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Pa. Supreme Court in 'sad state' as scandals tarnish reputation

| Saturday, Oct. 25, 2014, 10:20 p.m.
Pennsylvania Supreme Court members in December 2013: Front row, from left: Justice Thomas G. Saylor, Chief Justice Ronald D. Castille, Justice J. Michael Eakin.  Back row, from left: Justice Seamus P. McCaffrey, Justice Max Baer, Justice Debra McCloskey Todd, Justice Correale F. Stevens
State of Pennsylvania
Pennsylvania Supreme Court members in December 2013: Front row, from left: Justice Thomas G. Saylor, Chief Justice Ronald D. Castille, Justice J. Michael Eakin. Back row, from left: Justice Seamus P. McCaffrey, Justice Max Baer, Justice Debra McCloskey Todd, Justice Correale F. Stevens
Law professor Geoffrey Hazard
Law professor Geoffrey Hazard

HARRISBURG — Rocked by a pornography scandal involving two justices, internal acrimony, and the felony conviction last year of a self-proclaimed reformer on the bench, the Pennsylvania Supreme Court's reputation nationally is badly bruised, legal ethics and political experts say.

“What a mess,” said Geoffrey Hazard, professor emeritus at the University of Pennsylvania now living in San Francisco and teaching at the University of California Hastings College of Law.

Hazard, who co-authored a textbook on professional responsibility and is considered one of the top legal ethics experts in the country, keeps tabs on Pennsylvania's court.

Problems with justices happen in other states, but Hazard said he finds “astonishing” the allegations that suspended Justice Seamus McCaffery transmitted pornographic emails, intervened for his wife with a traffic ticket, and perhaps authorized his wife — a lawyer and court employee — to accept hundreds of thousands of dollars from law firms in referral fees.

McCaffery has said through a spokesman that he is confident he'll be cleared of wrongdoing and return to the bench of the nation's oldest appellate court.

Deborah Rhode, a scholar on legal ethics at Stanford University, said she is unaware of a court elsewhere in the nation that has faced these problems. Most judges abide by ethical rules, she said.

“We hold judges to higher standards,” she said. “Most have the judicial temperament to adhere to the rules. Every once in a while, you find some going rogue.”

Minor infractions typically stem from “a sense of entitlement,” Rhode said.

McCaffery's suspension last week raises the possibility of a deadlocked court in a closely decided case among the six remaining justices, said Kyle Kopko, a political science professor at Elizabethtown College.

With Chief Justice Ronald Castille's mandatory retirement at age 70 on Dec. 31, the court's number could drop to five, depending on what happens with McCaffery, said Lynn Marks of Pennsylvanians for Modern Courts, a reform group.

“You've got to wonder what is getting done,” said Marks. “What's going to happen to cases that have already been argued? The operations of the court I'm concerned with involve real people.”

Porn and corruption

Back-to-back scandals involving Pennsylvania justices “tarnish the court's reputation nationally,” said J. Wesley Leckrone, a political science professor at Widener University in Chester.

A jury convicted former Justice Joan Orie Melvin of Marshall last year of using public resources for campaigns. She recently appealed her convictions on theft and other charges to her former colleagues on the Supreme Court. Her sentence of three years of house arrest is on hold.

Melvin, who campaigned to shake up the high court and “the stealth nature of the judiciary,” resigned on her conviction.

Robert Davis, former president of the National Organization of Bar Counsel, a group of lawyers who prosecute unethical conduct by other lawyers and judges, said, “This particular combination (porn and corruption) is unique.”

The way to address it is “an objective review of every allegation against every justice,” said Davis, who had been disciplinary counsel in Pennsylvania and West Virginia.

Justice J. Michael Eakin was implicated in the porn scandal for having received emails in a private account set up under a fictitious name. Eakin said he never opened them. When the Philadelphia Daily News published a story, Eakin asked the Judicial Conduct Board to investigate and, in a highly unusual move, accused McCaffery of threatening to disclose Eakin's emails if Eakin did not persuade Castille to drop McCaffery's pending suspension.

McCaffery has denied Eakin's account of their conversation.

Castille said McCaffery's conduct brought the court into “enormous disrepute.” The two Philadelphians — Castille a Republican, McCaffery a Democrat — long have feuded. McCaffery's spokesman has blamed Castille's “malicious intent” for the move to oust him.

Even the decision to suspend McCaffery drew controversy. Justice Debra Todd voted against the suspension because the court majority ignored its disciplinary procedures in bypassing the Judicial Conduct Board.

“Every day, this court is charged with according due process to litigants, and we faithfully carry out that constitutional obligation,” Todd wrote. “Even a justice is entitled to due process.”

All of this has “attracted the attention of legal observers outside of Pennsylvania,” said Kopko.

Earlier problems

The Pennsylvania Supreme Court came under scrutiny for its initial handling of the so-called “Kids for Cash” case in which two Luzerne County judges took $2.6 million in kickbacks from the builder of two private detention centers and imposed harsh discipline that sent kids to the facilities.

The Juvenile Law Center in Philadelphia in April 2008 asked the court to intervene and vacate the delinquencies, a petition the court denied on Jan. 8, 2009. But on Jan. 29, following federal criminal charges, the high court granted relief. Within months, it expunged records of all youths who came before the corrupt judges.

One judge pleaded guilty to racketeering conspiracy; a jury convicted the other of 12 counts.

“A lot of people thought (the justices) should have acted sooner,” said Marks. “I will say, when they did get interested ... they acted very strongly.”

Melvin's conviction was the worst scandal for the court since 1994 when a former justice, the late Rolf Larsen, was convicted of conspiracy in connection with illegally obtaining prescription tranquilizers. The state House impeached Larsen when the Senate, acting as a jury, convicted him on one count: improper contact with an attorney.

But the porn scandal, and the public accusations traded among justices, has legal professionals buzzing.

“They have hurt the perception, and that's wrong. They know better, and that's a tragedy,” said attorney Sam Stretton of West Chester, who has represented lawyers and judges. “It's a very sad state in Pennsylvania.”

In the emails that Attorney General Kathleen Kane released to Castille, McCaffery received images that demeaned women, the elderly, and uniformed schoolgirls and forwarded many to the attorney general's office in 2008 and 2009, the court said in its suspension order.

Marks' group pushes “merit selection,” or appointment, rather than election of judges. Others say appointed judges would not solve problems.

Some analysts believe that debate will rekindle, though the state Legislature for decades has refused to seriously consider it.

Pennsylvania is one of six states — with Alabama, Louisiana, Texas, West Virginia and Illinois — where voters elect local and statewide judges.

The public “generally places more trust and confidence in the judiciary, compared with the other branches of government,” Kopko said. “I suspect that any confidence lost in the court will be

restored in due time.”

Trouble not unique

Judges from the bottom to top rungs have faced their share of trouble in other states:

• An Oklahoma judge was sentenced to four years in prison in 2005 for masturbating beneath his robe during court sessions, and he exposed himself.

• A Wisconsin Supreme Court justice was accused of an ethical breach for grabbing a female justice's neck in 2011.

• An Erie district justice violated ethical standards for making phone calls to women that the Judicial Conduct Board found akin to stalking.

And not all judges in trouble for behavior sit on state courts.

In 2010, Thomas Porteus became the eighth federal judge to be removed from office by the Senate, accused of taking cash and favors from lawyers who dealt with him.

Mark Yochum, a Duquesne University law school professor, differs from some experts in that he thinks the controversies in Pennsylvania will have minimal impact on how the state's courts are perceived elsewhere.

“Nationwide, people don't care. In Pennsylvania, people care,” Yochum said.

Yochum does not believe the justices care a great deal about the court's reputation suffering nationally.

“The Legislature isn't going to impeach them,” he said. “Most are at an age where they won't stand for retention (election).”

Brad Bumsted is Trib Total Media's

state Capitol reporter. Reach him at 717-

787-1405 or bbumsted@tribweb.com.

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