Bob Dylan's lawyers, a dark day in Luzerne County, and learning to take legal ethics seriously.

AuthorLee, Randy
PositionBob Dylan and the Law

"Some of us'll wind up to be lawyers and things." (1)

Introduction I. Where's Bob, Chronicles, and Learning to Be like Him II. Woody Guthrie, The Lost Land, and Seeking a Poet in Lawyers III. Archibald MacLeish, The New Morning, and Providing the Light of Perspective IV. Danny Lanois, Oh Mercy, and the Kiss of Justice V. John Hammond, River of Ice, and Being a Reason to Stand. Beginning Again INTRODUCTION

One afternoon, one of my Professional Responsibility students shared with me how she had decided that she wanted to be a lawyer. Bob Dylan has written about times where "[i]t's getting dark, too dark for me to see," (2) times where "[r]eality can be overwhelming," or even "a shadow, depending on how you look at it," (3) and those were the kind of times she had been going through when she had made her decision.

It had been shortly before her sixteenth birthday. Her parents had just divorced. Her loving mother had emotionally collapsed and had had to stay for a time at a mental health facility to recover. Her dad, who had been searching for work, had ended up having to move several hours away from her and her mother to take a job in another town. She told me that she had "left a trail of memories from a small town in Pennsylvania" as she had had to go off to live with her grandmother.

That summer, with all that swirling about her, my student had received an invitation to vacation for a few days at the beach with her aunt and her aunt's family. Her aunt was a lawyer. I remember my student's description of the last day of her vacation with her aunt:

My aunt waved me over to where she was sitting on the beach. The vacation provided me with the rest that I needed; yet, I was still concerned about returning home and wondered what lay ahead for my family. My aunt was sitting in a chair with her feet touching the small waves. On her lap, a book was half-finished. I sat next to her, and for about an hour, we peered out into the ocean, the silence blanketing us. She gazed out into where the water met the sky, and I stared at her profile. Softly, she told me something that I carry with me every day. "Everyone has tough times in their lives. You can be overwhelmed, exhausted, hurt, and you can cry out in pain. But never lose hope. Hope is how people survive." She told me that the dust will settle and that there will be a time of peace. She looked back over the ocean, and I did the same. By sharing those words with me, she attested to the power of hope and courage. I began to believe that life would change for the better. I began to want to be for others what my aunt was for me. In 2007, another girl about sixteen years old would meet another lawyer. This time, however, they would not meet on a beach, but in a courtroom in Luzerne County, Pennsylvania. Still, here again, the lawyer would address the problems the girl was encountering and intervene in her life. Like my student, this girl, who would come to be known as Ms. j., (4) would also end up going on to college and wanting to be a lawyer. Thus, in a sense the two girls' stories are very much the same. Yet, in another sense, their stories are very different because, although my student decided she wanted to be a lawyer so she could be everything her aunt was, Ms. J. decided that she wanted to be a lawyer so she could be everything the lawyer in her story was not.

The lawyer Ms. J. encountered was Judge Mark A. Ciavarella. Ms. J. was a junior in high school when she met Judge Ciavarella. He presided over her delinquency hearing. Ms. J. had been arrested for possession of drug paraphernalia: "a lighter and a pipe which, she said, belonged to a friend." (5) Ms. J. insisted that she had always been a good student and, until that time, "had never been in trouble at school, let alone in trouble with the law." (6) Ms. J. insisted that "no one [that day] asked her if she understood that she had a right to a lawyer," (7) and she appeared before Judge Ciavarella without one. Ms. J. testified:

The court officer read the charges and asked me how I intended to plead .... I thought my only option was to plead guilty, so that is exactly what I did. No one asked me whether I understood my right to contest the charges, whether I understood the consequences of my admission, or whether I had discussed my admission with my parents or lawyer. Ciavarella declared that I would be sent away, but he didn't say where or for how long. I was immediately handcuffed and escorted out of the courtroom to a small waiting room by a sheriff. I did not even have a chance to say goodbye to my father. (8) Judge Ciavarella sent Ms. J. to a residential facility for three months. Ms. J. said she tried to keep up with her schoolwork there, but "found it difficult because the quality of teaching at the facility was poor." (9) When she returned to her high school, she caught up on her studies but not with her friends and "was frequently humiliated by being summoned from class to be searched for drugs." (10) Ms. J. said her encounter with Judge Ciavarella had left her with "a deep mistrust of the American legal system." (11)

Were it not for what happened two years after Ms. J. and Judge Ciavarella met, one might still accept the stories of Ms. J. and my student simply as examples of two different ways in which lawyers save: sometimes they can be gentle and nurturing, but sometimes they must be harsh and stern. Although Ms. J. never became a fan of Judge Ciavarella's methods, she did end up in college and advancing toward law school, and Judge Ciavarella did have others who were his fans. "[P]arents and teachers would come to the courtroom and thank him." (12) Children he had adjudicated delinquent would return to tell him things like, "I was addicted to pain killers, and I was traveling down the wrong road, and you saved me." (13) In fact, during the time Judge Ciavarella sat in Luzerne County Juvenile Court, the county's "delinquency recidivism rate went down." (14)

On January 26, 2009, however, the United States Attorney for the Middle District of Pennsylvania charged Luzerne County Common Pleas Court Judges Mark A. Ciavarella, Jr. and Michael T. Conahan with defrauding the public of the right to honest service by elected public officials. (15) With the subsequent conviction of the two judges, the opportunity to reconcile the stories of my student and Ms. J. as complementary ways that lawyers save was irretrievably lost.

According to the charges brought against Judges Ciavarella and Conahan, the two judges had received $2.6 million in payoffs from the owner and builder of two juvenile detention facilities after entering into "agreements guaranteeing placement of juvenile offenders" in those facilities. (16) During this time, "Ciavarella, as the juvenile court judge of Luzerne County, had been placing large numbers of juveniles in detention at those facilities." (17) During this same period, 1866 juveniles had appeared before Judge Ciavarella without attorneys (18) and none of these juveniles had "knowingly and intelligently waived his/her right to counsel," according to a separate investigation ordered by the Pennsylvania Supreme Court. (19) The Supreme Court investigation further concluded that "Judge Ciavarella knew he was violating the law and court rules by failing to conduct any, or legally adequate, waiver of counsel colloquies for the juveniles appearing before him." (20)

In addition to sending children to juvenile detention for being adjudged delinquent, Judge Ciavarella also sporadically presided over a proceeding known as "fine court," in which "juveniles who had not paid court-ordered fines or restitution were summoned to appear before the judge." (21) These juveniles were subsequently "ordered into detention" if they still failed to pay. (22) Children as young as ten were led out of fine court in handcuffs. Very few, if any, of these children were represented by counsel, although sometimes a prosecutor would attend. (23) The proceedings were brief, and once in detention, the youths would remain there until their fines were paid. (24) Ultimately, the county director for Human Resources was able to get fine court closed because "as a business operation it didn't make any sense for us to be trying to collect $400 by placing someone in a facility at $200 a day." (25)

In August 2009, Pennsylvania created the Interbranch Commission on Juvenile Justice "to investigate the juvenile justice scandal in Luzerne County and to develop appropriate recommendations for reform." (26) In its final report, the Commission described fine court as "one of the most Dickensian of Ciavarella's judicial practices," and as a proceeding by which the county's juvenile detention facilities "became a debtor's prison for children." (27)

In response to its investigation of Judges Ciavarella and Conahan, the Pennsylvania Supreme Court "directed that adjudications and consent decrees involving all juveniles who had appeared before Ciavarella between January 1, 2003 and May 31, 2008, be vacated and the records expunged." (28) While this order sought to rectify injustices that Judge Ciavarella had imposed on these youths, it also meant that "stay-away" orders he had issued to protect other children from juveniles who had attacked them no longer would be in effect. In addition, records no longer existed "to look back to in the event of a future attack by the violence-prone student," and restitution orders were vacated for the victims of thefts, arson, and vandalism. (29) Children and parents who had been encouraged to come forward and "do the right thing in seeking justice in the juvenile justice system" found their efforts "had been in vain." (30)

Pennsylvania's Interbranch Commission began its account of what went wrong in Luzerne County by describing the petition that the Juvenile Law Center of Philadelphia filed with the Pennsylvania Supreme Court on April 29, 2008. The petition "contended that a matter of urgent...

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