May 2011

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Speaking up about judicial misconduct

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Opinion

By Janice M. Brickley

From the President

Highly publicized corruption scandals involving government officials

Janice M. Brickley

provide fertile ground for Monday morning pundits. They can also be a

Letters to the Editor

catalyst for education and positive change. Such is the case with the kids

MCLE Self-Study

for cash judicial corruption scandal in Luzerne County, Pennsylvania. In

Attorney Discipline

an article published in the March Bar Journal, I discussed the

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Pennsylvania Judicial Conduct Boards failure to follow through with a

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Public Comment

complaint concerning the judges involved in the scandal and what the California
Commission on Judicial Performance has done to ensure that its rules and procedures
are not susceptible to the failures that occurred in Pennsylvania. This article examines

Ethics Byte

the role of an attorney in exposing judicial corruption and abuse in the context of the

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kids for cash scandal.

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Two former judges, Mark A. Ciavarella Jr. and Michael T. Conahan, were charged with
federal crimes based on their participation in a scheme to close down a county juvenile
detention facility and contract for the placement of juveniles with for-profit facilities in
exchange for a secret finders fee of $997,600. Juveniles were sent to the private
detention facilities by Ciavarella at the same time both judges were accepting payoffs
from the owner of the facilities. Conahan pleaded guilty to one count of racketeering
and in February, Ciavarella was convicted by jury of 12 felony counts, including
racketeering, conspiracy and money laundering conspiracy. Both men are awaiting
sentence.
The Report of the Pennsylvania Interbranch Commission on Juvenile Justice, issued last
May, examines the circumstances that led to the kids for cash scandal, including the
role of attorneys who appeared regularly before Judge Ciavarella in juvenile court.
While these attorneys were not privy to Ciavarellas financial arrangement with the
owners of the detention facilities, they did know that Ciavarella had a zero-tolerance
policy that resulted in juveniles being sent to detention facilities in unprecedented
numbers. Under Ciavarellas zero-tolerance policy, juveniles were automatically sent to
out-of-home placement for certain offenses, such as fighting in school, without an
individual evaluation of the circumstances of the offense or the offender contrary to a
judges obligation to decide sentences on a case-by-case basis.
Attorneys who regularly appeared in Ciavarellas courtroom also knew that he routinely
adjudicated and sentenced juveniles who were unrepresented by counsel without
obtaining the required waiver of the right to counsel. In 2003, the statewide percentage
of juveniles who waived the right to counsel was 7.9 percent; in Ciaverellas courtroom
the attorney waiver rate was 50.2 percent. Similar gaps appear in the statistics
throughout Ciavarellas five-year reign in juvenile court.
A criminal prosecutor is not only an advocate but, as a representative of the sovereign,
has a duty to seek justice, which includes the responsibility of seeing that the defendant
is accorded procedural justice. (Berger v. United States (1935) 295 U.S. 78, 88 [79

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L.Ed. 1314, 1321, 55 S. Ct. 629]; County of Santa Clara v. Superior Court (2010) 50
Cal.4th 35, 48.) Nowhere is this responsibility more important than in juvenile court.
Under the Pennsylvania Rules of Professional Responsibility, prosecutors have an
ethical obligation to ensure that the accused has been advised of the right to counsel
and has been given the opportunity to obtain counsel. (See also American Bar
Association Model Code of Professional Conduct 3.8 (b) [a prosecutor shall make
reasonable efforts to assure the accused has been advised of the right to, and the
procedure for, obtaining counsel and has been given reasonable opportunity to obtain
counsel . . .].) Before accepting a waiver of the right to counsel from juvenile
defendants, Pennsylvanias Rules of Juvenile Court Procedure require a judge to
conduct on-the-record discussions or colloquies to ensure that the juveniles
understand the right they are giving up. (See also Faretta v. California (1975) 422 U.S.
806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d
209, 124 S.Ct. 1379].) Yet, prosecutors regularly witnessed Ciavarella deciding cases of
unrepresented juveniles without first engaging in the required colloquies but said
nothing. The Report of the Interbranch Commission concluded that the prosecutors
clearly abdicated their roles as ministers of justice and simply became passive observers
to the tragic injustices that were perpetrated against juvenile offenders.
Jonathan Ursiaks first assignment when he joined the public defenders office in 2007
was to represent juveniles in Ciavarellas court. On a regular basis, he observed
juveniles admitting to crimes and being sentenced without an attorney and without the
required advisements of rights by the judge and waivers from the juveniles. This was
not the only practice in Ciavarellas courtroom that troubled Ursiak proceedings were
abbreviated, psychological evaluation reports were not provided to him before the
hearing, juveniles were being sent to placement at an alarmingly high rate, the judges
zero-tolerance policy impeded the juveniles right to be heard, and, in general, the
public defender was not given an adequate opportunity to advocate for his clients.
When Ursiak reported his concerns to his supervisor, he was told the public defenders
office did not need more clients. Undeterred, Ursiak provided assistance to the Juvenile
Law Center of Philadelphia, which was investigating the suspected abuses in Luzerne
Countys juvenile court.
Ursiaks courage and persistence in reporting Ciavarellas improper practices should be
applauded. However, the silence of other attorneys who knew of the abuses in
Ciavarellas courtroom is disturbing. Had others reported the misconduct when it first
occurred, the abuses and corruption might have been abated years earlier saving
countless youthful offenders from a harsh and draconian fate suffered at Ciavarellas
hand.
According to the Interbranch Commissions report, no attorney practicing in Ciavarellas
courtroom ever filed a complaint with the Pennsylvania Judicial Conduct Board, the
agency responsible for investigating complaints of judicial misconduct. Young
prosecutors recognized the inherent unfairness of Ciavarellas practices, but did not
know what to do or to whom to turn for guidance. Many defense attorneys who
appeared before Ciavarella were equally derelict. Public defenders and private attorneys
routinely witnessed Ciavarella violate the rights of juveniles, including their own clients,
yet most took no action. The Interbranch Commission found that these attorneys
clearly abdicated their responsibility to zealously defend their clients and to protect
their due process rights. At a bare minimum, the commission concluded, they
should have contacted their supervisors in the Public Defenders Office and the local bar
associations or notified the appropriate judicial or attorney disciplinary organizations.
Many factors can deter an attorney from reporting judicial misconduct indifference,
fear of retaliation, inexperience, ignorance. During its investigation, the Interbranch
Commission found that some attorneys did not know how or where to report judicial

misconduct. The commission encouraged Pennsylvanias Judicial Conduct Board to

partner with the Pennsylvania Bar Association to create and implement programs to
educate attorneys and the public on the existence of the judicial disciplinary board and
on how to report judicial misconduct. The commission also recommended that the
Judicial Conduct Board revise and update its Website to provide clear, simple
directions for filing complaints. In California, the Commission on Judicial Performance
works with the State Bar to provide information concerning the process for reporting
judicial misconduct. The commissions website offers user-friendly instructions on how
to file a complaint of judicial misconduct, as well as information on what constitutes
judicial misconduct.
As tragically illustrated in the kids for cash scandal, those in the legal community
share a mutual responsibility to take action when faced with abuses of judicial
authority. Indifference and inaction hurts not only the individual targets of the
misconduct but the reputation and integrity of the bar and the judiciary.
Janice M. Brickley is Legal Advisor to Commissioners at the California Commission
on Judicial Performance.

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July 2013

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Top Headlines
Opinion
From the President

Whistleblower confidentiality
protects the public
from judicial misconduct
By Janice M. Brickley

Janice M. Brickley
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As part of the fallout from the kids

for cash scandal in Pennsylvania, in
2009 the convictions of over 4,000 juvenile
offenders were expunged.
They were determined to have been entered as part of a
scheme involving
the Pennsylvania juvenile court judge who routinely sentenced juveniles

to a private juvenile detention facility for minor offenses in exchange for

a
secret finders fee from the owner of the facility. In an
article published in the May
2011 Bar Journal, I discussed the role of
attorneys in failing to expose the actions of this
judge. While attorneys who
appeared regularly in the judges court were not privy to the
financial scheme,
between 2003 and 2008 they routinely witnessed the judge
unlawfully sentencing
minors to the detention facility without counsel, without waivers
of the right
to counsel and without an individual assessment of the juveniles offense or

circumstances. During the subsequent investigation, attorneys and others who

appeared frequently in the judges court explained that they closed their eyes
and ears
to these apparent abuses out of fear of retaliation from the judge. The
resulting silence
occurred notwithstanding the requirement in Pennsylvania
Professional Conduct Rule
8.3 that a lawyer who knows that a judge has
committed a violation of applicable rules
of judicial conduct that raises a substantial
question as to the judges fitness for office
shall inform the appropriate
authority.
The reluctance to report judicial misconduct
is evidenced most by those who are most
vulnerable to retribution or
retaliation attorneys, court employees, and other judges.
These are the
individuals in the best position to recognize judicial misconduct and the
most
likely to be a witness to it. In California in 2012, only five percent of the

complaints received by the Commission on Judicial Performance came from

attorneys,
court employees and judges; yet, complaints from those sources
resulted in 37 percent
of the discipline imposed.
In order to fulfill the
commissions mandate to protect the public, to ensure that
information about
unethical judicial conduct reaches the commission, the disciplinary
process
must safeguard the filing of complaints and the cooperation of witnesses during

investigations. The primary way that this is accomplished is by affording

confidentiality
to those who come forward and provide information about
judicial misconduct. Under
the commissions rules, disclosure of witness
statements is only made to the judge if
formal charges are filed, which occurs
in approximately one to four cases a year.
This year, during the commissions
biennial review of its rules, the California Judges
Association (CJA) asked the
commission to adopt a rule that would have required the
commission to provide
full discovery to the judge before the commission has completed
its investigation,
including disclosing the identity of the complainant and all witnesses,
and
turning over witness statements. After careful consideration, the commission

decided not to adopt CJAs proposed rule because eliminating confidentiality of

complainants and witnesses when no formal charges are brought would severely

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compromise the commissions investigation of complaints of judicial misconduct
and
jeopardize protection of the public. Instead, the commission adopted rules,
consistent
with its long-standing practice and the practice of the State Bar
and other professional
oversight agencies, which guarantee that judges receive
sufficient information to
respond effectively to the allegations of misconduct
during the investigation, without
divulging the identity of the whistleblower
complainant or witnesses. These rules
balance the commissions responsibility
to ensure that the disciplinary process complies
with due process and is fair
to the judges who are under investigation with the
commissions mandate to
protect the public through an effective investigation
process.
Only one state, Alabama, provides
full discovery before formal charges are filed in
judicial disciplinary
proceedings. Complaints dropped almost by half when Alabama
amended its rules
in 2001 to require disclosure of the complaint and all supporting
materials. An
American Bar Association report concluded that Alabamas procedures
conflict
with national practice and are not protective of the public. They unduly burden

the system, deter the filing of valid complaints, and compromise the ability of
the
commission to effectively conduct a proper investigation. (American Bar
Association
Standing Committee on Professional Discipline, Alabama: Report on
the Judicial
Discipline System (March 2009) (ABA Report), p. 14.)
Regardless of whether a judge would
actually retaliate against a complainant, the mere
possibility of retaliation
is sufficient to deter the reporting of judicial misconduct. If
confidentiality
were not guaranteed during the commissions investigation, lawyers who
appear
regularly before a judge would naturally be concerned that reporting judicial

misconduct and cooperating with the commissions investigation will have negative

ramifications not only for themselves, but also for present and future
clients. Court
employees and others whose livelihood depends on their
association with the court
(interpreters, probation officers, etc.) would be
equally, if not more, reluctant to file a
complaint or cooperate with the
commissions investigation knowing their identity
would be disclosed to the
judge. The ABA report on Alabamas judicial disciplinary
system concluded with
respect to Alabamas disclosure rules, This practice,
particularly the
revelation of the complainants identity, has a chilling effect on those
who
may want to file a complaint against a judge. Specific instances were described
to
the team by a range of interviewees, including but not limited to potential

complainants, actual complainants, lawyers and judges. (ABA Report, p. 19.)

The Pennsylvania kids for cash scandal illustrates the potentially devastating
consequences
when attorneys and those associated with the court are reluctant to
report
misconduct. Whistleblowers filing complaints regarding improper governmental

activity are guaranteed protection, including confidentiality, under

Californias
Whistleblower Protection Act. (Gov. Code, 8547.5, 8547.6,
8547.7, subd. (c).) Those
in the best position to provide accurate and
verifiable information about serious judicial
misconduct deserve no less.
Janice M. Brickley is Legal
Advisor to Commissioners at the California
Commission
on Judicial Performance.

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