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Complicity and Knowledge
Monday, March 30th, 2009
Robert Wechsler
Last month, I wrote
about the responsibility of lawyers and other professionals for doing
something about the deeply unethical conduct of two judges in
Pennsylvania who unjustly, and to their own financial benefit,
incarcerated hundreds of juveniles.
A few days ago, the New York Times ran a follow-up article on this. It showed how easily lawyers and others can be intimidated into silence, no matter how horrible the circumstances.
In other words, most people are still too intimidated to speak openly about what occurred.
The county commissioners took no action.
How do you stop something like this? You approach judicial and law enforcement officials, and if not even an investigation is ordered, then you go public. The best way to do this is not to go it alone, but from the beginning band together with other lawyers, probation officers, court and other officials. The more people you have, the more credible your story and the less anyone will think intimidation can work. The county controller made a mistake by working alone, leaking the state audit.
By the way, the state audit was completed early in 2007. It found the juvenile detention center to have made excessive profits, and that there were serious problems with a 2005 lease of the center to Luzerne County. Here's how the center's attorney responded (the first paragraph of the introduction to his response):
In other words, we're going to stretch this process out as long as we can by denying everything the state has discovered about our client. We'll even take the philosophical high road, making a horrifying scheme the moral equivalent of an auditor's findings.
Seventy juveniles are suing the judges, according to another Times article. It's too bad they can't sue everyone else involved. What incentive do officers of the court (that is, lawyers) and court officials have to see justice done?
This is why the City Ethics Model Code has a complicity and knowledge provision. This is not a popular provision (the problems with it are discussed and countered in the comments to the provision). But it is definitely worthy of consideration. Otherwise, those who tempt officials and those whom officials who help those acting unethically, or let it happen, will feel, and be able to argue, that they are doing nothing wrong.
Robert Wechsler
Director of Research-Retired, City Ethics
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A few days ago, the New York Times ran a follow-up article on this. It showed how easily lawyers and others can be intimidated into silence, no matter how horrible the circumstances.
Things were different in the Luzerne
County juvenile courtroom, and
everyone knew it. Proceedings on average took less than two minutes.
... Lawyers told families not to bother hiring them.
They would not be allowed to speak anyway. ...
“They were unstoppable,” said Judge Chester B. Muroski, who sent a letter to county commissioners raising concerns about detention costs, only to be transferred days later to another court by Judge Conahan. “I knew something was wrong, but they silenced all dissent.”
Other dissenters were also steamrolled.
When the county controller, Steve Flood, leaked a state audit that described the state’s lease of the center as a “bad deal,” the center’s owner filed a “trade secrets” lawsuit against Mr. Flood, and Judge Conahan sealed the suit to limit other documents’ getting out. His decision was later overturned.
“Everyone began to assume
that the judges had some vested interest in the private center because
they were pushing it so doggedly,” one courthouse worker said.
Virtually all former colleagues and courthouse workers would not allow
themselves to be identified because the federal investigation into the
kickback scheme was continuing and they feared for their jobs if they
alienated former allies of the judges.
In other words, most people are still too intimidated to speak openly about what occurred.
The few officials who had concerns at
the time say their hands were
tied. Probation officers say they suspected that something was amiss
but were overruled every time they requested lighter sentences or for
sentences to be served at home. County commissioners were the only ones
authorized to sign contracts for detention centers. But by eliminating
money for the county center, Judge Conahan left them little alternative
but to sign on to the deal for the private facility.
The county commissioners took no action.
“We did what we could to stop it,” said
Commissioner Stephen A. Urban,
who repeatedly argued that the county should build its own center
rather than lease the private one. “There were so many red flags that
no one could mistake them as any other color.”
How do you stop something like this? You approach judicial and law enforcement officials, and if not even an investigation is ordered, then you go public. The best way to do this is not to go it alone, but from the beginning band together with other lawyers, probation officers, court and other officials. The more people you have, the more credible your story and the less anyone will think intimidation can work. The county controller made a mistake by working alone, leaking the state audit.
By the way, the state audit was completed early in 2007. It found the juvenile detention center to have made excessive profits, and that there were serious problems with a 2005 lease of the center to Luzerne County. Here's how the center's attorney responded (the first paragraph of the introduction to his response):
As noted above, the saga of the audit
process by BFO [Bureau of Financial Operations of the PA Dept. of
Public Welfare] has been fraught with dispute and controversy from the
outset. It is PACC's position that much of this conflict has resulted
from mistaken stances taken at the outset of the process and the
refusal to adjust those stances through negotiation. As the parties
have grown rooted in steadfast and adverse positions, the ability to
listen, the ability to communicate and to objectively reflect has been
lost. Such a scenario usually results in the dedication of an
inordinate amount of resources to conflict rather than resolving the
initial misunderstanding. Former Israeli Army General Moshe Dayan once
said "If you want to make peace, you don't talk to your friends, you
talk to your enemies." The Greek philosopher Aristophanes stated: "A
man can learn wisdom even from a foe." It is respectfully suggested
that the issues separating the parties herein can be resolved if both
sides heed this sage advice.
In other words, we're going to stretch this process out as long as we can by denying everything the state has discovered about our client. We'll even take the philosophical high road, making a horrifying scheme the moral equivalent of an auditor's findings.
Seventy juveniles are suing the judges, according to another Times article. It's too bad they can't sue everyone else involved. What incentive do officers of the court (that is, lawyers) and court officials have to see justice done?
This is why the City Ethics Model Code has a complicity and knowledge provision. This is not a popular provision (the problems with it are discussed and countered in the comments to the provision). But it is definitely worthy of consideration. Otherwise, those who tempt officials and those whom officials who help those acting unethically, or let it happen, will feel, and be able to argue, that they are doing nothing wrong.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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