UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Transcription

1 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : NO. 3:CR vs. : : MARK A. CIAVARELLA, JR. : (JUDGE KOSIK) BRIEF IN SUPPORT OF MOTION TO TRANSFER VENUE I. PROCEDURAL HISTORY OF THE CASE On September 29, 2010, the Government filed a superseding Indictment charging the defendant with Racketeering, 18 U.S.C (c), Racketeering Conspiracy, 18 U.S.C (d), four counts of Honest Services Wire Fraud, 18 U.S.C. 1343, 1346 and 2), four counts of Honest Services Mail Fraud, 18 U.S.C. 1341, 1346 and 2), ten counts of Corrupt Receipt of Bribe/Reward for Official Action, 18 U.S.C. 666(a)(1)(B), Money Laundering Conspiracy, 18 U.S.C. 1956(h), five counts of Money Laundering, 18 U.S.C (a)(1)(b)(i), eight counts of Extortion under Color of Official Right, 18 U.S.C. 1951, Conspiracy to Defraud the United States, 18 U.S.C. 371, and four counts of Subscribing and Filing a Materially False Tax Return, 18 U.S.C (1). Document #134. Thereafter, the defendant waived arraignment and entered a plea of not guilty to the charges contained in the Indictment. Document #140. On October 20, this court entered an order granting the defendant an extension of time to file pre-trial motions to October 31, Document #144.The

2 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 2 of 7 defendant filed four timely pretrial motions which are now pending before this court for disposition. These motions are: to Dismiss certain counts based upon the Statute of Limitations, Document #149, to Compel Disclosure of Brady Material, Document#150, to Dismiss Honest Services related Counts, Document #151, and to Transfer Venue, Document # Under a prior Indictment, the defendant had sought a venue transfer based upon pre-trial prejudicial publicity. Document #40 and 75. This court denied that motion without prejudice. Document# 117. On October 22, 2010, this Court issued a memorandum confirming that, with the consent of the government and defendant, it would exclude potential jurors from Luzerne and Lackawanna Counties, and that this exclusion would be without prejudice to defendant s venue motion. Documents #145, 147, 148. The October 22, 2010 memorandum arose out of the extensive prejudicial pretrial publicity surrounding this case. Jury selection is now scheduled for February 11, 2011 in Scranton, Pa. The defendant has now presented a second venue motion to this court again alleging that venue should be transferred due to extensive pre-trial publicity. Document#152. This brief is filed in support of defendant s second Venue motion. 1 The defendant had also given notice to the Court that he did not abandon claims set forth in prior pretrial motions or those in which he joined with the co-defendant Conahan and which had been left undecided. The defendant also renewed his request for this Court s recusal based upon those reasons previously provided. Document #153. This Court again denied recusal and granted in part and denied in part the prior outstanding motions. Document #154

3 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 3 of 7 II. STATEMENT OF FACTS Defendants prior venue motions (Documents# 40 &75), which are incorporated herein by reference, were supported by an Affidavit from Dr. Arthur Patterson who conducted a venue study and an investigation into the nature and extent of pretrial publicity. A copy of the affidavit and voluminous supporting documents, which had previously been given to the court and government, covered the period January 1 through November 30, When this court entered its July 6 order denying the first venue motion, it did not have the benefit of reviewing the continued flood of publicity occurring between November 2009 through the date of the filing of the second venue motion on November 1, During this period additional justification has arisen supporting a second venue request despite the exclusion of eligible jurors from Luzerne and Lackawanna Counties. During the period from December 2009 through November 1, 2010, the record reflects that an additional 159 news stories appeared in the print media about the defendant and this case. See Document #152, Exhibit #1 attached thereto. In May 2010, the Interbranch Commission on Juvenile Justice, which was created to investigate the juvenile justice scandal in Luzerne County, issued a report and recommendations available on the Web site of Pennsylvania s Unified Judicial System at:

4 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 4 of 7 The Interbranch Commission report, excerpts which are attached to defendant s venue motion (Document # 152) as Exhibit 2, states in part, Conahan and Ciavarella were and are at the center of the kids for cash scandal in Luzerne County that, beginning with the filing of federal charges against them on January 26, 2009, released a flood of negative publicity on the former judges themselves and on the juvenile justice system of Luzerne County. (emphasis added) Page 5. These are the men-ciavarella and Conahan-who are directly responsible for the failure of the juvenile justice system in Luzerne County. Page 19. Recently, a transcript of an August 5, 2010 conference with the Court was publicly released without notice of filing being given to the defendant. Media reporting on this transcript includes a headline that the co-defendant Conahan will testify against the defendant. The body of the story also includes reference to this Court s own concerns about media coverage. See October 27, 2010 story in Citizens Voice attached as part of Exhibit 1 to Document#152. III. STATEMENT OF QUESTION INVOLVED 1. Whether the dictates of Skilling warrant a venue transfer based upon a presumption of prejudice arising from pre-trial publicity in this case? IV. ARGUMENT The U.S. Supreme Court in Skilling v. United States, 130 S.Ct (2010), although denying Skilling s claim that he was denied a fair trial due to adverse

5 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 5 of 7 pretrial publicity, offered specific guidance as to the circumstances under which prejudicial pretrial publicity should be presumed and a venue transfer granted. Factors such as whether the publicity contains stories of the defendant s plea of guilty, whether media attention has collapsed, whether the publicity has been directed at the defendant and not just the event, and the size and characteristics of the community in which the crime occurred are to be considered. Of significance to the Court in Skilling was the fact that Skilling could not point to any news stories showing that he, rather than the co-defendant, pled guilty. All of the factors which the Skilling Court identified as would warrant a venue change based upon a presumption of prejudice arising from pre-trial publicity are present in this case. The record clearly shows that media attention has not collapsed and can be expected to become more pervasive as trial of this case comes closer to fruition. As so aptly and correctly described by the Pennsylvania Interbranch Commission, the filing of the federal charges released a flood of negative publicity against Conahan and Ciavarella. This publicity, as the record bears out, is directed both at the defendant and the event. Though the crimes for which the defendant is charged are alleged to have occurred in Luzerne County, the impact of these crimes is statewide as reflected by the Interbranch Commission Report and the Affidavit from Dr. Arthur Patterson who conducted a venue study and an investigation into

6 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 6 of 7 the nature and extent of pretrial publicity. A copy of the affidavit and voluminous supporting documents, which had previously been given to the court and government, covered the period January 1 through November 30, Most significantly, the publicity does contain stories of the defendant s plea of guilty. Excluding potential jurors from Luzerne and Lackawanna Counties, coupled with the use of a jury questionnaire, does nothing to alleviate the presumption of prejudice that arises in this case. It can reasonably be expected that other counties in the middle district, outside of Luzerne and Lackawanna, have also experienced the flood of negative publicity. See Patterson Affidavit submitted in support of prior venue motion. Requiring the defendant to establish actual prejudice resulting from the publicity by going through voir dire creates a serious risk that selected jurors will possess a lynch mob mentality despite their own professed assessment of self-righteousness. This is the very reason for the presumption of prejudice standard, as it is the only means to insure the defendant s right to a fair trial by an impartial jury under such circumstances. See, Patton v. Yount, 467 U.S. 1025, 1031 (1984); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); F.R. Cr. P. 22. V. CONCLUSION The defendant requests that venue in this case be transferred to a district outside of Pennsylvania.

7 Case 3:09-cr EMK Document 156 Filed 11/15/10 Page 7 of 7 /s/ Al Flora, Jr., Esq. /s/ William Ruzzo, Esq. Al Flora, Jr., Esq. William Ruzzo, Esq. Counsel for Defendant