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NTERBRANCH
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OMMISSION
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J
UVENILE
 J
USTICE
MAY 2010
R
 
 porReport 
 
e Role of the District Attorney 
e district attorney of Luzerne County during the periodwhen Michael Conahan and Mark Ciavarella controlled thecourthouse was
 David W. Lupas
. Lupas took office in 2000and served as the county's prosecutor through 2007.Now a judge of the Court of Common Pleas, Lupas presidesin juvenile court, having replaced Ciavarella in that role inMay 2008. Lupas has instituted reforms which includeensuring that juveniles and their parents are properly advised of the right to counsel. He also refuses to entertainadjudicatory recommendations from the Juvenile ProbationDepartment prior to hearings, which was a regular practiceof Ciavarella's.District attorneys - in fact, all prosecutors - have a uniqueethical obligation among lawyers. While private lawyers arebound by strict duties to their clients, prosecutors have abroader responsibility - one that extends to all citizens andto society as a whole.As explained in the Code of Professional Responsibility, theethical rules governing lawyer conduct in Pennsylvania: "Aprosecutor has the responsibility of a minister of justice andnot simply that of an advocate. is responsibility carrieswith it speci󿬁c obligations to see that the defendant isaccorded procedural justice and that guilt is decided uponthe basis of sufficient evidence."e "special responsibilities of prosecutors" under theCode of Professional Responsibility include a requirementthat prosecutors:"Make reasonable efforts to assure that the accused has beenadvised of the right to, and the procedure for, obtainingcounsel and has been given reasonable opportunity toobtain counsel."In his testimony to the commission, President JudgeMuroski, a former district attorney of Luzerne County,commented on the role of a judge as compared to that of adistrict attorney:"Let me take you back to something I was asked many,many years ago when I became a judge," Muroski said. "Iwas asked, you know, which job did you prefer? What'sdifferent about your jobs being DA or being a judge? And Iwould say that being a DA was probably the most difficult job because you had to be fair, and you had to win. Now, Ionly have to be fair."David Lupas, in his testimony to the commission, said juvenile court did not get a great deal of his attention whenhe was district attorney. Asked if there was an attitudeamong prosecutors that juvenile court was a "kiddie court,"or a less important court than adult courts, Lupas replied:"I don't know if it was [a] lesser court. It may have -- theremay have been some of those attitudes. Unfortunately, I seesome of those -- I still see some of those attitudes today as a judge…there are limited resources…there, I guess, aretimes, because of lack of resources, that it maybe didn't getthe priority maybe that it should have."Lupas said he assigned speci󿬁c assistant district attorneyson his staff of 20 to 25 prosecutors to juvenile court so thatindividuals could specialize to some degree in the rules andprocedures there. Direct supervision of those assistants, andall assistants, was by Lupas personally and by his 󿬁rstassistant, Jacqueline Musto Carroll, who now is the LuzerneCounty district attorney."ose attorneys [assigned to juvenile court] would beconsulted with on a periodic basis. How are things going?Any issues, any concerns, any problems in juvenile court?We would have periodic staff meetings with the entire staff of Assistant District Attorneys. Again, ask whether there areany issues or any problems or any concerns going on in juvenile court. And, you know, we really -- I didn't get any feedback that there were concerns or problems, justeverything was going well."Lupas said Ciavarella's zero-tolerance policy was well-known, reported in the newspapers, spoken of in thecommunity and discussed among school officials."Again, it was known that there were a lot of placements.at was made known. But, you know, the other concernsthat I know have been raised about waiver of counsel andthings such as that were never brought to my attention by any of the assistants."Never had any of them come to me and say, we think the judge is engaged in criminal activity, or we think there'ssomething going wrong here. None of that ever occurred."Lupas said it was not until a󰀀er the "kids for cash" scandalerupted that he became aware of a controversy involvingCiavarella failing to properly advise juvenile defendants of the right to counsel."It was always my understanding and belief that there wasan assistant public defender assigned to juveniledelinquency court and present at all proceedings that Iassumed would have been representing the vast majority of these juveniles. And I was quite surprised when it surfacedand came out that so many were waiving counsel."
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His assistants did not bring it to his attention. Hiscounterpart, the public defender, did not mention it.No private defense lawyer complained to him that theconstitutional rights of juveniles were routinely being violated.If he had received complaints from his assistants thatconstitutional rights were being violated, Lupas said, hewould have taken action - but no one complained.Lupas noted that Ciavarella used a written "colloquy" -which juvenile defendants 󿬁lled out with the assistance of probation officers before court hearings - to waive the rightto counsel.Because of the written colloquy, he said, "I believe the ADAsprobably assumed that the juveniles appearing were madeaware of their right to counsel and were waiving it. Albeitthe judge wasn't abiding by the rules by giving the on therecord colloquy, but there was this written document thatwas being utilized."I can't speak for whether they felt that that sufficed or not.You'd have to ask those particular people who were in thatcourtroom at the time."With regard to the special duties of a prosecutor spelled outin the Code of Professional Responsibility, Lupas said of hisassistants: "ey were instructed and advised and expectedto always abide by those professional responsibilities.""I -- again, and a lot of what I'm doing here unfortunately isspeculating trying to put myself in the mind of those partieswho were in that courtroom," Lupas said. "But I -- I think that was the atmosphere, that -- that it was a very strong-minded judge who ran things his way. And over time thatatmosphere was created where he was -- he was going torun things his way."Two assistant district attorneys who were assigned to juvenile court while Lupas headed the prosecutor's officetesti󿬁ed before the commission. Both said it was Ciavarella'spractice to have the Juvenile Probation Department presenta written waiver form to youths who opted to appear incourt without lawyers. e forms were signed prior tocourt hearings. It was not Ciavarella's practice to conductcolloquies in open court. e assistant prosecutors did notobject because they assumed the written waiver, and the judge's method, was acceptable.
omas J. Killino
 began work in the District Attorney'sOffice in 2004 as a young lawyer seeking to gain trialexperience. As a newcomer to the office, he was assigned to"shadow" more experienced prosecutors to learn the ropesin various assignments. In 2005, he began covering anassignment in juvenile court, replacing another prosecutorwho was reassigned to adult court.Juvenile court was a busy venue. Sessions were held onTuesdays for adjudications and ursdays for review hearings. Typically, more than 20 hearings a day werescheduled. Cases moved at a fast pace. Killino told hissuperiors he thought more than one prosecutor was needed.He said he received some back-up support.Asked if juvenile court was considered a high priority by theprosecutor's office, Killino replied:"It certainly didn't appear to be No. 1 on the list of thingsgoing on to be very honest with you."e District Attorney's Office kept no records of the kindsof dispositions that occurred in juvenile court. ere was no󿬁ling system to enable a prosecutor to review a case in thefuture and look back at how well or poorly a juvenile hadadvanced from the point of disposition.Killino con󿬁rmed what Lupas had said concerning waiverof counsel. "ere was an accepted practice in place with thewaivers. at was something that the court accepted andutilized." Killino didn't know who provided waiver forms to juvenile defendants. e procedure normally was completedin advance of court hearings. No one challenged it. It wasaccepted by prosecutors and defense lawyers alike. Killinoobserved other prosecutors accepting the procedure. Heaccepted it as well.Killino said he did raise one concern with his superiors:Case lists distributed in the courtroom by the JuvenileProbation Department included handwritten notationsrecommending placement facilities for some of the juvenileson the list.He said Ciavarella usually had a folder of informationabout each juvenile defendant and referred to it during thecase disposition.Asked if he was troubled by the fact that Ciavarella did notconduct guilty plea colloquies with youth defendants as isdone in adult court, Killino replied:"Well, again, I came into a very fast paced environment. Iobserved my colleagues handle that environment in thesame way as I came to handle it. And, again, it was anestablished practice by the court. And the trust factor wasthere that if the court is satis󿬁ed in proceeding in thatmanner that was the manner it proceeded."
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