makes me ill

March 28, 2009

Feds Turn Their Sights on Third Pa. Judge as Part of Corruption Probe

The Legal Intelligencer

March 13, 2009

Federal authorities are looking at Luzerne County Common Pleas Judge Michael Toole as part of their investigation into alleged corruption at the Luzerne County Courthouse, sources have confirmed to The Legal Intelligencer.

The focus of the investigation appears to stem from an allegation that Toole may have received a payment from attorney Robert Powell.

Federal authorities have previously charged that former President Judge Mark A. Ciavarella Jr. and former Senior Judge Michael T. Conahan accepted more than $2.6 million in kickbacks from Powell and another source while Powell was one of the owners of PA Child Care, a private juvenile detention facility. Both Ciavarella and Conahan pleaded guilty in February to both counts — honest services wire fraud and conspiracy to defraud the United States — in the criminal information filed against them.

The amount allegedly paid to Toole is believed to be substantially less than what Conahan and Ciavarella received, sources said. Those sources either would not, or could not, identify the reason for the alleged payment or the amount.

When asked if Toole had taken a payoff from Powell, one of Powell’s attorneys, Mark B. Sheppard, formerly of Sprague & Sprague and now a partner at Montgomery McCracken Walker & Rhoads, said he could not comment.

"It would be inappropriate for our client or I to comment at this time, except to say that Mr. Powell continues to cooperate fully with any investigation," Sheppard said.

Sheppard, along with other attorneys from Sprague & Sprague, had previously authored a letter released to the media in February disputing the notion that the money Powell paid to Conahan and Ciavarella amounted to kickbacks, and instead said that Powell was the victim of a judicial shakedown.

"First, it is grossly inaccurate to suggest that our client ever sought or had any influence in the sentencing of any juvenile offender. In fact, Bob Powell never offered to pay a single penny to these former judges. Instead, Bob Powell was a victim of their demands for payment," the letter said.

The letter goes on to say that, although Powell recognizes he made a mistake by not going to authorities, he remained silent about Conahan and Ciavarella’s demands because they exerted pressure on Powell and his clients.

"The record will show that despite this, Powell not only refused the judges’ continued demands for additional payments, but ultimately reported the conduct to authorities," the letter said.

The letter, also signed by Richard A. Sprague and Geoffrey R. Johnson, said Powell is continuing to cooperate with authorities and is integral to the U.S. attorney’s prosecution of Ciavarella and Conahan.

Toole did not return a call seeking comment Tuesday. A call to an attorney rumored to be representing Toole was not returned. A call to Martin C. Carlson, the U.S. attorney for the Middle District of Pennsylvania, was not returned.

Luzerne County Common Pleas Court President Judge Chester B. Muroski said he was not aware of any investigation involving Toole.

"I have not been notified by any law enforcement authorities that any such investigation is ongoing," Muroski said.

Muroski, who said last week that he was interviewed by federal investigators concerning court administration issues, would not say if Toole’s name had surfaced during questioning.

"I’m not going to discuss any portion of any discussions I’ve had with law enforcement authorities," he said.

Asked if he ever heard rumors that Toole allegedly accepted payoffs, Muroski responded immediately.

"Never," he said.

The only reported connection between Toole and Powell is a case from 2004 in which the newly elected judge allowed the former co-owner of PA Child Care to continue docking his yacht, "Reel Justice," at a Florida yacht club linked to Conahan and Ciavarella.

In the case, first reported by the Times-Leader newspaper in Wilkes-Barre, Jupiter Yacht Club Marina notified Powell in August 2004 that his lease would not be renewed because he had violated marina rules and regulations.

According to the Times-Leader , a member of Powell’s law firm, Stephen Seach, filed a complaint against the club in Luzerne County Common Pleas Court. Toole, the motions court judge, set a date for a hearing and held one on Oct. 21, 2004.

An attorney for the yacht club sent a letter to Toole, dated Oct. 20, 2004, questioning why the case was being heard in Pennsylvania and asking for a continuance, according to the Times-Leader. The attorney called the issues in the case "Florida matters."

According to the Times-Leader, the attorney for the yacht club had only been given one day’s notice for the hearing.

Toole’s order directed the marina to stop interfering with the renewal of Powell’s lease. He called for a full hearing on the issue, but the issue became moot. According to the Times-Leader, Powell withdrew his court action about two months later.

Toole had been on the bench for less than a year at the time.

According to a Feb. 10, 2009, article in the Times-Leader, Toole defended his decision and asserted that he had jurisdiction over the case because the plaintiff was from Pennsylvania.

"Our citizens, if they enter a contract here, shouldn’t have to fight a corporation in their hometown," Toole said, according to the Times-Leader.

While the initial charges in the federal probe centered around the allegations that Conahan and Ciavarella accepted kickbacks in exchange for sending kids to PA Child Care, sources have confirmed that the investigation has since grown to include allegations of case fixing in motor vehicle arbitration cases, alleged case fixing between Conahan and two admitted felons — including reputed mob boss William D’Elia — as well as scrutiny of other Luzerne County judges.

Sources have previously confirmed that D’Elia and his friend, admitted felon Robert Kulick — also a friend of Conahan’s, sources have confirmed — have been cooperating with law enforcement authorities in their investigation into alleged corruption in Luzerne County.

D’Elia has issued a statement through his attorney distancing himself from Kulick and Conahan.

"I in no way was involved with the judges and juvenile detention center and the Thomas Joseph lawsuit," D’Elia has said, according to his attorney James Swetz.

And late last week sources confirmed to The Legal Intelligencer that federal investigators are looking into a zoning case in which the owners of a hotel frequented by D’Elia challenged a zoning variance that would have allowed the county to build a new county-owned juvenile detention facility.

Before his election to the bench in 2003, Toole was a partner with Ciavarella at Lowery Ciavarella Rogers and Toole. Court records show that, on at least one occasion, Toole represented The Woodlands Inn & Resort — a hotel on the outskirts of Wilkes-Barre that has ties to D’Elia and that also received a pair of favorable rulings from Conahan in 2000 and 2003. There is no evidence to suggest that the plaintiffs improperly influenced either case.

The resort received another favorable ruling in 2003 from Judge Peter Paul Olszewski Jr. that blocked the construction of a county-owned juvenile detention facility near its property, because it might have scared away prospective guests. The decision essentially paved the way for the construction of PA Child Care.

That is a case federal investigators are looking into, sources have told The Legal Intelligencer. There is no evidence to suggest that the plaintiffs improperly influenced the outcome of the case.

During his time at the firm, Ciavarella represented Robert K. Mericle — the builder of PA Child Care.

Though he was not named in the criminal information filed by federal officials against Ciavarella and Conahan, Mericle’s construction company allegedly wired $1 million of the $2.6 million in kickbacks to a company over which the judges had control, according to the criminal information filed against the judges.

A review of Toole’s 2003 campaign contributions shows Mericle donated $600.

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