Layers of judicial reflection stacked like Descartes’ wax on the bench of the U.S. Court of Appeals for the Third Circuit on Wednesday.
The court was faced with an odd situation, Judge Marjorie O. Rendell noted, saying it’s “judges judging judges who are judging judges.”
Former Luzerne County Court of Common Pleas Judge Mark A. Ciavarella Jr. is arguing that his convictions related to the bribes he took to place youthful offenders in a privately owned juvenile detention center in the “kids-for-cash” scandal should be set aside because U.S. District Judge Edwin Kosik of the Middle District of Pennsylvania, who presided over his trial, had shown bias against him.
Ciavarella focused primarily on Kosik’s responses to letters from citizens expressing outrage at the charges, a newspaper article that attributed derisive quotes about Ciavarella’s alleged conduct to Kosik, and his rejection of Ciavarella’s initial plea deal. Kosik denied talking to the reporter, according to court papers.
“There’s no doubt that he should not have done what he did,” Rendell said Wednesday regarding the responses Kosik sent to the letters. The question is whether his conduct rises to the level of objective bias, she said.
Third Circuit Judge Julio Fuentes, who was part of the three-judge panel Wednesday, asked Ciavarella’s lawyer, Albert Flora, which of the letters that Kosik sent best proved his bias.
That would be Kosik’s response to citizen Robert Wojack, Flora said.
Rendell then read an excerpt from the letter, which said: “‘Thank you for your letter and expressed concerns over the corruption which has come to light in Luzerne County, and most seriously with the courts. My personal opinions are in complete sympathy with those you express. The only difference is that my personal beliefs cannot guide my responsibility and judgments.’”
Ciavarella’s brief only quoted the first two sentences, leaving out Kosik’s explanation that, as a judge, he couldn’t be swayed by his personal view. Read in context, though, Fuentes said, “What’s so bad about that?”
From there, Rendell struck at an abiding issue for judges, which is separating personal views from their decisions on the bench. She’s asked all the time about it, she said, concluding, “Everybody has views.”
“I’m trying to put myself in that position,” she said, referring to Kosik responding to the letters. He received more than 100 of them around the time that he rejected Ciavarella’s plea deal in 2009 and he responded to a handful of them. He didn’t disclose them until about two-and-a-half years later, just before sentencing Ciavarella after his trial.
“What’s the remedy?” Rendell asked Flora, assuming that Kosik’s actions do rise to the level of objective bias. The remedy is a new trial, Flora said. He maintains that Kosik was obligated to recuse himself from the case.
“Not only impartiality, but the appearance of impartiality are the ‘sine qua non’ of the American legal system,” according to Ciavarella’s brief. “Judge Kosik was obligated to disqualify himself in these proceedings because he engaged in a pattern of conduct from which a reasonable person might question his impartiality.”
Ciavarella was convicted in 2011 of 12 out of 48 initial counts after a two-week trial and was sentenced to 28 years in prison. His co-conspirator, former Luzerne County Court of Common Pleas Judge Michael T. Conahan, had agreed to a plea deal the year before that resulted in him serving 17.5 years in prison. In 2009, the pair had each agreed to a plea deal for a roughly seven-year sentence, but Kosik rejected it. That’s when Kosik received the letters, some of which he responded to.
When the government’s lawyer, Gordon Zubrod, was at bar, Rendell focused on Kosik’s sentencing, saying the jury found as it did, but asked, “Why not resentence?”
Zubrod had pointed out that in each letter Kosik wrote, he sympathized with the people who wrote to him, but explained that he must remain impartial. The court should be taken at its word that a judge will be objective, Zubrod said.
In deciding on a sentence, it’s hard to distinguish personal views and letters from citizens urging the judge to issue a harsh punishment from the decision, Rendell said
“When it comes to sentencing,” Rendell said, and the judge can decide “between a 168 and life,” he could certainly be influenced by calls for a stiff sentence.
“The difficulty here is these letters were saying, ‘throw the book at him,’” Rendell said, adding later, Kosik said essentially, “Personally, I couldn’t agree more.”
In the government’s brief, it cited the Third Circuit’s 2002 opinion in United States v. Covert in a footnote, saying, “Although a sentencing court, in a case of public interest, has discretion to ignore public sentiment expressed in letters from members of the public, the law does not require the court to do so.”
Judge Michael A. Chagares was the third appeals judge on the panel.