The Pennsylvania Supreme Court’s decision to deny former Luzerne County Judge Ann H. Lokuta a new disciplinary trial is a serious injustice that undermines people’s faith in the integrity of the state’s judicial system.
I am not alone in that assessment. “Unbelievable,” “Shocking,” “Disappointing,” were some of the phrases I heard from lawyers and judges around the state in reaction to the court’s decision.
From a macro view, the decision is inconsistent with the court’s own recent rulings on two points.
First, the court has given a new trial or a clean slate to everyone who has come before it with allegations that the outcome in their case was tainted by the corruption in the Luzerne County courthouse that has brought down three judges and numerous other individuals. Except Lokuta.
I would argue there is more of a stench surrounding Lokuta’s case than some of the other cases the high court has deemed worthy of a new trial.
Second, the court ruled that attorney Richard Sprague, who sat as a judge on the Court of Judicial Discipline and decided Lokuta’s case, didn’t have to recuse himself, even though he was representing one of the key figures in the corruption probe, attorney Robert Powell, who has admitted to paying former Luzerne judges Michael T. Conahan and Mark A. Ciavarella. And yet, the court recently ordered the entire Montgomery County bench to recuse itself because one of its newest members is one of several defendants in a long-term piece of business litigation.
How does the Montgomery County matter merit recusal of an entire bench when Sprague does not? It should be noted that Sprague’s firm is the one that asked the high court to recuse the Montgomery County bench.
This decision, and the way it was written, makes everyone a loser in this matter: Lokuta, the court, the judicial conduct system.
I should note that while I disagree with his outcome, the court, and the public’s confidence, would have been much better served had Justice Max Baer’s concurring opinion been the lead opinion. Why? Because Baer’s reasoning is transparent, and he acknowledges the obvious problems with Lokuta’s case. You get the sense reading Baer’s opinion that he took the case seriously and wrestled with it mightily before coming to his decision.
I can’t say the same for Justice J. Michael Eakin’s majority opinion. After reading the decision, I was worried that Eakin’s head is buried so deep in the earth that the only people he’s communicating with are miners and moles.
One source I spoke with, who knows and likes Eakin, described the tone as “flippant.” I would say it’s more clueless.
Eakin doesn’t really acknowledge all the troubling facts surrounding Lokuta’s case, the appearance problems, or just how rampant and pervasive the corruption was in Luzerne County. It’s almost as if he hadn’t read the Interbranch Commission on Juvenile Justice’s final report. There are enough details and damning facts against the Judicial Conduct Board in that report alone that merit giving Lokuta a new trial. To anyone who has even passing knowledge of these issues, the absence of that acknowledgement is striking.
Reading it reminded me of the scene in Jaws , where the local coroner says the first swimmer’s death is the result of a boating accident. Richard Dreyfuss, who plays the marine biologist, comes in and looks at the woman’s remains and starts enumerating all the obvious damage to the flesh. He gets angrier and angrier and then he looks at the coroner in disgust and yells, “This was no boating accident!”
To be so dismissive of her claims, in light of everything we now know, is to ignore all the troubling facts, and a failure of the imagination to comprehend the scope of Conahan and Ciavarella’s influence and corruption.
Let me repeat something that I have said several times: I don’t know if Lokuta is a good judge and I know plenty of people who I respect who believe she doesn’t deserve to be on the bench.
Having said that, what I have learned over the last two years investigating the corruption in Luzerne and talking to people up there and those familiar with the parties and the investigation, is that there are more than enough troubling facts and appearance problems to warrant giving Lokuta a new trial.
Sources have told us that Lokuta and former Luzerne County controller Steven Flood had concerns about the judges and were sharing information around 2003 or 2004. Those same sources told us Conahan and Ciavarella became concerned that someone in the courthouse was assisting Flood. If that’s true, they had a big motive to target Lokuta.
But you don’t have to take it from me. Take it from some of Lokuta’s critics, who have told me they have come to believe that Lokuta was fundamentally wronged and that Conahan and Ciavarella manipulated the Judicial Conduct Board in order to silence her and to tie up the JCB’s resources so they themselves couldn’t be investigated.
Our sources have tied Conahan to mobsters. They’ve alleged rampant case-fixing in the courthouse. They’ve told us that Conahan and Ciavarella didn’t just run the courthouse, but the whole county, through fear and intimidation. Our sources have told us how the judges retaliated against anyone who stood up to them or tried to call them out. Even after the judges were indicted, sources were at times reluctant or afraid to talk to us, fearing the judges and their cronies still held sway over the courthouse. More than a year after the judges were indicted, sources told us they didn’t trust the people around them.
Given all that, and the fact that Conahan and Ciavarella got a prominent lawyer and a prominent builder to give them millions of dollars, does anyone really think it’s a stretch that they could get court employees to testify against an unpopular judge?
Of course not. It’s only a stretch if you can’t believe judges would allegedly take money in exchange for sending kids to a private juvenile detention center, often without no regard to their due process rights.
There are plenty of other disturbing facts surrounding Lokuta’s case.
Three senior witnesses who testified against her, including former court administrator William T. Sharkey, have been indicted. A fourth, former prothonotary Jill Moran, resigned from office and is cooperating with the feds.
While the JCB was spending $46,000 to investigate and prosecute Lokuta, an anonymous complaint regarding Conahan arrived at the JCB near the end of September 2006. It alleged widespread corruption, including case-fixing, mob ties and the improper placement of juveniles in a privately owned juvenile detention facility. It portrayed a culture of rampant case-fixing in both civil and criminal cases, providing specific names of attorneys and cases, as well as case numbers. It explained how Conahan and Ciavarella used nepotism to protect and insulate themselves in the courthouse.
The complaint laid out the general framework of the “kids-for-cash” scheme. The complaint explained the close relationship and connections between Conahan, Ciavarella and Powell, the co-owner of the private juvenile detention facility at the center of the scandal and one of the men the federal government alleges paid the judges in exchange for sending juveniles there.
“Attorney Robert Powell is co-owner of [PA Child Care]. When Judge Conahan became president judge, he assigned Judge Ciavarella to Juvenile Court, while in the past, Juvenile responsibilities were shared among Judge [Chester B.] Muroski and at times, Judge [Ann H.] Lokuta,” the complaint alleges. “A stringent pattern of placement in the Powell owned facility can be readily revealed by reviewing Judge Ciavarella’s placements. In the past, the other judges placed in a variety of facilities … .”
The chair of the JCB at the time of the complaint was Patrick Judge Sr., who other newspapers have reported shared investments with Conahan in Florida real estate and a Forty Fort, Pa., ambulance company. Judge has not been accused of any wrongdoing.
Nothing was done with the complaint. The JCB never referred it to the feds. We know that Joseph Massa, the chief counsel of the JCB, wrote a memo recommending an investigation. We know the Conahan matter was tabled. We now know that there was never any follow-up.
The other thing we know from comparing the written answers with prior testimony before the ICJJ and from a JCB filing in the Lokuta case is that the JCB’s story changed several times. We know that some of the written answers directly contradicted earlier statements or filings.
The JCB claimed it deferred investigating the Conahan complaint because it referred the matter to the feds, but neither of those statements was true. Massa didn’t turn it over to the feds until nearly 18 months later, after the feds asked for it.
The JCB’s assistant chief counsel, Francis Puskas, testified that he included a five-page section of a filing in the Lokuta case in September 2009 without ever asking Massa why he was supposed to put it in or whether any of it was true. The JCB never bothered to try to correct that filing. The JCB let the judges testify against Lokuta, despite believing the detailed complaint filed against Conahan merited an investigation.
It is because of all that, and more, that Lokuta deserves a new trial.
The court didn’t do the JCB or the judicial conduct system any favors here. Some have suggested to me that the court denied Lokuta a new trial because they want the whole mess to go away, that they don’t want the JCB to take any more heat. Good luck with that. The doubts and suspicions many have about the case will persist. Had they ordered a new trial, and the JCB proved its case again, then it would have validated the JCB and restored faith in the integrity of the system.
For those same reasons, the court’s decision will erode confidence and faith in the integrity of the entire justice system. The court needs to understand that. It needs to understand that there are plenty of lawyers and judges out there who think the justices have OK’d Conahan’s manipulation of the judicial conduct system to silence a critic and potential whistleblower.
It has been suggested to me that we may learn more about Lokuta and her role in the corruption probe when Ciavarella’s case goes to trial. Maybe what we learn will make the JCB look better. Or maybe it will make them look even worse.
The court’s decision may be final, but in the eyes of the people I spoke with, it has no moral authority. •
Hank Grezlak is the editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486, or by email at firstname.lastname@example.org