Conduct Board admits not investigating complaints against judge (Luzerne County, Pennsylvania)

More proof on how useless so-called Judicial Conduct Boards have become in rooting out and investigating crooked, incompetent, or unethical judges.

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Conduct Board Admits Not Investigating Complaints Against Pa. Judge
Leo Strupczewski and Hank Grezlak

The Legal Intelligencer

March 09, 2010

Despite receiving four complaints since 2004 against former Luzerne County, Pa., Judge Michael T. Conahan, who is facing federal racketeering charges, the Pennsylvania Judicial Conduct Board never investigated any of them, it has admitted in writing.

In a 12-page response to written questions from the Interbranch Commission on Juvenile Justice, the JCB's chief counsel, Joseph Massa, wrote that the board did not conduct a preliminary investigation, conduct interviews or review any documents related to the complaints.

According to the JCB's answers, obtained by The Legal Intelligencer, the board received complaints against Conahan in 2004, 2006 and two in 2008.

And in a startling revelation, Massa said that, not only did the board fail to refer a detailed 2006 complaint to the U.S. Attorney's Office, he didn't turn it over to investigators until nearly 18 months later, in April 2008.

Massa's answers, along with additional information from the board's outside counsel, came in a 12-page document the commission had originally planned to use in support of a contempt petition filing with the state Supreme Court, commission Chair John M. Cleland said.

The board, though, answered the questions "substantially," Cleland said, and "for the time being that means there's no reason to pursue the contempt." "However, there is other information that we've requested that we haven't heard about, yet," Cleland continued. "That could change our view of this. We certainly appreciate very much the cooperation of the JCB in giving us what they have." Massa signed the verification for his answers on Feb. 26.

The filing appears to contradict prior statements the JCB has made in its case against former Luzerne County Judge Ann Lokuta.

In a Sept. 10, 2009, filing with the Court of Judicial Discipline arguing against a new trial for Lokuta, the board attached a five-page conclusion in which it detailed certain actions it took on complaints it received regarding Conahan.

In those papers, JCB Deputy Chief Counsel Francis J. Puskas wrote that the board conducted investigations into two complaints regarding Conahan and forwarded one, an anonymous complaint received Sept. 26, 2008, to the U.S. Attorney's Office.

Puskas said in February testimony before the commission that he did not write the five-page conclusion to his Lokuta filing and that there were inaccuracies in it. Massa provided him with those pages, Puskas said. Puskas refused to correct the inaccuracies for the record, however.

When the commission asked if there was a preliminary investigation into the September 2006 complaint "as stated in the Lokuta brief," Massa answered, "No." There was no explanation in the written answers of any apparent contradiction.

Massa said a memo was prepared in May 2007 regarding the September 2006 complaint and that it was circulated to members prior to its scheduled June 5, 2007, meeting. He said that he did not discuss the complaint with any of the JCB's members prior to the June 2007 meeting. Massa also said that he did not recommend the matter be deferred pending the completion of a federal investigation.

The matter was tabled until October 2007, he said.

In response to questions to individual board members, the JCB said that Massa's recommendation was to "authorize a full investigation." "The subsequent oral recommendation was to table the matter until the October 2007 meeting because of the pendency of the Lokuta trial," the board's outside counsel wrote.

The references to Lokuta's trial and Massa's recommendation that the board conduct a full investigation of Conahan raises anew the question of why the JCB allowed Conahan and his co-defendant, former Luzerne County Judge Mark A. Ciavarella Jr., to testify against Lokuta. Lokuta has alleged that she was targeted by them because she was raising questions about them and talking to federal authorities.

The document does answer a number of key questions that have been posed since The Legal Intelligencer first reported the existence of the 2006 complaint in September 2009, particularly what the JCB did with it and whether it referred it to federal authorities. The JCB and the commission had been sparring for months over information, with the commission at times accusing the board of stonewalling.

The document, though, fails to explain what happened to the 2006 complaint after the decision was made to table the discussion until the October 2007 meeting.

"[The 2006 complaint] was never placed on any subsequent agenda for action or for a report from chief counsel," the board's outside counsel said in response to a question about whether Massa reported on the status of the case.

Based on the written answers from Massa and the JCB, no action was taken on the complaint after the decision in June 2007 to table it.

The 2008 complaints were filed against Conahan in June of that year, Massa said. "The board decided to defer/stay the matters pending the outcome of the federal investigation," he said.

Massa also revealed that it was not the policy of the JCB to make board members aware of prior complaints filed against a jurist when discussing new complaints.

When asked about his appearance before a federal grand jury, Massa refused to answer.

"Because the grand jury proceedings are confidential I do not believe that I should answer this question," he said.

Conahan and Ciavarella are facing federal racketeering charges for allegedly taking $2.8 million from the builder and former co-owner of a private juvenile detention center in exchange for sending children to the facility.

Both ex-judges have denied the charges against them.

The JCB's outside counsel, Paul H. Titus of Schnader Harrison Segal & Lewis in Pittsburgh, answered questions directed at the board's members.

In his verification, also signed Feb. 26, Titus wrote that, in his work as the board's counsel, he has "reviewed records of the board and interviewed members of the staff of the board and members of the board so as to obtain the information needed to respond" to the questions posed by the commission.

Titus wrote in his answers that the board first learned of a complaint being filed against Conahan in a memorandum from Massa in May 27, 2005. That memo was included in materials sent to board members in preparation of a June 13, 2005, meeting.

With that memo, according to Titus, came a written recommendation from Massa to dismiss the complaint without preliminary inquiry.

Titus later said in answers to questions that the board was provided a written recommendation from Massa to authorize a full investigation into Conahan after it received the Sept. 28, 2006, complaint.

That recommendation was contradicted at the board's June 4, 2007, meeting, however.

Massa, at that time, orally recommended to the board that the matter be tabled until October 2007 because of the Lokuta trial, Titus wrote.

The board obliged and the matter was never placed on another agenda, Titus wrote. Similarly, Massa never provided another report on the matter for the board.

Titus could not be immediately reached for comment.