court judge, he effectively was empowered to set policy for juvenile proceedings. The get-tough stance won quick support from District Attorney Peter Paul Olszewski Jr., who said it would be a deterrent. “I think it’s going to have an effect, because word is spreading,” he said. School administrators were even more enthusiastic. Jeffrey T. Namey, superintendent of the Wilkes-Barre Area School District, praised the new policy because he said students who once argued verbally were now turning directly to physical force. “Judge Ciavarella is very responsible and holds young people accountable for their actions,” Namey added.

  There were only a few objectors. Ferris Webby, a local defense attorney, pointed out that taking a child out of the home for a month might be too severe a step for first-time offenders who might do something as minor as push another student. But mostly the approximately seven hundred members of the Luzerne County Bar Association kept quiet. After all, Ciavarella heard juvenile cases only two days a week, and on the other three days he handled adult criminal issues and civil cases. The lawyers who appeared before him in juvenile court were the same lawyers who had to argue before him the rest of the week. And Ciavarella, like all judges, had the power to impose extreme penalties on them. He could send lawyers to jail for up to six months if he found them in contempt. Any judge who was willing to abuse this power, as Mark Ciavarella was, could influence the outcome of cases and intimidate the attorneys who came before him.

  The only serious opposition to Ciavarella’s courtroom conduct came from Juvenile Law Center, a Philadelphia-based advocacy group, which accused him of incarcerating a thirteen-year-old boy, Anthony, in 1999 without advising the boy of his right to a lawyer. The Pennsylvania Superior Court agreed with the Law Center and overturned Anthony’s adjudication. The court’s decision was inescapably clear: “When a respondent appears without counsel at any stage of a delinquency proceeding, the court has both a constitutional and a statutory duty to inform the child of his right to counsel, and his right to have court appointed counsel if he cannot afford representation.” Publicly, Ciavarella was contrite and told the Times-Leader it would never happen again in his courtroom: “They obviously have a right to a lawyer and even if they come in and tell me that they don’t want a lawyer, they’re going to have one.” Privately, he summoned the entire juvenile court staff to his chambers and said in mocking tones, “Everyone’s going to have an attorney now because the Superior Court says that’s how it’s going to be.”

  But Ciavarella’s pronouncement was a monstrous lie.

  The American idea that children ought to be treated different than adults in courts of law had halting origins in the early days of the nation. The first institutions designed specifically for juveniles were called houses of refuge and they appeared in the first quarter of the nineteenth century. The houses were intended to get wayward youth off the streets, set them on the moral path, and then return them to society. Next came reform schools that added the dimension of education. But a nine-year-old girl named Mary Ellen Wilson brought the nation’s attention to the need for society to protect children in 1874. A missionary found Mary Ellen in a New York City tenement, where, abused and starving, she was imprisoned by her mother, who had adopted her as an orphan. The girl had been repeatedly struck with a whip and slashed with scissors. When the social worker tried to rescue her, she found there was no appropriate agency to take her in. In desperation, she turned to the American Society for the Prevention of Cruelty to Animals, which persuaded a court that the child was a member of the animal kingdom and therefore deserving of protection like a stray dog or cat. There was a storm of protest about Mary Ellen’s vulnerability and then an energetic reform movement to protect children in general.

  The first juvenile court was established in 1899 in Chicago by reformers who were appalled at seeing children, some as young as eight years old, housed with adult criminals in the Cook County Jail. Other states soon followed, and before long there was a national movement of creating separate systems of courts, law, and facilities for children. By 1925, forty-six states and the District of Columbia had separate courts for juveniles, part of a larger social movement centered on the idea that the state had an obligation to protect its young people. Child labor laws were passed, restrictions were placed on the sale of tobacco and alcohol, and safety regulations were enacted for toys.

  One of the central points of the juvenile reforms was that children are developmentally different from adults and therefore less responsible for their misdeeds, as well as more likely to be rehabilitated. Children should not be viewed as “little adults,” but rather as individuals distinct from their elders and requiring the guidance of responsible adults. Because of these differences, the society in general had a moral responsibility to serve as a kind of super parent to endangered children. For the juvenile court system, this meant focus on rehabilitation rather than punishment.

  At the same time, however, there was always widespread public fear about juvenile delinquency. Few generations escaped the perception that they were experiencing a juvenile crime wave. In the early days of nationhood, there were worries about wayward youth in Boston, Philadelphia, and New York. Successive generations were convinced that the “youth of today” engaged in much more dangerous and antisocial behavior than their own generation did. In the early years of the twentieth century, there was great concern about “bad literature,” including newspaper stories that gave “details of such criminals as Jack the Ripper” and “bad theaters” showing movies like Buffalo Bill that led to “uncontrolled excitement and a craving induced in the poorer children which leads them to steal in order to get the entrance fee.” By 1920, the automobile and “un-chaperoned rides” had been added to movies and jazz as sources of youth corruption. After World War II, FBI Director J. Edgar Hoover warned of a “flood tide” of youth violence, and the U.S. Senate held public hearings on the rising problem of juvenile delinquency. The chairman, Senator Estes Kefauver, a Tennessee Democrat, opened the hearing by proclaiming that no town in America was safe from the epidemic. There were efforts to censor movies and books, especially comic books, from spreading the wrong values.

  Near the end of the twentieth century, an increase in violent acts by juveniles led st
ate legislatures to blur the line between childhood and adulthood. Contemporary adolescents were believed to be more mature than those of past generations and therefore needed to be treated more as adults. Perhaps the most extreme manifestation of this attitude was displayed by a Texas legislator who advocated executing eleven-year-old miscreants because “some of the kids that are growing up today just aren’t the Leave It to Beaver kids that I grew up with.”

  Zero tolerance—a policy of mandatory punishment for given offenses without regard to the special circumstances of the individual—started with the Gun Free School Act of 1994, which required expulsion or suspension for any student bringing a firearm to school. Soon, zero tolerance was expanded to include any weapon, then drug and alcohol use, fighting, disrupting class, foul language, skipping school, and many other forms of misbehavior. Disciplinary matters once dealt with by school authorities now became matters for the police.