Rejecting Judge Ann H. Lokuta's claims that revelations of widespread corruption in the Luzerne County Courthouse warrant a re-examination of her case, the Pennsylvania Court of Judicial Discipline denied Lokuta's bid to regain her position on the bench in a sharply divided decision Monday.
In an opinion for the four-judge majority, Judge Richard A. Sprague found that none of the material Lokuta submitted in support of her request for a new sanctions hearing satisfied a four-prong test for the admissibility of after-discovered evidence.
Lokuta had asked the court to consider the impact of allegations of corruption against two former Luzerne County president judges, Michael T. Conahan and Mark A. Ciavarella Jr., and embezzlement charges against the county's former court administrator, William Sharkey, on the court's decision to remove her from the bench.
All three were witnesses in Lokuta's trial on conduct charges that resulted in the court's October 2008 finding that Lokuta violated provisions of the state constitution and brought the judiciary into disrepute. The court decided in a December 2008 sanctions hearing that the misconduct warranted her removal from the bench.
Lokuta, during her trial and in subsequent appeals, asserted that she was a victim of a conspiracy to get rid of her for standing up to corruption and for going to authorities with her suspicions. She argued in her request for a new sanctions hearing that the revelation of widespread corruption shows the entire proceeding was tainted.
"What Conahan and Ciavarella did concocting and carrying out their criminal scheme, or what Sharkey did helping himself to county money in no way dictate or make likely a different outcome in the case of In re Lokuta," Sprague wrote for a 4-3 majority. "In no way does it turn these witnesses into liars -- and that is what is necessary to make a different outcome likely."
Lokuta also asked the court to consider statements from individuals who spoke of Conahan's relationship with a reputed mob figure, Conahan and Ciavarella's alleged plot to "get rid of Lokuta," and the reputations of various judges in the Luzerne County Courthouse and their relationships with one another.
Sprague found Lokuta's submissions "deal with matters of no consequence," that they have no connection to revelations of corruption, are not after-discovered evidence and have no bearing on Lokuta's trial.
Two judges joined Judge Kelley T.D. Streib in a strongly worded dissenting statement in which she concluded Lokuta has been prevented from demonstrating that the atmosphere of corruption that existed in the Luzerne County Courthouse was the reason for some of the behavior for which she was sanctioned.
"The stench of corruption that was present in the Luzerne County Courthouse has permeated and infected these proceedings from the outset," Streib wrote. "Judge Ann Lokuta did not participate in the wide ranging corrupt practices ... She nevertheless had to work with and among the parties to these nefarious activities, and function in this polluted culture and environment."
Lokuta's lawyers, Ronald V. Santora and George Michak, said Streib's dissent also addresses their biggest disappointment in the CJD's decision: The court narrowly interpreted the Supreme Court's remand order to mean that it was to conduct an analysis of the requirements for evidence to qualify as after discovered.
"I also believe that the Supreme Court knows full well the requirements for after-discovered evidence and did not gratuitously use the phrase 'in the nature of after-discovered evidence' in remanding the case to us," Streib wrote. She said she believed the court "had a broader scope in mind."
Santora said Sprague's interpretation of the order "stops time" at March 25, when the Supreme Court issued the order, and doesn't allow consideration of information revealed after that point.
Santora said that under Sprague's reasoning, Lokuta's case would not be revisited even if every one of the witnesses in the case had been indicted on perjury charges.
Michak said it makes no sense the Supreme Court would limit after-discovered evidence to the theft charge against Sharkey but not allow subsequent testimony in another case that Sharkey was involved in a broader case-fixing scheme. Such evidence would have direct relevance to Lokuta's case, Michak said.
Santora and Michak said they plan to first file a request for reconsideration before the CJD, but said they expect the case will end up before the state Supreme Court. They said they are also exploring the possibility of pursuing a claim in federal court.
"We feel there are very serious problems including serious deprivations of rights including due process and we are looking very seriously at remedies in federal court," Santora said.
Joseph A. Massa Jr., chief counsel to the Judicial Conduct Board, which prosecuted the case against Lokuta, declined to comment on the CJD's decision, citing Lokuta's intent to appeal to the Supreme Court.
Shira Goodman, associate director of Pennsylvanians for Modern Courts, said her organization has taken the position that Lokuta should have received a new trial, not just a new sanctions hearing.
"She doesn't seem to be getting the same deal as some of the other people who were affected by Conahan and Ciavarella," Goodman said, referring to a pair of civil cases in which the Supreme Court ordered new trials. "They're all getting new trials and starting over again with a clean slate."
Sprague's opinion denying Lokuta's request for a new hearing is technical, Goodman said, and based on the rules of admissibility for after-discovered evidence. She said it does little to bolster public confidence in Pennsylvania's system of judicial discipline, especially in light of the JCB's reluctance to provide information to the Interbranch Commission the Supreme Court convened to investigate corruption in Luzerne County.
"I would have liked the JCB to say, 'We believe we have a strong case against Judge Lokuta and we want to have a new trial without the taint from these guys,'" Goodman said.
A SECOND CHANCE
Lokuta won a decision by the state Supreme Court in March to stay the election to fill her seat on the Luzerne County Court of Common Pleas. At the same time, the Supreme Court remanded her case to the Court of Judicial Discipline to determine whether it should reconsider its decision to remove Lokuta in the wake of charges against witnesses in her trial.
Conahan and Ciavarella are charged with accepting $2.8 million in kickbacks from the owner and builder of two for-profit juvenile detention centers where Ciavarella steered adjudicated youth when he was in charge of the county's juvenile court. Sharkey pleaded guilty to taking about $70,000 in seized gambling proceeds entrusted to the court.
A fourth witness in Lokuta's trial, former Luzerne County Prothonotary Jill Moran, resigned and entered into an agreement to cooperate with federal authorities in their investigation.
Lokuta argued that the existence of corruption tainted her trial and that its revelation after her sanction was decided entitles her to a reconsideration.
In evaluating Lokuta's claim, Sprague applied a four-prong test examining the after-discovered evidence for relevance to her case.
"It is surely true that the conduct described in the Informations against Conahan, Ciavarella and Sharkey is condemnable, deplorable, even shocking, but that is not the question," Sprague's opinion says. "The question is: is it after-discovered evidence? And more broadly: is there any nexus -- any connection at all -- between that conduct and the trial of Ann Lokuta?"
Sprague found the evidence of Conahan, Ciavarella and Sharkey's alleged criminal behavior could not have been obtained before the trial and is not corroborative of testimony given during the trial -- thus satisfying the first two prongs of the test. However it has no connection with Lokuta's behavior and would not require a different outcome in the case, therefore failing to satisfy the third and fourth prongs of the test.
Following the Supreme Court's remand to the CJD, the disciplinary tribunal granted Lokuta time to conduct an investigation and interviews to obtain evidence in support of her claim she was entitled to a new sanctions hearing.
At the end of the 90 days granted by the CJD, Lokuta submitted the statements of four individuals regarding Conahan and Ciavarella's behavior in the courthouse and the reputations of the president judges and Lokuta. She also submitted a letter from a Cambria County judge who overheard Ciavarella expressing his contempt for Lokuta and a statement from Lokuta herself regarding a Luzerne County lawyer's statements to local journalists regarding his relationship with Conahan and that of a court reporter who was a witness in the trial.
Sprague rejected each of the six pieces of evidence after determining they failed to meet the four-prong test.
In one statement, a courthouse security guard named Patricia Benzi described how she delivered envelopes from Billy D'Elia, the reputed head of the Northeast Pennsylvania mob, to Conahan. Benzi stated that she was also given an envelope by D'Elia to deliver to Lokuta, who rejected the envelope.
"We ask, how is this relevant? How is this admissible in the Lokuta case? We don't even know what was in the envelopes," Sprague wrote. "It cannot seriously be argued that this 'evidence' would be likely to result in a different outcome, or would cause us to change the sanction that we imposed."
Another statement, from Luzerne County lawyer Joseph Novak, detailed an overheard conversation between Conahan and Ciavarella about a desire to see Lokuta off the bench.
"In so far as after discovered evidence is concerned, it should be clearly understood, that this isn't even new (first prong). Conahan's dislike for Lokuta was never unknown. It was known at the trial. It was established at the trial," Sprague wrote.
ATMOSPHERE OF CORRUPTION
In her dissenting statement, Streib said evidence that Lokuta was exposed to an atmosphere of widespread corruption could present a mitigating factor in favor of an altered sanction.
Streib said that while some of the charges against Lokuta have nothing to do with the alleged criminal conduct occurring elsewhere in the courthouse, other aspects of the case against her take on a different significance in light of the "unprecedented level of corruption."
"Based on what we knew then, not what we know now after the federal criminal indictments and allegations of widespread corruption within the courthouse, it was believed that Judge Lokuta was 'on a war footing, battle-ready for the warfare which she daily waged with the court departments and other judges, particularly the president judges of Luzerne County,'" Streib wrote.
That criticism takes on an entirely new significance in the context of the alleged corruption, she said.
"Indeed, it is most ironic that Judge Lokuta would be criticized by this court for isolating herself and her staff from the very people who have now been indicted for misusing their public office and position to commit crimes that strike at the heart of our judicial system," Streib wrote. "And, it is also most ironic that these same people are called by the board to bear witness against Judge Lokuta, but yet she is precluded from presenting evidence regarding their far more serious misdeeds and criminal activities."