Posted on 02/12/2011 2:02:59 AM PST by Born Conservative
SCRANTON – Attorney Al Flora lost his bid to have a mistrial declared in former Luzerne County judge Mark Ciavarella’s corruption trial Friday, but he planted the seed for an appeal should Ciavarella be convicted, several attorneys said.
Flora requested U.S. District Judge Edwin Kosik declare a mistrial after Kosik objected, for the third time in two days, to questions Flora sought to ask prosecution witnesses regarding Robert Powell. The judge denied the motion.
The objections, which were raised by Kosik and not prosecutors, precluded Flora from introducing evidence he contends is important to Ciavarella’s defense of a 39-count federal indictment.
Kosik has expressed frustration with the U.S. Attorney’s Office’s failure to object to Flora’s line of questioning on several occasions during the first week of the trial, which will resume Monday.
Flora’s frustration level also peaked Friday after Kosik stopped him from pursuing a line of questioning of former Luzerne County prothonotary Jill Moran, who is Powell’s former law partner
“I note for the record this is the second or third time you’ve raised objections on your own to my questions without any objection from the government,” Flora said.
“Are you suggesting a judge can’t interject if evidence is not presented by the rules?” Kosik retorted. “I have a right to run this trial, whether the government objects or not, but you do not have the right to waste time.”
“With all due respect, I’m not wasting time,” Flora said.
The fact Kosik has raised objections would not, by itself, necessarily be enough to declare a mistrial. But that, coupled with allegations of bias that Ciavarella’s attorneys previously lodged against Kosik, have provided the defense a strong basis for appeal, said Charles H. Rose, a law professor at Stetson University College of Law in Gulfport, Fla.
“The judge has just stepped on something that is going to be problematic at the appellate level if the defendant is convicted,” Rose said.
Rose and David Debold, a Washington, D.C., attorney who specializes in federal criminal law defense, said a judge has the authority to raise objections on his or her own. Debold said that’s typically done to clarify a response a witness gave, or to have an attorney rephrase a question so that it’s in proper legal form.
“It’s less common for a judge to step in and exclude evidence where the other side has not objected,” said Debold, of the law firm Gibson, Dunn and Crutcher. “If a judge is coming up with his own reasons why evidence shouldn’t come in, it won’t result in a mistrial, but it could be an appeal issue . . . especially if it goes to an important aspect of the defense.”
Dan Richman, a law professor at Columbia University in New York, said Flora’s request for a mistrial, which was made in the presence of the jury, has certainly set the stage for an appeal. He’s not as convinced about strength of the issue, however.
“A defendant has a constitutional right to have an adequate cross examination of government witnesses. He needs to be able to pursue them. How far he gets to pursue them . . . those matters are at a judge’s discretion,” Richman said.
The indictment against Ciavarella alleges he and former judge Michael Conahan accepted $2.1 million in kickbacks from Robert Mericle, who built the PA Child Care and Western PA Child Care juvenile detention centers. They then extorted Powell, who co-owned the centers, into paying them more than $700,000 related to their operation.
Flora and his co-counsel, William Ruzzo, previously sought Kosik’s recusal from the case based on statements he made in 2009 to a newspaper reporter in which he questioned how Ciavarella and Conahan could deny engaging in a “quid pro quo” scheme involving the juvenile centers.
The attorneys alleged that showed Kosik was biased. His adversarial rulings during the trial have continued to fuel those concerns.
On Thursday, Flora tried to introduce Powell’s credit card statements from 2004 which showed extravagant spending. He maintained that showed he “was not in a position to be extorted.”
“Are you suggesting to tell the jury rich people can’t be extorted?” Kosik asked.
Flora also tried to introduce records that showed Powell had taken more than $2 million in cash out of accounts for the detention centers. Flora said that was evidence Powell was embezzling money, but Kosik again shot him down.
“Let’s say you show he’s a crook and embezzled money. How does that impact this case?” Kosik asked.
Friday’s showdown developed when Flora attempted to question Moran about Powell’s friendships with several area politicians.
“What’s this got to do with this case?” Kosik asked.
“The government has portrayed Robert Powell as an individual who had no one to turn to. We have a right to challenge that,” Flora said.
Kosik stated the defense would have the chance to raise that point when it presents its case, but it was not relevant at this point as Moran had not specifically testified to that issue.
While judges have the right to question the relevance of evidence, they need to tread lightly and ensure they do not overstep their bounds, Rose said. Rose said it seemed to him that Kosik went too far in this case given the defense’s position that Powell’s credibility is a crucial issue.
“There is clear case law regarding questioning the bias and the motivation for a witness to lie,” Rose said. “To not allow that sort of questioning, particularly when the prosecution did not object, is not something the judge should have done.”
Ping
This is why people hate lawyers
ping
... not relevant at this point as Moran had not specifically testified to that issue.
Isn't this essentially the same as hear-say evidence, which is normally disallowed if the real evidence can be presented through other witnesses? If so then Kosik is right, and should show that in his summation of any opinion. The prosecution won't object to anything that casts the defendants in a bad light, making their job easier to get the jury to convict.
The bad part is that it was played in front of the jury, showing them that there is contention between the judge and defense in support of the prosecutor. That plays to the defense's contention of a rail-road job in certain areas and gain more sympathy than they deserve.
Thanks for the pings, Trib.
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