Last updated: February 19. 2013 5:27PM - 1472 Views

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PHILADELPHIA – One of three appellate court judges who heard former Luzerne County Judge Mark Ciavarella's appeal of his corruption conviction said there is no doubt a federal judge should not have commented on aspects of Ciavarella's case, but that does not necessarily mean Ciavarella should be granted a new trial.

Third Circuit Court of Appeals Judge Marjorie O. Rendell made the comment during a nearly hour-long hearing Wednesday that will determine if Ciavarella's conviction should be overturned or, in the alternative, if he will be given a new sentencing hearing.

Ciavarella's attorneys, Al Flora Jr. and William Ruzzo, argued U.S. District Judge Edwin Kosik's actions prior to and during Ciavarella's trial show he had a bias against their client that warranted his recusal from the case.

Ciavarella was convicted in February 2011 of 12 counts related to his acceptance of $1 million from Robert Mericle, who built two juvenile detention centers utilized by Luzerne County. Ciavarella's one-time co-defendant, former Judge Michael Conahan, pleaded guilty to racketeering conspiracy and was sentenced in September 2011 to 17 ½ years in prison.

The Third Circuit Court's ruling, which will be issued at a later date, will decide Ciavarella's case and could affect Conahan's case as well. Conahan has a motion pending in federal court to vacate his sentence should the Third Circuit determine Kosik should not have presided over Ciavarella's trial.

In his argument before the court, Flora cited comments Kosik reportedly made to a newspaper reporter in 2009 that he believed Ciavarella and Conahan engaged in a quid pro quo scheme by taking money from Mericle.

Flora also pointed to responses Kosik penned to citizens who wrote to him before Ciavarella's trial, urging him to impose a stiff sentence.

In one of the letters, Kosik said he was in complete sympathy with the views expressed by the writer. He later continued But my personal beliefs cannot guide my responsibilities and judgments.

The Third Circuit court must decide: Was that qualifier enough to counter the opinions he expressed? Or would a reasonable person find that an appearance of bias?

There's no doubt that he should not have done what he did, Rendell said during the hearing. (But) we have to look at the overall context and see if injustice occurred here.

The U.S. Attorney's Office has acknowledged in court documents that Kosik expressed personal opinions, but maintains his conduct did not rise to the level the U.S. Supreme Court set for recusal, which requires showing that a judge displayed deep-seated and unequivocal antagonism toward a defendant.

Assistant U.S. Attorney Gordon Zubrod, who argued the case before the court, also said trial rulings that the defense claims showed Kosik's bias were within his discretion as a judge, or, at most, were harmless errors. He noted Kosik sentenced Ciavarella below federal guidelines, which he said negates any claim of bias.

Speaking after the hearing, Flora said the court must decide whether Kosik's comments were enough to warrant recusal, or if additional evidence was needed to show they influenced his rulings.

What the court was looking at was, granted, the judge got public outrage letters, and granted, he responded to them with his personal views. But how did that permeate the proceedings? Is there further indication he issued rulings that support (the claim) he may have been biased or prejudiced? Flora said.

Accusing a judge of bias is a sensitive issue, Flora acknowledged. He credited the panel for its willingness to listen to his position with impartiality.

None of the judges appeared to be appalled by the nature of the argument, Flora said. At the outset of the argument we acknowledged Judge Kosik has a lifetime of dedication and service and is an honorable man, but we told them that is not the standard for recusal and they understood that.

The Associated Press contributed to this story.

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