WASHINGTON — Denied.
That was all the U.S. Supreme Court had to say to ex-Luzerne County Judge Mark Ciavarella on Monday morning, an announcement that came on Ciavarella’s 64th birthday. The former judge is serving a sentence in the Federal Correctional Institution at Pekin, Ill.
But while the nation’s top court rejected Ciavarella’s petition to hear an appeal of his federal corruption conviction and 28-year sentence, Ciavarella may have one more option to pursue, defense attorney Al Flora Jr. said.
While the court’s ruling is the end of Ciavarella’s options on direct appeal, Flora said the former jurist has one year from Monday to file a post-conviction relief motion before U.S. District Court, where he was tried five years ago.
“He can’t raise any issues that were raised under direct appeal,” Flora said, but “everything else” is open.
As to what elements such an approach might include, Flora would not speculate Monday. He and co-counsel William Ruzzo have yet to discuss those matters in depth with their client, Flora said, as well as whether the pair would continue to represent Ciavarella should he opt to move forward.
Efforts to reach Ruzzo were not successful.
Ciavarella is aware of the decision, said Flora, who indicated he exchanged e-mails with his client, but he declined to comment on what Ciavarella “did or did not say” about the news.
Years of litigation
A Wilkes-Barre native, Ciavarella practiced law for two decades before being elected to the county bench in 1995. Named juvenile court judge in 2002, Ciavarella won another 10 years on the bench, by a vote of 21,069 to 14,366, in 2005. The next year, he was elected president judge.
Ciavarella resigned in March 2009 amid federal prosecutors’ allegations he and former county Judge Michael Conahan participated in a $2.8 million kickback scheme related to the construction of the PA Child Care facility in Pittston Township and the Western PA Child Care Center in Butler County and the placement of youths in the facilities.
Conahan ultimately pleaded guilty to a charge of racketeering conspiracy and was sentenced to 17 1/2 years in prison.
Ciavarella was convicted in 2011 by a federal jury on 12 out of 39 counts and sentenced to 28 years in what has widely been called the “Kids for Cash” scandal, a label he has repeatedly rejected, insisting he never incarcerated children in exchange for money.
His defense team unsuccessfully appealed his case to the 3rd U.S. Circuit Court of Appeals based in Philadelphia. That panel upheld all but one of the 12 convictions after trial before U.S. District Judge Edwin M.Kosik in February 2011.
In October, Flora and Ruzzo filed a petition for a “writ of certiorari” from the U.S. Supreme Court. Commonly dubbed “cert,” certiorari is a writ in which a higher-level court orders a reexamination of a lower court’s action.
When the court responds, either to accept or reject a petition, it typically does so in terse statements with little or no explanation.
That was the case Monday both with Ciavarella and the city of Hazleton’s petition regarding its embattled illegal immigration ordinances. Both appeared on a list containing dozens of other cases, headed simply “certiorari denied.”
Ruzzo and Flora argued Kosik should have recused himself after several testy exchanges that Flora contended showed a bias, as well as comments Kosik made in personal responses to letters from citizens.
The appeals court conceded Kosik shouldn’t have made the comments he did in the letters, but said that did not rise to the level set by the U.S. Supreme Court requiring recusal.
The Supreme Court filing by Flora and Ruzzo boiled down to three main points:
• Kosik’s “secretive extra-judicial statements to non-parties expressing his personal opinion about Ciavarella and the merits of the case pending before him created an ‘appearance of impropriety’ warranting recusal.”
• Federal law sets a five-year statute of limitations on non-capital crimes. Because Ciavarella’s convictions arose from cash received from developer Robert Mericle in 2003, his 2009 prosecution clearly came after the five-year deadline, the attorneys say. As well, they argue the matter was never addressed at trial, thus U.S. District Court and the U.S. Third Circuit Court of Appeals were wrong to reject appeals based on that point.
• Kosik at sentencing took into consideration conduct Ciavarella was accused of under 27 counts for which the jury acquitted him. Flora and Ruzzo argue that without such a consideration, Ciavarella would have faced a sentencing guideline of about 12 to 15 years’ imprisonment (151 to 188 months). Instead, he got 28 years, “due to the consideration of acquitted conduct,” leaving Flora and Ruzzo to ask whether that violated due process and the right to trial by jury.
‘A tough case’
In response, the U.S. Solicitor General’s Office filed a brief arguing that:
• Ciavarella’s petition lacked merit, disputing bias by Kosik;
• Sentencing guidelines are advisory, not mandatory; and
• There is no statute of limitations defense on the grounds that Ciavarella’s actions were part of an ongoing conspiracy that continued through 2009.
As Flora alluded to Monday, any post-conviction relief sought from U.S. District Court would have to address new issues.
“It was a tough case, obviously, and we advanced the best arguments we could,” Flora said.
“The Supreme Court only hears about 80 cases a year, and we knew this was a long shot, but we had an obligation to zealously advocate on behalf of Mark,” Flora said.