Report Urges Sweeping Changes for Pa. Juvenile Courts, Judicial Conduct Board

Leo Strupczewski

The Legal Intelligencer

A commission charged with reviewing the Luzerne County, Pa., judicial corruption scandal released a 66-page final report Thursday, recommending scores of new procedures to protect juveniles who appear in the state's delinquency courts and to increase judicial accountability.

Some 43 recommendations were made to review and revise the state's juvenile delinquency process, the roles of judges, masters and prosecutors in those cases and the state's judicial disciplinary system. Most notable, however, may be a recommendation that was not made.

The Interbranch Commission on Juvenile Justice, formed last year after charges were filed against Luzerne County Judges Michael T. Conahan and Mark A. Ciavarella Jr. for allegedly sending minors to a private detention center in exchange for $2.8 million, chose not to back the often recited and highly publicized recommendation of making juvenile delinquency proceedings open to the public.

Instead, the commission chose to adopt dozens of recommendations that appear to be aimed at increasing transparency in a more limited manner.

An increase in state oversight of juvenile delinquency matters, expedited juvenile delinquency appeals and a reduced right of juveniles to appear in court without counsel are all necessary when discussing how best to fix problems plaguing the system, the commission said.

Further, the commission recommended, those involved in the juvenile delinquency process should be required to take continuing legal education courses on the issues and juvenile delinquency judges should be required to explain on the record how a juvenile disposition "furthers the goals of the Juvenile Act." Each juvenile should also be considered indigent, the commission continued, to ensure he or she is eligible for a defense attorney through the creation of a special state-based funding stream.

"We understand that our recommendations offer little protection against determined greed, avarice and criminality," the commission wrote toward the end of its report. "But based on the testimony presented at our hearings, we also understand that many otherwise good and responsible people simply lost their way and chose accommodation over principle, and passivity over vigilance." The commission's chairman, Superior Court Judge John M. Cleland, stressed Thursday that implementing the solutions needed to improve the state's juvenile delinquency system is now out of the commission's hands.

It is, he said, up to the governor, the state Supreme Court and the General Assembly.

The mood of the commission's final meeting, held solely for the purpose of adopting its recommendations, and a subsequent press conference were surprisingly upbeat.

Even in instances where strong criticisms might have been expected, the tone was anything but adversarial.

Cleland and several members of the commission applauded each other for the level of dedication each gave the project and the amount of expertise and guidance some provided.

As a bit of an insight into the commission's behind-the-scenes work, Cleland noted that the commission held twice-a-week teleconferences for nine months.

Other members said their colleagues cleared time for those calls even while on vacation and that nearly each of those meetings ran over the allotted 30 minutes.

Asked at the press conference if he had a reading on whether the report would "sit on a bookshelf collecting dust," Cleland chuckled and said he had some "indications and signals" that interest in the issue has not waned.

"I know the legislative interest is there," he said. "I know the chief justice is very concerned." During the roughly 30 minutes he spent discussing the commission's proceedings and the factual record it was able to develop, Cleland stressed that the commission felt the situation in Luzerne County was not representative of a larger, statewide problem.

Generally speaking, he said, the state's juvenile delinquency system is good.

"But it's not as good as it ought to be," Cleland added. "If the rules and procedures that are in place had been followed, none of this would have happened." He later continued: "I think the thing that struck us was basically the collapse of the rule of law." Judges, if not criminal, were "incompetent," Cleland said, and defense lawyers -- at least those who were present in Ciavarella's court -- simply didn't perform their duties. There were prosecutors who abdicated their responsibility of seeking justice and others who turned a blind eye, Cleland added.

"The community, at least at some level, was aware of what was going on," he said. "This was not a secret." Some of that silence, the commission concluded, was attributable to the fact that Conahan and Ciavarella hired family members and friends to work in the Luzerne County courthouse.

That practice allowed the "environment for corruption" to become "more fertile." "Court employees were less likely to speak out against judicial misconduct if they had personal ties to the judges engaging in misconduct," the commission wrote.

As a result, the commission recommended that the state court administrator, Zygmont A. Pines, conduct a national study regarding best practices for court hiring policies.

Those comments seem to provide an insight into why the commission recommended the state Supreme Court continue its oversight of the Luzerne County Common Pleas court.

There have been "significant efforts" at reform, the commission wrote in its report, and those involved in the changes should receive credit.

"At the same time," the report states, "[t]he commission is concerned that the local culture of practice and procedure is so ingrained that there can be no reasonable assurance the commitment demonstrated to date can be sustained without the ongoing support and encouragement of the Supreme Court." Fixing the problems exposed by the scandal in Luzerne County might have been achieved by making the entire juvenile delinquency process transparent, Cleland said, but the commission felt there were better ways to ensure justice and accountability for the judges who are charged with doling it out.

"These are kids and kids do stupid things," he said. "When a child is now 21 and applying for a teaching job, he or she shouldn't have to explain what was going through their head when they were 12 and putting graffiti on a stop sign." Instead, the same watchdog approach that open-court advocates espoused could be achieved through a three-prong approach, Cleland said.

Improvements to the juvenile delinquency appeals process, along with near-mandatory counsel and a series of changes to the judicial discipline system, would have the same impact, the commission concluded.

It is the last part of that prong that will likely take the longest to see to a conclusion, however.

Writing that the Judicial Conduct Board lacks "sufficient oversight" and that its existing confidentiality provisions prevent any "meaningful" accountability, the commission recommended that a group conduct a constitutional review of the JCB and determine if changes should be made.

The group, the commission wrote, should focus on the composition of the board and its powers and duties. It should also explore the possibility of creating an appeals process at the Court of Judicial Discipline to review dismissed complaints and rethink the extent to which confidentiality blankets board actions and proceedings.

The commission, in its report, acknowledged that making those changes will be an arduous process.

In conjunction with those recommendations, then, the commission also charged the JCB with reviewing its internal operating procedures, which were ratified earlier this year, while enhancing its website and its annual report. The board should also better define the roles of the JCB staff and its board members, the commission wrote.

Cleland said those undertakings should be done in consultation with experts and outside voices.

"It's a good start," Cleland said of the JCB's written internal operating procedures. "But it's not sufficient in our view." The commission said in its report the media played an important role in exposing the corruption. While "other institutions may have failed in their roles," the report said, the media "impressively fulfilled theirs," particularly newspapers.

"This has been especially true of Wilkes-Barre's two competing newspapers, the Times Leader and the Citizens' Voice, which have rooted out and reported many important stories, and of a third newspaper, not traditionally known for investigative reporting, The Legal Intelligencer, of Philadelphia."