Posted on 05/12/2010 6:35:29 AM PDT by Born Conservative
SCRANTON – Aware he and fellow judge Mark Ciavarella were under investigation by a federal grand jury, Michael Conahan met with attorney Robert Powell in July 2008 and issued a dire warning:
“I’d never do anything to hurt you, but I never got the cash from anybody. That’s the story, and you better stick to it.”
It was July 2008, federal prosecutors say, and Conahan had met with Powell to discuss how they and Ciavarella could thwart the investigation into their alleged financial connections to the PA Child Care juvenile detention center that was then co-owned by Powell.
He had no idea Powell had already become a federal informant and was recording the conversation.
The recording, one of six made by Powell between July and September 2008, is among the key evidence in the corruption case against Conahan and Ciavarella. Whether a jury ever gets to hear it or the other recordings will be up to a judge to decide.
In a pre-trial motions filed in March, attorneys for the ex-judges argued the recordings should be suppressed because Powell was party to a “joint defense agreement,” therefore the conversations were protected by attorney-client privilege.
But the U.S. Attorney’s Office, in a reply filed Tuesday, contends Conahan and Ciavarella lost that protection because they were discussing committing crimes, including suborning perjury and obstruction of justice, in order to derail the grand jury investigation.
The issue is among more than a dozen legal disputes that U.S. District Judge Edwin Kosik is faced with deciding as he considers various motions that challenge a 48-count indictment that was issued against Conahan and Ciavarella in September.
Attorneys for Conahan and Ciavarella filed a combined total of 45 motions that seek, among other things, to dismiss the case based on allegations of prosecutorial misconduct, a change of venue and the recusal of Kosik from hearing the matter.
Conahan has since entered into a plea agreement that calls for him to plead guilty to one count of racketeering conspiracy. The government’s reply treated his case as though he were still facing trial with Ciavarella, who has not reached a plea deal.
Among the most crucial issues to be decided by Kosik revolves around the government’s use of Powell as an informant.
Prosecutors allege Conahan and Ciavarella improperly accepted more than $2.8 million from Powell and real estate developer Robert Mericle in exchange for rulings that benefited the PA Child Care and a sister facility, Western PA Child Care. Mericle built both facilities.
Powell was initially a target of the investigation with the ex-judges, but later agreed to cooperate with authorities.
Defense attorneys argue that prosecutors engaged in gross misconduct by allowing Powell to record conversations with Conahan and Ciavarella without first withdrawing from the joint defense agreement. The agreement protects communications between any person and an attorney for another person relating to efforts to devise a defense strategy.
The defense argues Powell’s actions permitted federal agents to learn about Conahan and Ciavarella’s defense strategy in violation of their right to due process. The violation was so egregious, they say, that Kosik should dismiss the entire case or, in the alternative, suppress the recordings.
In a 141-page reply, U.S. Attorney Dennis Pfannenschmidt said prosecutors were completely within their rights to utilize Powell. His office, aware that defense strategy might be revealed, assembled a “taint” team of persons not involved in the investigation that reviewed the recordings and redacted any information that might be deemed to be protected by attorney-client privilege.
The more pertinent issue, Pfannenschmidt said, is the nature of the conversations between Powell, Ciavarella and Conahan.
The judges were not discussing defense strategies, Pfannenschmidt said, but how they intended to commit additional crimes by perjuring themselves before the grand jury. That falls within an exception that negates any protection they might have been afforded by the joint defense agreement, he said.
“The fact that individuals planning criminal acts have retained counsel does not create a blanket immunity to plan and execute their criminal scheme,” Pfannenschmidt said. “There is no constitutional right to suborn perjury or obstruct justice.”
Pfannenschmidt also opposed the defense motions to transfer the case to another state based on extensive pre-trial publicity, and to have Kosik recuse himself based on alleged bias he expressed against the ex-judges in a conversation with a reporter from the Citizens’ Voice newspaper.
Regarding the change of venue, defense attorneys sought to transfer the case to Delaware for trial based on a study they commissioned that showed that 72.5 percent of respondents polled were familiar with case and that 68.8 percent of those people said they felt the ex-judges were “definitely or probably guilty.”
Pfannenschmidt acknowledged there has been extensive media coverage of the case, but said that does not necessarily mean an impartial jury cannot be empanelled.
Pfannenschmidt said most of the media coverage has targeted audiences in Luzerne and Lackawanna counties. He noted a jury would be pulled from a total of eight counties within the middle district’s jurisdiction. He suggested Kosik hold off on deciding that issue until jurors are selected and polled regarding their knowledge of the case.
As for Kosik’s status, defense attorneys want him off the case based on comments he made to Citizens’ Voice reporter Michael Sisak.
In a story published Aug. 2, Sisak quoted Kosik as questioning how Conahan and Ciavarella could deny there was a “quid pro quo” arrangement regarding payments Powell allegedly made. Prosecutors say that money was tied to Ciavarella’s placement of juveniles at PA Child Care and a second center Powell co-owned, Western Pa Child Care.
The defense maintains the comment shows Kosik had already made up his mind regarding some aspects of the case. But Pfannenschmidt argues Kosik’s statement merely reflected his views that were expressed in a written opinion he authored in July that rejected a plea deal that had originally been worked out with Conahan and Ciavarella.
Kosik will now take the defense motions and government’s reply under consideration and issue a ruling at a later date.
Ping
ping
These people lust power so badly that they simply can't be trusted to be rational or even moral when exercising it.
These creeps need a date with a stout hemp rope for what they did.
Looks as if the USA did a good prep job. Give the crooks the same cumulative sentences they assigned in their manufactured trials. That ought to keep them out of circulation for a good while!
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