Last updated: February 16. 2013 7:25AM - 46 Views

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By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter
WILKES-BARRE – Luzerne County District Attorney Jacqueline Musto Carroll acknowledged Friday that her life would be much easier if a judge sides with a juvenile advocacy group and bars her from retrying an estimated 6,500 juveniles who appeared before former juvenile judge from 2003 to 2008.

She wouldn’t have to review the cases or try to track down victims, witnesses or evidence, she said. The cases would just simply go away, allowing her to focus her time on other pressing criminal matters.
The problem, Musto Carroll said, is such a decision would not serve justice, either for the juveniles or the victims of their crimes.
“To discharge these juveniles and let them avoid prosecution entirely because you had a crooked judge is not the remedy,” Musto Carroll told Senior Judge Arthur Grim of Berks County. “It is the easy road, but not the right thing to do. Sometimes the hard road is the way to go.”
But Attorney Marsha Levick of Juvenile Law Center, the group that filed the petition, contends Grim must vacate all convictions and bar retrial given the egregious violations of juveniles’ rights that were committed under Ciavarella’s tenure.
The two sides squared off Friday during a nearly two-hour hearing before Grim that was held, ironically, in the same courtroom from which Ciavarella heard juvenile cases for years.
Grim was appointed by the state Supreme Court to review thousands of cases handled by Ciavarella after the disgraced judge pleaded guilty in February to accepting kickbacks from the developer and former co-owner of the PA Child Care juvenile detention facility.
The Supreme Court has already followed Grim’s recommendation and ordered convictions of hundreds of juveniles involved in low level crimes be erased. Grim is now considering what to do with cases involving more serious charges.
Musto Carroll has conceded juveniles who appeared before Ciavarella from 2003 to 2008 – the time frame he was accepting the kickbacks – were denied a right to a fair trial.
But JLC wants Grim to go one step further and bar re-trials based on their allegations of judicial and prosecutorial misconduct.
The group contends Ciavarella manipulated the legal process to ensure juveniles appeared before him without an attorney. That made it easier for him to incarcerate them at PA Child Care, which they allege benefited him financially.
At Friday’s hearing, Levick argued prosecutors were at least partly complicit because they had a duty to intervene to stop the practice, but failed to do so – to their advantage.
“What did the DA do in those cases? The DA got a conviction,” Levick said.
Levick noted the juvenile act requires judges to question a youth on the record to ensure they understand the ramifications of proceeding without any attorney. It’s undisputed that Ciavarella did not do that.
“It can’t be argued they didn’t know what was going on,” Levick said of prosecutors. “To allow the remedy in this case to be a do over . . . misses the point of what were are here about – to correct these kinds of constitutional violations.”
Musto Carroll vehemently disputes prosecutors acted improperly. She said evidence shows many of the juveniles involved signed waivers of counsel, and prosecutors had no way to know they had not done so knowingly.
While she agrees juveniles rights were violated, she said Grim must also consider the rights of the victims of their crimes when making his decision.
“When this broke, everyone said ‘The poor kids, the poor kids.’ No one said ‘What about the crimes they committed?’” Musto Carroll said. “To say, ‘You had a crooked judge, so you get a get out of jail free card,’ I don’t think that’s fair.”
She reiterated her point that the JLC has not alleged that any of the juveniles involved were wrongly accused or convicted of the crimes.
“It’s not as if someone was driving around in a paddy wagon, picking kids off the street and bringing them before Ciavarella so he could make money,” Musto Carroll said. “We can’t lose sight of what happened to the victims. Who is going to erase what happened to them?”
Levick agreed the rights of victims are important, but she said it’s also important to ensure the integrity of the judicial system. That means judges sometimes are obligated to make rulings that are unpleasant for victims.
“That’s sometimes what happens in a system dedicated to justice for all,” she said. “When constitutional rights are violated, there are consequences.”
Grim took the matter under advisement and is expected to issue a ruling within several weeks. The recommendation will be sent to the Supreme Court, which will ultimately decide how the cases will be handled.
The judge acknowledged he is facing a difficult decision.
“The harm that occurred is incalculable. It’s hard to say where the victimization stops,” Grim commented as the hearing concluded.
Musto Carroll said she has not yet determined how she would handle the monumental task of retrying the cases should Grim rule in her favor.
She noted it’s not likely that all 6,500 cases would have to be retried as some victims might not want to proceed with a retrial. Others might not be able to be re-prosecuted because evidence or witnesses are no longer available.
“What we want to do is have the opportunity to retry all those cases,” she said.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.
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