Thomas P. Crofcheck’s business card identifies him as Director of the Division of Audit and Review of the Bureau of Financial Operations of the Pennsylvania Department of Public Welfare. He joined the department thirty-three years ago right out of college with an accounting degree. Today, there’s no CPA after his name. Instead, it’s CFE—Certified Fraud Examiner. He is the head whistle-blower for the state agency that spends more than any other. One of the Public Welfare Department’s many responsibilities is the child welfare system, including juvenile detention facilities like PA Child Care, which it inspects and licenses. Before 2006, most of the money for these facilities came from the department, which used a combination of state and federal funds to reimburse the counties. Crofcheck’s role is to ensure that this money is being used wisely and appropriately.
Crofcheck lives in the Luzerne County community of Freeland, and one day he happened to come across a three-inch story in the local Hazleton Standard-Speaker stating that county commissioners were planning to “save money” on juvenile detention costs by replacing the current method of paying a fixed rate for each day a child is held with a long-term lease of the PA Child Care facility. Crofcheck was flabbergasted by the terms of the proposed lease—twenty years for $58 million. Then he remembered that back in May he had received a note from an alert department licensing monitor in Scranton saying that during its first ten months of operation, PA Child Care had realized profits of $1.2 million on income of just $4.3 million. Crofcheck knew that this level of profit—28 percent—was extraordinary for a startup company—and it probably meant that the state was paying too much for these services.
On October 19, 2004, Crofcheck sent an email to senior management in the department’s Child Welfare Services Bureau with the subject line “Bad Deal” and said he planned to audit PA Child Care. He said daily rates were too high and then added, “In the conversation with the county we were informed that the proprietors of the facility are anticipating building three more of these facilities across the state. We were also informed that the partners of PA Child Care include a number of influential people, including the son of a Supreme Court Justice.” The department’s Scranton field office normally would have done this audit, but it was too busy on another investigation. Crofcheck thought the PA Child Care situation was so grave that he would do the audit himself with the help of three other staff auditors. At this point, he believed that the Luzerne County commissioners were unaware that they were overpaying for juvenile detention services, and so on October 21 he informed the county of his plans to audit PA Child Care and suggested that the commissioners delay action on the proposed $58 million lease until the inquiry was complete. But just one day earlier the commissioners had given tentative approval to the lease.
Crofcheck had planned to begin the audit in January 2005, but now he moved in immediately. Within a few weeks his auditors concluded that the rates that the county was paying were 42 percent higher than any other county in northeast Pennsylvania, and it had been overcharged by at least $280,000. There were hundreds of instances of double billings, and generally poor financial oversight by the county. The auditors also criticized the proposed $58 million lease as “excessively slanted in favor of the landlord.” The auditors determined that the county could build three juvenile detention centers for the cost of the lease. But when the auditors tried to delve further, PA Child Care officials denied them access to the facility’s depreciation records on grounds that they were proprietary. Without these records, the audit was stymied. Crofcheck faxed an urgent letter to the commissioners on November 16, notifying them that the audit would be held up and urging them to delay action on the lease until the audit could be completed. Crofcheck said he wanted to help the commissioners “make an informed decision” about the lease. Crofcheck offered to meet with the commissioners and share his findings in greater detail. But two of the three commissioners—Greg Skrepenak and Todd Vonderheid—claimed they never received the fax, though the third one—Stephen Urban—did. The next day Skrepenak and Vonderheid voted to approve the lease over Urban’s objections.
The decision drew the attention of Steve Flood, who as county controller was a kind of fiscal watchdog responsible for the money affairs of the county. Crofcheck telephoned Flood seeking further information. Flood asked for the working papers of the audit.
“I can’t do that,” Crofcheck said.
“What if I subpoena them?”
“That will do it.”
“I’ll fax you the subpoena.”
Crofcheck received the faxed subpoena, scanned it into his office computer, and emailed it to the DPW legal department, which said it was valid. On the required date, Crofcheck traveled to Wilkes-Barre to deliver the audit information personally. Flood promptly leaked select documents to the Times-Leader, which quickly published a lengthy story on the critical findings. He also held public hearings on the lease and began questioning Skrepenak and Vonderheid at commissioner meetings. Flood came near to being ejected from one of the meetings because of the stridency of his opposition to the lease. Finally, in December, attorneys for PA Child Care filed a lawsuit against Flood, Crofcheck, and Leonard Pocius, another state official, in Luzerne County Court claiming they had released unspecified “trade secrets” by leaking the audit information to the Times-Leader. PA Child Care asked the court to seal all records in the case—and the motions were granted swiftly and conveniently by Judge Michael Conahan. The result would be a two-year delay in completing the audit.
Steve Flood was a flamboyant character who sometimes over-stepped himself and propriety in his efforts to expose waste in county government. Although many officials privately agreed with him on the lease, they feared retribution from the Boss if they went public. And so Flood was widely portrayed around the courthouse as a kook who was way off base on the PA Child Care issue. When Flood failed to appear at a court hearing because of a mixup in communications in January 2004, Ciavarella threatened to put him in jail. Flood was running for county commissioner when he suffered a stroke in March 2007, leaving him unable to walk. He died in 2011.
Tom Crofcheck’s troubles were just beginning. He had been sued personally by PA Child Care, deposed by PA Child Care’s attorneys, and had his home telephone records subpoenaed. Eventually, he would be called on the carpet by his superiors in Harrisburg, labeled incompetent, and threatened with removal from his job. But not before he turned over the audit records to the FBI.
5
THE ELEPHANT IN THE COURTROOM
In October 2005, sixteen-year-old John appeared in Luzerne County Juvenile Court to answer charges that he had shot out several windows in a Wilkes-Barre home with a BB gun. The boy had never been in trouble with police before, and even the homeowner asked the judge to be lenient. Nevertheless, Ciavarella, after repeatedly silencing the boy’s court-appointed defense attorney, ignored the homeowner’s request and in a matter of minutes banged his gavel, saying, “Adjudicated delinquent!” John was handcuffed, shackled, and taken in a van some fifty miles to Camp Adams, where he spent the next three months in the company of real delinquents serving time for stealing cars, drug dealing, and armed assault. The brief hearing in courtroom 4 was closed to the public, but it was witnessed by an assistant district attorney, the public defender, lawyers, probation officials, bailiffs, clerks, and other court staff. No one present spoke up against the inappropriateness of the sentence. Also silent outside the courtroom were the police, his teachers, and school administrators.
Silence is an extremely effective form of lying, but most silences are pauses, interludes, breaks in the action. The silence in Ciavarella’s courtroom was deep and abiding, six years long, and it was never broken from within by the people who were closest to it. It was a conspiracy of silence. A large group of people agreed to ignore an unpleasant truth of which they were all aware. It is not an unusual phenomenon. Conspiracies of silence have existed at all times and at all levels of society. They happened in the antebellum South, where sexu
al relations between masters and slaves were common. For many years the Roman Catholic hierarchy kept mum about sexual abuse of children by priests. Baseball officials celebrated the shattering of long-standing home run records in the face of clear evidence that it was accomplished with the aid of steroids. During the civil rights battles of the 1960s, Martin Luther King warned us, “We will have to repent in this generation not merely for the hateful words and actions of the bad people, but for the appalling silence of the good people.” A generation earlier, Mahatma Gandhi said, “Non-cooperation with evil is as much a duty as is cooperation with good.”
In 2006 Eviatar Zerubavel, a Rutgers University sociologist, published The Elephant in the Room, a study of “silence and denial in everyday life.” He said one of the underpinnings of group censorship was “knowing what not to know.”
Thus, despite the fact that the Nazi deportations of German Jews to Eastern Europe were often carried out in public (not to mention the widespread rumors about what awaited them there), many Germans knew enough to know that it was better not to know more. By the same token, although people who lived near the death camps could clearly identify the unmistakable source of the smoke and the stench coming out of the crematoria, they nevertheless avoided asking “unnecessary” questions and, feigning ignorance, by and large tried to look innocent by not noticing. (Unlike tactful, “civil” inattention, however, this was clearly motivated by fear and designed to protect oneself rather than save someone else’s face.) In other words, they pretended to ignore what they otherwise could not help but notice. [They] learned that if awareness of what was happening in and around the camp was unavoidable, one might still look away. Although cognizant of the terror in the camp, they learned to walk a narrow line between unavoidable awareness and prudent disregard. In so doing, they thus came to embody the type of citizen who makes the authoritarian regime possible: not speaking, not looking, not even asking afterward, not once curious.
Although juvenile court proceedings are not open to the public or media, there were always a dozen or more adults in the courtroom when Ciavarella was violating the most basic constitutional rights of children. Stenographers, tipstaffs and other court officers, prosecutors, public defenders, probation officers, police, and attorneys with other cases all were witnesses. Many of the onlookers were lawyers who had taken an oath to uphold the Constitution. Under the Rules of Professional Conduct adopted in 1988 by the Pennsylvania Supreme Court, lawyers in Ciavarella’s courtroom were obligated to report the judge’s rights violations. Under rule 8.3, the lawyers aware of his actions should have reported him to the Judicial Conduct Board or the Supreme Court’s Disciplinary Board. In addition, the prosecutors were required under rule 3.8 to report the huge number of children appearing before Ciavarella without counsel.
Yet no one objected when the judge sent away eighty-two-pound Matthew the steak-thrower, fourteen-year-old Angelia the epileptic, and eleven-year-old Ryan, the boy who couldn’t pay a $488 fine. Something very unusual and sinister was going on in the courtroom, and the truth was dancing before the spectators’ eyes. A fifteen-year-old boy was sent away for three months for pushing a classmate into a locker. A fifteen-year-old girl was jailed for shoplifting a $4 jar of nutmeg. A thirteen-year-old girl was brought before Ciavarella for fighting on a school bus. The judge asked why she did it. Rather than answer, the girl started crying. Ciavarella sent her way for three months for not answering his questions.
At the center of this web woven by silence were three individuals: David W. Lupas, the district attorney; Sandra Brulo, the chief probation officer, and Basil G. Russin, the chief public defender. The common denominator among them and their subordinates was an acceptance of zero tolerance. There is no indication that any public defender ever interrupted one of Ciavarella’s tirades against a cowering juvenile. No assistant district attorney ever appealed a case he had “won” because he knew Ciavarella’s decision was wrong. No probation officer ever stood up to the judge when Ciavarella dispatched a child away from home for the flimsiest offense.
Together, they embodied the proverbial three monkeys—“see no evil, hear no evil, speak no evil.” In Italy, the phrase refers to omerta, the Mafia code of silence, but in the rest of the Western world the three monkeys embody the acceptance of what is wrong by looking the other way, refusing to acknowledge, or feigning ignorance. They embody the official blink, moral laryngitis, systemic acquiescence.
During his tenure as district attorney between 2000 and 2007, Lupas never set foot in the juvenile court. Not even for a minute. He said he never received a complaint from his subordinates about the judge’s treatment of juveniles. It was Ciavarella’s courtroom, and no one dared to challenge him. The assistant district attorneys who practiced in juvenile court were young, naive, and unseasoned. Many of them were recent law school graduates seeking trial experience. They figured a judge like Ciavarella knew what he was doing, and they had no practical knowledge to counter that impression, and no guidance or supervision from Lupas.
There was a widespread feeling, common throughout the nation, that juvenile court was “kiddie court,” a place where newcomers—prosecutors, defenders, and probation officers—got some trial experience and labored until they were ready for “the big time.” In other counties and other states, the kiddie court mind-set even extended to judges, whose first assignment often was the juvenile court, with the understanding that they would “move up” if they did an acceptable job in this judicial apprenticeship.
Because of these newcomers’ lack of experience and curiosity, no one questioned the fact that an exceptionally large number of kids were showing up in court without lawyers. Pennsylvania’s 1972 Juvenile Act gives children the right to a lawyer from the time their cases begin until the end. Under the Supreme Court’s Rules of Professional Conduct for lawyers, prosecutors are obligated to be certain that juvenile offenders understand the implications of waiving their right to counsel. Yet in Luzerne County more than half of all children did not have a lawyer. How unusual is this? During the same period, George D. Mosee was head of the juvenile division of the Philadelphia district attorney’s office, overseeing the prosecutions of some 10,000 juveniles a year. He never prosecuted a single child who didn’t have an attorney. Most juvenile judges in Pennsylvania believe that children charged as delinquents should be provided with continuous legal representation throughout the delinquency process. Judge Dwayne Woodruff, who has been a juvenile court judge in Allegheny County (Pittsburgh) since 2006, said the question of a waiver is never raised in his court. “Every juvenile has an attorney. Period.” As a juvenile judge for twenty-one years in York County, John C. Uhler had some 20,000 young people charged with delinquency appear before him: “Every one of them had an attorney.”
The restrictions on waiving counsel in Pennsylvania got even tighter on October 1, 2005, when the Supreme Court’s new Rules of Juvenile Court Procedure took effect. The biggest change was Rule 152, which required that judges conduct a question-and-answer session—called a colloquy—with juveniles in open court to be sure that the young person is “knowingly, intelligently, and voluntarily” waiving the assistance of an attorney. Even when a waiver is permitted, the colloquy procedure must be repeated in every succeeding court appearance. Another major change was that only the child, not his parent or guardian, could relinquish legal representation. In sixty-six of Pennsylvania’s sixty-seven counties, the change had a dramatic effect, cutting the number of waivers in half, from 8 percent to 4 percent of all juvenile cases. But in Luzerne County, little changed because Ciavarella—as well as the prosecutors and probation officers—ignored the rules. Over 50 percent of the children who came before Ciavarella had no legal representation.
Probation officers, who are employees of the court, advised juveniles either that they would not need an attorney or that they would fare better under Ciavarella without one. Ciavarella also manipulated the system by ordering the Juvenile Probation Department to set up tables outside
the courtroom. Here youths or their parents arriving for hearings would routinely be asked to sign waiver forms. Often they were told they had to sign it, and many times they had no idea what they were signing. Ciavarella also pressured probation officers to recommend detention when the sentence was plainly incorrect. Ciavarella orchestrated a kind of festival of injustice, and everyone went along with it, murmuring Nuremberg-type rationalizations.
In affirming Ciavarella’s demands that they ask juveniles to waive their right to counsel, and in doing this outside the courtroom, the probation officers violated basic legal requirements and rules of procedure. The result was that an extraordinary number of children, perhaps 2,500, were forced to navigate through the legal system by themselves, often with drastic results. Social scientists say that most teenagers are not able to make intelligent decisions about legal matters. For many years the American Bar Association has recommended a flat prohibition on allowing young people to waive their right to a lawyer. The MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice concluded that adolescents are far less likely to make a decision that takes into account its risks and long-range consequences. It is clear that in most cases, neither the juveniles nor their parents knew what they were signing when they stepped off the elevator before entering Ciavarella’s courtroom.
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