Pennsylvania Injury Law Report : Accident Attorney Philadelphia: Personal Injury Attorney Philadelphia (PA), Injury Lawyer Philadelphia - Kreithen Baron & Carpey

This will be the third time I’ve written about former Luzerne County judge Mark A. Ciavarella, Jr. who was convicted of racketeering and conspiracy by a federal jury in Scranton, Pennsylvania on February 18, 2011. The case involves Ciavarella and another former Luzerne County judge, Michael T. Conahan, and their sentencing of juveniles to a local detention facility from which they received $2.6 million in kickbacks.

This particular case is so alarming because it demonstrates the lack of civil rights protection afforded minors in the real world. The juveniles sentenced by Ciavarella and Conahan were by and large accused of misdemeanors and were literally pushed through the Pennsylvania judicial system. Ciavarella has been convicted, and Conahan has pled guilty. The case will be noted as one of the worst judicial scandals this country has ever seen.

Ciavarella and Conahan were accused of essentially:

• Taking almost $2.6 million in illegal payments from the builder of a juvenile detention center in Luzerne County
• Sending juveniles to the detention center for minor violations, in order to keep the detention center filled, thus earning this case the nickname of “Cash for Kids.”

Here is some commentary that has been written about the case. The first quote is from Yahoo News (1/28/09), and the second quote is from The New York Times (3/27/09)

The judges “cashed in” on the misfortune of youthful defenders even when probation officers and counselors recommended lesser sanctions against the youths. For monetary compensation said to be in the range of $2.6 million, the judges ruled that many youths who had committed minor offenses be warehoused at the newly constructed Pennsylvania Child Care Center in Pittston, Pa.

Things were different in the Luzerne County juvenile courtroom, and everyone knew it. Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt. Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.
“The judge’s whim is all that mattered in that courtroom,” said Marsha Levick, the legal director of the Juvenile Law Center, a child advocacy organization in Philadelphia, which began raising concerns about the court to state authorities in 1999. “The law was basically irrelevant.”

The prosecutors in the case were quoted as saying Ciavarella “used children as pawns to enrich himself.”

Regardless of the  Ciavarella conviction, and Conahan’s plea, this case brings to light the fact that juveniles were sent to the local Luzerne County detention center for minor violations, and typically because they were persuaded to waive their right to counsel. It seems obvious that minors accused of crimes, and their parents, should always consult with a lawyer before appearing in court. Even if cost is a factor, there are always avenues for inexpensive or free legal help.As lawyers, we assume the public is aware of their legal rights. We assume that at the very least the public knows to ask questions about their rights. Yet that is sometimes an incorrect assumption, especially with minors, who may find themselves intimidated by the legal process confronting them, and ill equipped to deal with it.  Of course, the sad irony is that juveniles who were in Ciavarella’s and Conahan’s courtrooms were some of the most vulnerable members of our society, for this very reason. 

Ciavarella and Conahan had no interest in protecting the kids that appeared before them, and the system failed them. With proper legal representation, many of these kids could have been spared their juvenile records and stays in the juvenile detention facility.  The American Bar Asoociation had this commentary when the case hit the news, which is noteworthy.

Though lawyers, politicians and parents are quick to condemn Ciavarella, questions continue to swirl about how the “kids for cash” scandal could have occurred. Not only do authorities say it went on for as many as five years; they also claim it was so blatant that they are astonished almost no one—including the lawyers who regularly practiced there—were willing to stand up and speak out about what was going on in Luzerne County. What is described in interviews, public records and court documents is a culture in which lawyers famously went along to get along rather than push back against a judge who openly and notoriously violated the law he was sworn to uphold—even when those violations af­fected the lives of children.

Parents or minors who read this, here's my pledge. I do not practice in the area of criminal law. I am a Pennsylvania personal injury lawyer. But, if you need a criminal lawyer in a case, I will find you a lawyer at no cost or at a very low fee. After what happened in Luzerne County, my brothers and sisters at the bar can't wait to make sure every Pennsylvania juvenile gets proper representation.

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Most, but not all, of my prospective clients are familiar with how the fee structure in a personal injury case works. With big Philadelphia law firms charging $1,200 per hour, as reported in the Wall Street Journal last week the contingency fee is proven once again as the best deal going for consumers. Under the contingency fee, the client pays nothing until the very end of the case. That’s right, no up front fees or costs. The entire financial risk of the case including the expenses of prosecuting the case are borne entirely by the lawyer. So, while the insurance companies can afford to pay fees at the going rate of $1,200 for partners and $700 for associates, by and large my clients can’t afford those rates.

Here's a quote from the Texas Supreme Court in a 2006 opinion on the value of the contingent fee agreement.

Although contingent fee contracts are increasingly used by businesses and other sophisticated parties, their primary purpose is to allow plaintiffs who cannot afford an attorney to obtain legal services by compensating the attorney from the proceeds of any recovery. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). The contingent fee offers “the potential of a greater fee than might be earned under an hourly billing method” in order to compensate the attorney for the risk that he or she will receive “no fee whatsoever if the case is lost.” Id. In exchange, the client is largely protected from incurring a net financial loss in connection with the representation. This risk-sharing feature creates an incentive for lawyers to work diligently and obtain the best results possible. A closely related benefit is the contingent fee’s tendency to reduce frivolous litigation by discouraging attorneys from presenting claims that have negative value or otherwise lack merit. 

That’s not to say that in a fee petition matter, for instance in a civil rights case, or in a PIP suit against an insurance company for non payment of medical bills, or in an insurance bad faith case, I would not petition the court for fees at the rate that Morgan, Lewis and Bockius is charging, that is, $1,200 per hour. (These fees would be paid by the defendant, not by my client). I would charge $1,200 per hour.  I know my work is worth that much.

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Thomas Killino, a former assistant district attorney in Luzerne County, testified last week in front of a special panel investigating judicial corruption in Luzerne County on the part of former Judges Mark A. Ciavarella and Michael T. Conahan. I’ve reported on the goings on in Luzerne County before.

This is from an article written by Philadelphia Inquirer reporter William Ecenbarger. This is what Killino said and how members of the investigating panel responded to what he said.

"We trusted the judge," said Thomas Killino, a former assistant district attorney when asked why he did not challenge many of Ciavarella's actions, including illegally obtaining forms from young defendants waiving their right to a lawyer. Much of the questioning centered on why prosecutors, probation officers, and public defenders did not challenge Ciavarella's failure to explain to defendants the consequences of waiving their right to counsel and of pleading guilty. This process, called a colloquy, is required by state court rules.

"Did it ever bother you that there was no colloquy?" asked George D. Mosee, head of the juvenile division of the Philadelphia District Attorney's Office.

"It was a fast-paced environment," Killino replied. "This was the established practice of the court. Everyone went along with it."

Mosee, who oversees the prosecution of about 10,000 juveniles a year, added: "I've never prosecuted a child who didn't have an attorney. How do you handle it?"

Killino said he was told that the defendants had signed written waivers outside the courtroom and that he believed those overrode the requirement for a colloquy in open court to determine that the juveniles understood that they had a right to an attorney.

When Killino confirmed estimates that more than half the child defendants who appeared before Ciavarella did not have attorneys, Judge Dwayne D. Woodruff asked him if he had ever read the juvenile law that required them to have counsel.

Killino said he had read parts of the law but not the entire law.

Later, Woodruff said he had heard about 4,000 juvenile cases and every defendant had a lawyer. Judge John C. Uhler asked Killino if there were instances when defendants without lawyers were sentenced without ever speaking in their own defense. Killino said there were, and that in those cases Ciavarella would move right on to sentencing in a matter of minutes. Later, Uhler said that in his 20 years as a juvenile court judge, no defendant had ever appeared before him without an attorney.

Killino testified that he and other prosecutors did not have enough information available to them to determine whether a sentence from Ciavarella was unduly harsh.

"Didn't you want to know?" demanded Jason D. Legg, a commission member who is a prosecutor from rural Susquehanna County. "It was not part of our purview," said Killino.

Later, Legg said he prosecutes hundreds of juveniles every year and they always have legal representation.  

How does this apply to your lawyer in charge of your personal injury case? You should question your lawyer periodically throughout the pre-litigation period of your case, as the case is litigated (meaning after suit is filed) and pre trial. Ask your lawyer pointed questions about the facts of the case. Is he or she familiar with your case when you speak to your lawyer on the phone. Has your lawyer fully and completely read the laws that apply to your case?

Mr. Killino was in a position of power. Maybe not to the same degree as the judges who uniformly sentenced the juveniles who appeared in their courtrooms. Still, as an ADA, Killino owed an obligation not just to the juveniles he was prosecuting, but to the judicial system as well. His client was Luzerne County and its citizens. The duty he owed to his client was to read and know the laws that applied to juveniles being sentenced without legal counsel. The fact that Killino was familiar with the law but not completely versed in the law is inexcusable.

He, and others who appeared in Ciavarella’s and Conahan’s courtrooms, did not want to rock the boat. It’s hard to be a whistleblower. But here there was no excuse.

Your personal injury lawyer should provide the benefit of his or her expertise, value to you in the handling of your case, leading to a satisfactory result and a solution to your legal problem. To do so your personal injury lawyer has to be able to provide you answers to your questions. He has to assist you in the decision making process in your case. If your lawyer can't do that, then get yourself a new lawyer. If your lawyer is familiar with the laws that apply to your case but is not completed versed in those laws and the updates to the laws that apply to your case, get yourself a new lawyer.

Just because there is a fancy degree on the wall of your lawyer's office doesn't mean he's informed. Thomas Killino is a good example of that.
 

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I previously wrote about the two Luzerne County judges, Mark A. Ciavarella and Michael T. Conahan who pleaded guilty in February to sentencing juveniles to secure detention facilities from which they received $2.6 million in kickbacks. Others associated with these events have also been charged.

The wrongdoings of the judges centered on the following:

• neither the juveniles nor their families were advised by the judges of their right to counsel,
• guilty pleas were accepted without explaining what the minors were charged with,
• and parents’ wages were garnished to pay for the costs of detention;
• the judges summarily and routinely ordered that youths who had committed relatively minor offenses be sent to residential youth detention facilities.

The detention centers, with the two judges’ assistance, received more than $30 million in county contracts. 

The story deserves and has received national attention.  A recent article in the The American Bar Association Journal takes the position that lawyers who regularly entered the two judges' courtrooms had an obligation to "blow the whistle" on the judges, whether or not the lawyers represented any of the juveniles who appeared before Ciavarella or Conahan.

In fact, it was uniformly true that the juveniles were never represented by counsel. And that is one of the lessons from the Luzerne County fiasco. Litigants need attorneys before they even think about entering a courtroom. 

In the insurance claims area, it is sometimes possible to handle a claim on your own without the help of a lawyer. For instance, in small property damage and small personal injury claims you may not need a lawyer. But you can bet that the insurance company will do its best to take advantage of you. The insurance company is in the profit making business. They are not around to help you with your claim.

I preach the following in any Pennsylvania accident or injury case: before you sign any forms, or before you give the insurance company a statement, consult with a qualified personal injury lawyer. That does not necessarily mean hire a personal injury lawyer. That means consult with one and then make an educated decision on how to deal with the insurance company.

The court system is not designed to protect the individual. You must be prepared to look out for your own interests.

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By now, most Pennsylvanians have heard or read about the two Luzerne County judges, Mark A. Ciavarella and Michael T. Conahan who pleaded guilty in February to sentencing juveniles to secure detention facilities from which they received $2.6 million in kickbacks. Others associated with these events have also been charged.

The wrongdoings of the judges centered on the following:

• neither the juveniles nor their families were advised by the judges of their right to counsel,
• guilty pleas were accepted without explaining what the minors were charged with,
• and parents’ wages were garnished to pay for the costs of detention;
• the judges summarily and routinely ordered that youths who had committed relatively minor offenses be sent to residential youth detention facilities.

The detention centers, with the two judges’ assistance, received more than $30 million in county contracts. As part of the guilty pleas, the judges have agreed to spend 87 months in federal prison. For the juveniles who have endured this nightmare, is their any other recourse other than the knowledge that the judges who sentenced them without adhering to the juveniles’ constitutional rights are in prison? Yes. To date, three separate lawsuits have been filed on behalf of the juveniles for violation of their constitutional rights. The basis of those lawsuits stems from the 14th Amendment of the U.S. Constitution which holds that no state, state agency or state employee can violate an individual’s rights afforded by the U.S. Constitution. A specific federal statute, 42 U.S.C. Section 1983 is the ignition that allows a lawsuit to be filed. That statute provides that an injured party in these types of cases must demonstrate a violation of a right secured by the Constitution and the laws of the United States and that the alleged deprivation was committed by a person acting under color of state law. So how is someone injured when their rights are violated? The two disgraced Luzerne County judges did not physically injure the minors who they sentenced. Nevertheless, the law allows for monetary compensation. Such cases frequently arise from police abuse/ brutality cases (violation of the 4th Amendment against unreasonable searches and seizures and 8th Amendment protection against cruel and unusual punishment), prisoner abuse by guards (8th Amendment) injury to a prisoner where a guard, warden, member of prison staff has knowledge of impending injury to a prisoner (8th Amendment). The hallmark of America’s civil rights is the protection from the State intruding upon its citizens. Individuals whose rights are violated have avenues that can be pursued.

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