A federal judge has ruled that Philadelphia Traffic Court Judge Michael Lowry’s Fifth Amendment privilege against potential self-incrimination was not violated when he participated in an interview conducted by consultants reviewing the court’s operations.
Lowry had claimed that he felt compelled to cooperate with Chadwick Associates investigators out of fear of losing his job. William G. Chadwick’s group was retained by the First Judicial District to perform a non-criminal investigation into the inner workings of the traffic court system, including the activities of judges.
U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania’s denial of motions to suppress evidence relating to the interview comes as the trial of ex-traffic court personnel is set to begin today.
Lowry and additional defendants Thomasine Tynes, Michael J. Sullivan, Robert Mulgrew, Willie Singletary, Mark A. Bruno, Henry P. Alfano and Robert Moy are facing charges related to a conspiracy to fix traffic tickets.
Lowry was suspended with pay by the state’s Court of Judicial Discipline on Oct. 25, 2013. Mulgrew pleaded guilty to unrelated fraud charges in federal court Sept. 19. Tynes had retired from the bench in 2012.
In his opinion, Kelly said Lowry’s position was not threatened by testimony given or in questions answered during the interview, which was separate from the ongoing federal criminal investigation.
“Lowry’s Fifth Amendment rights were not violated when he chose to answer the Chadwick investigators’ questions,” Kelly said. “Lowry had a choice to either testify or refuse to testify. His choice was not compelled with any threat of losing his job.”
According to Kelly, Chadwick Associates and federal authorities agreed that neither side would share information so as to maintain the integrity of each investigation.
Lowry’s interview took place March 8, 2012. At that time, Kelly said, Chadwick told Lowry that during the course of the investigation it was discovered that a culture of favoritism and special consideration existed in traffic court. Chadwick added that a report would be delivered to Judge Gary S. Glazer and ultimately the state Supreme Court.
Chadwick explained the interview was Lowry’s opportunity to respond to specific allegations made against him during the course of the review, Kelly said.
Lowry was also told that none of the information he gave would be shared with the government and that the government wasn’t sharing any information with Chadwick Associates. According to Kelly, Chadwick told Lowry that he did not know what the Supreme Court would do once the justices had received the report, but institutional reforms would likely occur as a result.
Kelly said at no time was Lowry told that he would be fired if he chose not to participate. He also added that Lowry never requested to consult an attorney before the interview.
Lowry “expressed a desire to be involved in the reform of the traffic court and suggested that he did not believe, as a result of the ongoing federal investigation, any further changes would be needed simply because the culture, by virtue of the investigation, had changed on that date,” Kelly said.
The Chadwick report was later published on the Internet, according to Kelly. Chadwick Associates consultant Jessica Davis testified, “When we used the term confidential with respect to our interviews we meant first of all that it was expected to be confidential from each other. In other words, we didn’t want the judges and the court officers talking to each other about what they told us.”
Kelly noted that as per the agreement, the U.S. Attorney’s Office received no information from Chadwick Associates.
In claiming that his rights were violated, according to Kelly, Lowry cited the U.S. Supreme Court case Garrity v. New Jersey in which defendants in an internal police department investigation were told to either testify or forfeit their jobs.
Lowry contended that he was protected under the high court’s holding that the defendants in Garrity were entitled to the 14th Amendment’s protection against coerced public statements; however, Kelly said Garrity didn’t apply to Lowry’s case.
“Lowry does not point to any evidence of the existence of any statute or departmental rule requiring the termination of his employment for choosing to refuse to answer questions posed to him by the Chadwick investigators,” Kelly said. “Likewise, Lowry does not state that he was ever verbally instructed that refusal to testify would result in his termination.”
Kelly added that Lowry was not in jeopardy of losing his job and that other traffic court judges—Tynes and Sullivan—did not testify and were not fired as a result of not participating.
Tynes, Sullivan and Mulgrew joined in Lowry’s motion for a Kastigar hearing. According to Kelly, Tynes later withdrew, Sullivan had no standing in the motion and Mulgrew made no showing that his Fifth Amendment rights were violated.
Stevens & Lee attorney William A. DeStefano represents Lowry and said he didn’t understand Kelly’s rationale.
“We feel that it was both subjectively and objectively reasonable to believe that a traffic court judge would lose his job as a result of failure to cooperate with the Chadwick investigation,” DeStefano said.
He added with regard to the trial, “We feel very positively that Judge Lowry did not participate in any ticket-fixing scheme that may or may not have been going on. At the end of the day, the jury will find him not guilty of these charges.”
Patricia Hartman, spokeswoman for the U.S. Attorney’s Office for the Eastern District of Pennsylvania, said prosecutors could not comment on the matter.
(Copies of the nine-page opinion in United States v. Sullivan, PICS No. 14-0768, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •