Why Were the Lawyers Wearing Blinders?

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Category: Criminal Law & Process, Legal Ethics, Public
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In the September 2009 issue of the ABA Journal, the author of the article “Town Without Pity,” Wendy Davis, asked, “Where Were the Lawyers?”  Judge Mark Ciavarella had been giving jail sentences to juveniles that were shocking to the conscience for minor offenses.  All the lawyers in the court system, including the district attorney, knew what was happening, but very few challenged Ciavarella. Barry Dyller, a local Wilkes-Barre attorney quoted in the article, stated that “only the absolute strongest lawyers, who didn’t mind facing his wrath” ever argued with the judge’s decisions. The other defense attorneys, the article notes, appeared resigned to these rulings. Additionally, if there were any lawyers who suspected the judge was taking bribes, there is no record of any stepping forward.

In August 2011, Ciavarella was sentenced to 28 years in federal prison on racketeering charges, among others, in a case that was called “Kids For Cash.”  Ciavarella, along with another Luzerne County judge, accepted bribes totaling over $2.6 million from the builder of juvenile detention centers in exchange for sending thousands of children to newly built facilities in order to ensure the facilities would be adequately utilized. 

Approximately 4,000 of the juvenile convictions handed out during the five-year scheme were overturned by the Pennsylvania Supreme Court on grounds that the children’s constitutional rights were violated, including their right to be represented by counsel.

The question remains: How was a judge able to consistently issue astoundingly harsh sentences and punishments to these children, some as young as ten and first-time offenders, for petty and minor offenses?  After knowing about this situation for years, why did so few lawyers push back against these decisions? Were they wearing blinders? In swearing to uphold the law, we have an ethical obligation to stand up for justice.  We have an obligation to monitor and police our profession.

The scandal came to light when the Philadelphia-based Juvenile Law Center (JLC) received a call from an alarmed parent in 2007. The parent revealed information which spurred the JLC to begin investigating these cases. The JLC filed a petition with the Pennsylvania Supreme Court in 2008 for relief after finding hundreds of cases in which juveniles appeared before Ciavarella without legal counsel, were convicted, and immediately sent to detention centers. While that initial petition was denied, it led to other investigations which found substantial information to criminally charge Ciavarella.

Luzerne County has taken steps to restore public confidence, including the election of six new judges just months after Ciavarella’s conviction.  The more surprising move, however, was the subsequent election for District Attorney, which was won by Stephanie Salavantis, a lawyer who graduated only two years before the race.  Salavantis defeated the incumbent D.A. who had more than twenty years of experience as a prosecutor.  This was perhaps the most obvious evidence of the citizens’ displeasure with their legal system, a clear statement that the limited in-practice experience of Salavantis was preferred over a veteran official who witnessed “Kids for Cash” convictions and did nothing to protect the children.

More recently, in an effort to repair and reform, two laws were enacted that work to provide and preserve the rights of children.  In April of 2012, Pennsylvania Governor Tom Corbett signed two bills into law. One law requires children under fourteen to be represented by counsel, and the other requires judges to provide reasons why a minor received his or her disposition and, if a minor is incarcerated in a detention facility, explanations as to why a specific facility was chosen.

The “Kids For Cash” scandal is an unfortunate example that evidences the necessity of vigilance in policing our own profession and protecting the public.

Why were the lawyers wearing blinders?  They were caught up in the institutional bias of the legal profession against blowing the whistle on other members and feared the retaliation that might follow.

Attorney Michael F. Hupy is a Certified Civil Trial Specialist and Marquette University graduate. He focuses on injury law at his firm, Hupy and Abraham, S.C., and supports many safety programs, including the Hupy and Abraham “Watch for Motorcycles” Awareness Program and other community organizations. In 2011, the firm donated over $150,000 to more than 100 local organizations.

 

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One Response to “Why Were the Lawyers Wearing Blinders?”

  1. I practice in Juvenile Law in Northern California and I have seen attorneys give way to judges engaged in inappropriate acts upon occasion. I am happy to report, however, that usually attorneys stand up to judges when necessary.

    I have upon occasion practiced in smaller rural counties where it was obvious the DA and judge were friends. I even once overheard a DA and a judge discussing cases (which is not permitted ex parte) and also making golf plans.

    Sad to hear that juveniles were being harshly treated by a judge with an apparent axe to grind.

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