Last updated: February 19. 2013 9:53PM - 467 Views

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Alleging a federal judge has abused his discretion, attorneys for the juvenile centers named in the kids for cash lawsuits have asked a federal appellate court to intervene in the case and overturn a ruling they allege has gutted their defense.

Bernard Schneider, attorney for PA Child Care and its related entities, claims U.S. District Judge A. Richard Caputo has abdicated his judicial responsibility by refusing to allow the defense to present evidence relating to criminal acts committed by the juvenile plaintiffs.

Schneider has asked Caputo several times to reverse his ruling, but the judge has declined. That prompted Schneider to file an appeal this week with Third Circuit Court of Appeals.

He is also seeking to stay the case pending resolution of that appeal.

If granted, the motion for stay would halt all aspects of the case, including finalization of a $17.75 million settlement reached with real estate developer Robert Mericle, one of the original defendants.

It's not known yet whether the Third Circuit Court will grant Schneider's petition.

The appeal, known as a writ of mandamus, is an extraordinary legal remedy reserved for exceptional circumstances in which a plaintiff alleges they will suffer irreparable harm, and that they have no other legal remedy.

Schneider argues this case fits that exception because Caputo's pre-trial rulings have grossly prejudiced his clients' ability to defend themselves.

PA and Western PA Child Care centers are among several defendants remaining in a class-action lawsuit filed by juveniles who allege they were wrongly incarcerated as part of a scheme by former Luzerne County Judge Mark Ciavarella to enrich himself and others, including the centers' former co-owner, attorney Robert Powell.

The lawsuit alleges, among other things, that Ciavarella was paid kickbacks to encourage him to detain more juveniles at the centers, thus increasing their profits.

Schneider wants to introduce evidence of the juveniles' criminal records, arguing the records would show the offenders would have been incarcerated, regardless of the kickback scheme.

Caputo has refused to allow the evidence, based on the fact all convictions were previously vacated by the state Supreme Court. Allowing the evidence would essentially lead to a retrial of the juveniles' guilt or innocence, Caputo has said.

In his motion, Schneider questions why the defense is being denied the records, given that plaintiffs were provided the information to build their case.

These violations of the provider defendants' constitutional rights gross prejudice (their) ability to adequately defend themselves, Schneider said.

He also argues the defense is not seeking to retry the cases, but to present evidence a jury could use to reasonably find the centers did not violate juveniles' rights.

Provider defendants are not asking for a re-trial of those delinquency proceedings. Rather, (they) seek to defend themselves from false and malicious accusations ..., Schneider says.

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