Behind the scenes, Common Pleas Court Judge George J. Ivins privately agrees to take a case from a defense lawyer who is a longtime friend - and then sentences the lawyer's client, convicted of killing a young nurse in a car crash, to probation.
In another courtroom, on another day, Municipal Court Judge Joseph P. McCabe reduces bail for a murder defendant - without legal authority and without informing the prosecutor.
In yet another courtroom, Common Pleas Court Judge Lisa A. Richette sentences a convicted killer to prison - and then, after the victim's gratified family has left the scene, changes the sentence to probation.
In a fourth courtroom, Municipal Court Judge Arthur S. Kafrissen gets up
from the bench at 10:45 a.m. and walks out for the day, leaving behind baffled witnesses, police officers and lawyers. In the words of Clifford Williams, a disgusted witness, it was "complete chaos. "
Day by day, this is the Philadelphia court system, where many judges and lawyers freely admit that, all too often, what is delivered is anything but justice.
It is a system in which many defense lawyers help finance judges' campaigns - and then try criminal cases before those judges. It is a system in which those same lawyers have remarkable success, with statistics showing that in Municipal Court, from 1979 to 1984, defense lawyers who had a role in judges' campaigns won 71 percent of their cases before those judges. By contrast, during the same years, only 35 percent of all Municipal Court defendants won their cases.
It is a system in which witnesses are sent to the wrong places by incorrect subpoenas, and in which a judge dismisses a case because a witness isn't in the right courtroom.
It is a system in which defense lawyers get convictions overturned on the ground of their own incompetence by claiming they made errors that would shock a first-year law student.
It is a system in which the amount of money awarded in civil verdicts has skyrocketed and in which a person can win $143,500 for a broken toe suffered on the job.
It is a system in which hallways smell of urine, benches are carved with graffiti and stairways are missing railings.
And it is a system in which many judges feel overwhelmed, bereft of hope for improvement and wistful for other employment.
"I feel I am in the middle of a morass and it's getting worse. . . ." said Common Pleas Court Judge Francis A. Biunno. "I always walk around with the feeling 'I don't know what I'm doing.' . . . And I have been at this for 11 years. "
After an exasperating day on the bench, Theodore A. McKee - one of the system's youngest and most idealistic judges - mused, "If I could make a living tooling leather or doing woodwork or teaching karate, I'd do it."
*
In a two-year investigation of Philadelphia's Municipal and Common Pleas Courts, The Inquirer interviewed more than 200 lawyers and judges. Many raised serious questions about the health of justice in America's fourth-largest city.
In addition, reporters pored over thousands of pages of court records, studied verdicts in tens of thousands of criminal and civil cases in Common Pleas Court over seven years, conducted computerized analyses of close to 5,000 judicial-campaign contributions and examined internal memos from several court agencies.
What The Inquirer examination found was a court system that is successfully functioning in many basic ways - despite an antiquated physical plant and a burdensome work overload. But at the same time, it is a system that has come to accept almost as routine a number of practices that on the face appear unethical, secretive or unfair to crime victims, witnesses and the public.
Among The Inquirer's findings:
* Court records show that judges have made crucial decisions - such as deciding to take a particular case or determining the length of a sentence - after private conversations with one side's lawyers. Some judges seemed to care little about the appearance of such contacts. Asked whether a prosecutor should have been present when the judge and a defense lawyer discussed reducing a sentence, Common Pleas Court Judge Bernard J. Avellino said, "I don't give a f- whether he's there or not."
* In some cases, judges have helped effect the release of dangerous criminals by changing sentences and reducing bail without informing the prosecutor - although law requires that a prosecutor be present for such actions. Some of those aided by the improper actions of judges were not petty criminals or first offenders: two were part of a group that police blame for five slayings in a war for the city's cocaine trade.
* Judges are elected, but their ability to win is not determined on the basis of merit or court experience. Judges and lawyers say that the large majority of candidates are elected on the basis of political or personal connections, ethnic background and money. When asked about his qualifications to become a judge, Common Pleas Court Judge Angelo A. Guarino put it this way: ''There was a need for a guy like me to satisfy the party's needs at that time. Geographically I was well placed, and ethnically I was well placed. So they came. " Judges and lawyers say also that local ward leaders have the biggest say in who gets elected and who does not. Common Pleas Court Judge James D. McCrudden bluntly described the burden of judicial candidates: "They have to bribe ward leaders."
* To finance this political support it is common for judicial candidates to accept hundreds and sometimes thousands of dollars in campaign contributions
from lawyers who later practice before them. Records show dozens of instances in which, within months of election, judges have presided over cases involving lawyers who had donated to their campaigns. In more than a dozen instances, judges heard cases from lawyers who had served on their campaign committees, including some who had acted as committee chairman or treasurer. Judges rarely disclosed those political ties in court.
* In the courts' day-to-day administration, examples of nepotism and political patronage are rife. On a $55 million payroll that officials refuse to make public, at least 30 of the 120 Municipal and Common Pleas Court judges have relatives in court jobs. Other jobs go to kin of court administrators, ward leaders and elected officials - including relatives of City Council members who vote on the court's budget. None of this seems to trouble those in charge. Says Chief Deputy Court Administrator A. Joseph Teti: ''I'm just sorry I can't get more of my family members on the court. " He already has four.
* The routine workings of the system are beset by delays that cause enormous inconveniences to witnesses and jurors and result in hours or days of wasted time in the courtroom. Some judges estimate that they have spent as much as 25 percent of their courtroom hours in so-called "down time" - waiting for cases to be ready.
All in all, some of Philadelphia's most respected lawyers say, the Philadelphia court system is in a state of serious disrepair.
Stanford Shmukler, a criminal lawyer, said of the Common Pleas bench: "We do not have the highest-quality judiciary. . . . It has become a haven in many instances for political hacks. "
In 1983, Marshall Bernstein, a well-known and highly regarded plaintiff attorney, called the Common Pleas civil system "a mess. It's a galloping nightmare. " Now, Bernstein says, the court is striving to dispose of old cases and is having some success. But he adds: "We're still way, way behind. . . . There are still massive delays. "
Said Common Pleas Court Judge Marvin Halbert: "Everything falls behind. . . . It's like p-ing in the ocean. . . . Am I deterring? Am I rehabilitating? Have I in any respect rehabilitated anyone? The only thing I know, I'm warehousing them. And I wonder: 'What am I doing? ' "
In the last few years, there have been improvements in the Philadelphia courts. Disposition rates are up in both the criminal and civil programs. And Common Pleas Court President Judge Edward J. Bradley was praised for his January 1984 appointment of highly respected Common Pleas Court Senior Judge Harry A. Takiff as the court's administrator.
Several programs in the court system have received nationwide attention. One is an arbitration program for the disposing of minor civil cases. The other is the court's felony waiver program, in which routine criminal cases are heard by judges without juries. These programs together account for the disposition of well over half the cases in the system.
But judges themselves warn against measuring the quality of the system by how many cases can be pushed through it.
"If you think this system can be called successful in its broadest sense, then you and I don't think alike," said Common Pleas Court Judge Kenneth S. Harris. "They will tell you it's better. They will tell you it's getting better because it's providing for more people on a given day. Query: Are you providing better justice for these people? "
Too often, says former District Attorney Edward G. Rendell, that justice is tainted by factors outside the courtroom - a private conversation, a friendly relationship, a political tie. Says Rendell: "There is infinitely too much screwing around with cases in City Hall. "
A DAY WHEN JUSTICE IS STUCK ON HOLD
On a hot July morning, Judge McKee walked to the tiny chambers next to Courtroom 269 in City Hall. Ignoring the roar of the ancient air conditioner and the vibrations from the subway, oblivious to the scattered black smudges on the bright baby-blue walls, he hung up his suit coat and quietly buttoned his black judicial robe.
At 9:30 a.m., minutes before court was to open, McKee's court stenographer came into chambers with an urgent message: Somebody was coming to fix the emergency phone. Each courtroom has an emergency phone in the event of a serious problem, such as a judge's getting assaulted.
"Your emergency phone isn't working," the stenographer said.
"It hasn't worked since Jan. 2," McKee replied.
Moments later, McKee took the bench in Common Pleas Court, ready to dispense the day's justice. As it turned out, he spent the day juggling, cajoling, patching up one problem here, one problem there - all in the hope of trying at least one of the cases listed before him.
He would succeed in nothing.
Commonwealth vs. Anthony Crawford: Postponed. Officials had forgotten to transport Crawford from the detention center to the courthouse. Commonwealth vs. Belinda McNeil: Postponed. McNeil never showed up. Commonwealth vs. Charles Guess: Sent to another judge after McKee, during a pretrial conference, heard prejudicial evidence that forced him to remove himself from the case. Sentencing in Commonwealth vs. Russell Bennett: Postponed because of a discrepancy in Bennett's prior record. Commonwealth vs. John Gingrich: The case actually started, but the judge had to stop it when various factual issues could not be readily resolved.
The day ended as it had begun for Judge McKee: The five cases on his list remained pending.
"This," McKee said at one point, speaking to a once-packed courtroom that was now deserted, "is an absolute and total breakdown of the system. "
ONE JUDGE'S QUEST FOR A FEW GOOD JURORS
In Courtroom 315, Common Pleas Court Judge Victor J. DiNubile Jr. tries to get a panel of prospective jurors so he can begin a trial. Few needs in the court system are so basic as assembling a jury. But the judge gets this response from the court administration: There are no prospective jurors left,
because the court system has run out of them. The case will have to wait.
The next day, DiNubile tries to get a jury panel. He is told that, like an airplane on the runway, he is number nine in line.
An hour later, DiNubile negotiates with Jury Commissioner Nicholas Kozay Jr., sounding a little like a customer hoping to squeeze a break from a salesman.
"I start early. Does that count for anything? " DiNubile asks Kozay. ''I'll take anything you give me. Normally I take 40 (potential jurors). I'll take 30. I'll take anything. "
The next day, DiNubile gets 34 prospective jurors, and a jury of six men and six women is selected by 12:45 p.m. Then, after lunch, the defendant elects to waive a jury and have his case heard only by a judge. The jury panel DiNubile has fought so hard to get is dismissed.
Says DiNubile: "There are days when I figure, 'What am I doing? What am I doing here? ' "
DiNubile's father was a Common Pleas Court judge. Much to DiNubile's surprise one day, he saw his father's name on a list of judges taped to the wall of the tiny chambers office in the courtroom.
"It's got my father on it," said DiNubile. "He's been dead for three years. "
HOMICIDE DAY: A WAITING GAME
JOSEPH P. McCABE
By 10 a.m., almost 100 people had gathered in the hallway. You could hear the din of their anxious shuffling as they pressed against one another, not knowing where they would go next, if anywhere. Every few minutes, a court officer stuck his head outside the door and hurried several people inside, as if he were the doorman at some exclusive club.
He looked at a list and yelled out several names. Then his head popped back behind the double doors.
"What's going on?" someone asked.
"Twenty-one homicide cases," someone else said.
Courtroom 675. Homicide day.
Decisions regarding 21 homicide cases would be made in this Municipal courtroom, and ultimately it would be up to the judge to decide whether the evidence in each case was strong enough to be sent to trial in Common Pleas Court. The room was a whirlwind of snap-second action - testimony, bail hearings, legal arguments. In one courtroom with one judge.
The defense lawyers sat in the jury box of Courtroom 675 like aging lions, slouched in wooden chairs and wearing their flappy raincoats, talking to one another in whispers, watching the proceedings with what many of them would call cynical disdain.
The judge in the courtroom that day, Joseph McCabe, a jowly, unsmiling man with an enormous bow tie sticking out from under his black robe, made it clear that no matter how many of these 21 homicide preliminary hearings got finished, win, lose, or draw, he was leaving the bench well before 5 p.m.
"We're not working beyond 2:30," he told an assistant district attorney. ''If they overload the room, that's not my problem. "
McCabe later explained that it was his standard procedure to hear cases for about five hours a day and return to his chambers to attend to paper work. Beyond such a time limit in the courtroom, he said, his temper could unravel with little provocation.
"You're faced with burnout," he said. "How much can you take, and really do justice? "
The double doors opened. More people came in and took seats under the bright, hot lights that made everyone look pale and timid. The double doors opened. More people left. The double doors opened. Lawyers dressed in fur- trimmed wool coats marched in, talked to other lawyers and then walked out. The double doors opened. Defendants came in, peered around for the lawyers in the fur-trimmed coats who had marched in and marched out, and then they marched out, too. The double doors opened. A policeman in a shiny leather coat stuck his head through to see what was going on and then popped it back out. The double doors closed.
Harry Seay, a veteran criminal attorney, was among the waiting lawyers. After 3 1/2 hours, he said: "Isn't this ridiculous! "
A defense lawyer named Daniel M. Preminger requested $25,000 bail for his client. The assistant district attorney argued for much higher. It went back and forth.
"What do you think this is, a tennis court? " McCabe finally snapped. ''Every time I get a minute to think, someone thinks that's an occasion to make a speech. " He set bail at $75,000. That ended court for the day.
Hearings were held in eight of the 21 cases scheduled for his courtroom that day, McCabe later said. Some of them did not go on because the prosecution wasn't ready. Or because a defense attorney was trying a case in another courtroom. One case was ready for a hearing, but McCabe did not get to it.
In the meantime, numerous witnesses who had been subpoenaed never had the opportunity to say a single word and would have to return some other day. As for criminal lawyer Seay, he ended up sitting there without doing a single thing.
A few minutes after 2:30 p.m., McCabe adjourned Courtroom 675 for the day.
FOR ONE WITNESS, EIGHT WASTED MORNINGS
In a third-floor hallway, Michelle Swanson, a witness in a case, talked of the fear and dread of coming to City Hall to testify against her ex-husband in an assault case in which he had allegedly brandished a gun.
She already had come to City Hall eight times, arriving as early as 8 in the morning, and waiting in court until 10:30 or 11 a.m. until being informed each time that the case had been postponed.
"I said I wouldn't come today," she explained. "I said (to her current husband), 'I'm not coming. ' I've had it. He (the defendant) can postpone it, but I can't change my mind. Why can't I say, 'I don't want to come, let the son of a bitch stay in jail another month?' . . .
"Why can't they be more lenient with the witnesses and the people who go through this stuff?
"A lot of times I didn't want to be here because of the emotional stress. I hoped I would never have to look at that face again. I have nightmares about it. "
IN MIDDLE OF A CASE, THE JUSGE WALKS OUT
ARTHUR S. KAFRISSEN
Clifford Williams, a witness, was ready to testify at a preliminary hearing in a burglary case before Municipal Court Judge Arthur Kafrissen. He had the familiar witness jitters, not necessarily because of what he was going to say, but because he had just gotten a new job as a plumber and was concerned about missing work. Also, this was the third time he had been in court for the case.
The first witness, flown up from Arkansas at a cost to the prosecution of $620, testified. Then it was Williams' turn. But Kafrissen, according to those present, announced that he had a meeting to attend and left the bench about 10:45 a.m. Several days later, he told another judge that he had left the bench for a medical appointment.
Kafrissen rescheduled the case for two days later, forcing Williams to come to court again. But Williams said in an interview that his subpoena directed him to the wrong courtroom, in a different part of the city.
When he failed to show up in Kafrissen's courtroom, the defendant's lawyer asked that the case be discharged. Kafrissen granted the motion. The assistant district attorney, Wanda Foglia, said she asked the judge to reschedule the case because of the inconvenience Williams had been put through earlier in the week. But Kafrissen refused to change his mind.
Through a spokesman, Kafrissen declined to be interviewed.
"Every time I went down there I was prepared to testify," said Williams. ''I can't keep taking time off from work. I wanted to see justice done, but I can't have it done at my expense. I can't afford it. "
And he, like many others in the courtroom, said he was dumbfounded when Kafrissen walked out in the middle of the case at 10:45 a.m.
"You should have been there," Williams said. "It (was) complete chaos."
*
During the same week, Kafrissen left the bench again in the middle of a case, offering no explanation of where he was going, according to attorneys and witnesses present in the courtroom. During his absence of almost three hours, from 11:15 a.m. to approximately 2 p.m., a defendant in one case and a witness for the commonwealth in another case failed to return. In a third case, an employee with the Philadelphia School District waited in court roughly 6 1/2 hours to give less than five minutes of testimony.
"We're there as commonwealth witnesses to do a job and fulfill our obligations," said the witness, who did not want to be identified, "and it's a little difficult for me to understand how someone who has a job can just say, 'That's it, I'll be back in three hours. ' "
"If he had taken two minutes to talk to that courtroom, you would not have had a courtroom of angry people. I think that's what I was upset with, the lack of consideration. Treat us like human beings. "
PRIVATELY, A WORD IN A FELON'S BEHALF
KENNETH S. HARRIS
Every year in Philadelphia, thousands of witnesses are subpoenaed to appear in court to testify. They must testify, whether they like it or not, whether it might cause discomfort or pain or plain embarrassment. Those are the rules of law.
But Judge Kenneth Harris privately called another judge to avoid the kind of situation that average citizens face every day. In doing so, he avoided what he later acknowledged in an interview would have been the uncomfortable position of having to appear in open court in behalf of a convicted felon.
"Like it or not, nobody wants to be a witness to anything," Harris said.
In 1978, Harris, then a Municipal Court judge, privately called Common Pleas Court Judge Richard B. Klein to ask him to release a man on bail just after the man had been convicted of a shooting in connection with a drug deal.
According to an affidavit from Klein, Harris called and said he could vouch for the defendant, Anthony Devine, and his family because he had known them for a long time. Devine's lawyer was then Judge Harris' law clerk, Hugh Clark.
Klein's affidavit went on: "Judge Harris referred to the case, said it was his law clerk that tried the case, and advised me that he knew the family for a considerable period of time and felt sure that Anthony Devine would return for sentencing. He asked me to review the matter to see if I could set bail at a level that could be made by the Devines. "
Harris made that phone call despite provisions in the the Code of Judicial Conduct that say a judge cannot "lend the prestige of his office to advance the private interests of others. "
In this case, the defendant and his family had a lengthy history of
criminal trouble. Devine's father, James "Sonny" Devan, had been found guilty of heroin-distribution charges in 1971 and sentenced to five years in federal prison.
In 1971, five years before becoming a judge, Harris himself was the lawyer who represented Sonny Devan at trial and was with him in court when he was sentenced.
The man that Judge Harris tried to help in 1978, Anthony "Ookie" Devine, had been convicted by Judge Klein of aggravated assault and a weapons charge for shooting Leroy Coleman over a heroin deal that had gone sour.
Trial testimony showed that Devine, then 19, had shot the man from point- blank range with a .357 magnum. At the time of the shooting, Devine was on probation for conspiracy to rape a 17-year-old girl. As a minor, Devine had been found delinquent for joining in the sawed-off-shotgun robbery of a laundry-truck driver, and for his admitted role, with three other youths, in forcing a 15-year-old boy to submit to anal and oral sodomy.
"All three convictions have involved serious injury or the potential for serious injury," probation-department investigator David Scotkin wrote in Devine's pre-sentence report. "The purpose of these crimes seem to be the benefit of the subject's life at the expense of others. One may conclude that he is becoming increasingly dangerous. "
Klein refused Harris' request to set bail low enough to enable Devine to get out of jail. In an interview, Klein said he found Harris' call to be ''unusual" but not something to get particularly upset over.
Ultimately, he sentenced Devine to 3 1/2 to seven years in prison.
In an interview, Harris said that he had known the Devine family for a decade and that Devine's mother had asked him if he would testify in behalf of her son to help him get out on bail.
"I told her, 'Of course I would,' " Harris said. Instead of testifying under subpoena, however, Harris spoke to Judge Klein privately about the case.
"In viewing it now, I wish the hell I hadn't," the judge said in the interview. "I wish I had appeared pursuant to (a) subpoena and gotten it over with. " No subpoenas were ever issued.
Harris said it had been his impression that Anthony Devine's prior record had involved "minor offenses. " He said he had not been aware that it involved such charges as robbery and rape.
Harris said he did not believe that his knowledge of the father's drug record should have made any difference in vouching for the family to Judge Klein.
"Even though his father was convicted, the fact that a person has been arrested and convicted doesn't mean that it's a basis for denying bail to him or his family," Harris said.
He said he was reluctant to be subpoenaed and appear in open court, however, because of the possible appearance it might give.
After being paroled in 1983, Anthony Devine was indicted by a federal grand jury in February 1984 in connection with a drug-trafficking ring in North Philadelphia. He was convicted last year of two counts of heroin distribution and sentenced to five years in federal prison.
The family's contact with Judge Harris did not end with the judge's phone call to Klein in 1978. The same year, police arrested Anthony Devine on charges of carrying an illegal 9 1/2-inch folding dagger. On Sept. 14, 1978, Harris granted a defense motion to suppress evidence against Devine and found him not guilty.
And in February 1983, Devine's father, James Devan, was arrested for allegedly carrying an unlicensed gun. Despite the fact that Judge Harris had previously served as Devan's attorney, he agreed to free Devan on his own recognizance, with no bail.
That same year, Harris made his second bid for election to a higher court and won. Now he is a Common Pleas Court judge.
TRYING A CASE FOR AN OLD FRIEND
GEORGE J. IVINS
Her name was Karen McNaughton.
She was a nurse, and a wife.
At 10 o'clock on the night of Oct. 21, 1981, she was driving her car on City Avenue to her job at Lankenau Hospital. She had been called in to assist with open-heart surgery.
Out of nowhere, a car sped past other vehices in a terrifying blur. And then it swerved across the double yellow stripes into the wrong lane. There was the horrible scream of tires. And a deafening slam. And other drivers on the road that night knew instantly what had happened.
Karen McNaughton, at the age of 27, was dead, her blue Camaro backed up against a clump of trees, her body crushed and misshapen by the collision.
Her husband, Steven, remembers the uncontrollable grief after it happened. Later, after the case had made its way through the Philadelphia court system, he would feel another emotion: helplessness.
Craig Arno, the 16-year-old who killed Karen McNaughton with his car, was convicted of involuntary manslaughter and vehicular homicide.
When it came time to decide Arno's sentence, Common Pleas Court Judge George J. Ivins heard evidence that Arno had three juvenile criminal adjudications for burglary and theft. In addition, Arno had been stopped for speeding down City Avenue on a motorcycle seven months after the fatal accident. Police had to chase him for nearly three miles to stop him.
Ivins chose not to sentence Arno to jail. Instead, Arno was given five years' probation - and loss of his driver's license.
"You stand there and you see someone you love get mutilated . . . and the person who did it, he walks away," Steven McNaughton said later. "You put all the facts on the scales of justice, and he walks away. "
But there was more to this case than what occurred in the courtroom. Judges are supposed to be assigned cases at random, to avoid any hint of impropriety, any suggestion that either side is able to pick the judge it wants. The Arno case had not been randomly assigned to Judge Ivins.
Instead, court records show, Ivins agreed to take the case after receiving a phone call from Arno's attorney, F. Emmett Fitzpatrick. Fitzpatrick, the former Philadelphia district attorney and a friend of Ivins', privately asked Ivins to take the case.
Before the case went to trial, two members of the district attorney's office agreed in private to let Ivins take the case. But both the victim's husband and mother say they were never told about the arrangement. And, they say, if they had known about it, they would have asked for another judge.
Karen McNaughton's relatives - like all other ordinary citizens who walk into City Hall - did not know the way the game of justice is sometimes played in Philadelphia.
On July 7, 1982, according to court records, a so-called in-camera (in- chambers) hearing was called by Ivins. Present at the session were defense attorney Fitzpatrick and Brian Rosenthal and Joseph Murray of the district attorney's office.
The main issue discussed at this session, the record shows, was how the case had gotten assigned to Ivins in the first place.
"About three months ago, two months ago, whenever it was, Emmett (Fitzpatrick) called and wanted to see me," Ivins said at the hearing. ''He came over and asked me would I accept a case where there was a waiver (of a jury). "
According to state judicial rules, Ivins and Fitzpatrick had conducted what is legally known as an ex parte conversation - a discussion in which only one side in a case talks to the judge.
Ivins continued: "And at that point, Emmett advised me that it involved a killing by automobile, and I said, 'Look, I don't want to know any more about it. I'm satisfied to hear it (the case). ' " He suggested Fitzpatrick get the prosecution's approval.
At that time, homicide cases were assigned through a calendar judge, Paul Ribner. Ribner said he randomly assigned cases to whoever was available, unless both sides agreed to waive a jury trial and try the case in front of a particular judge. Fitzpatrick asked that the case be assigned to Ivins, and the prosecution did not object - so Ribner assigned it to Ivins on July 1, 1982. But Ribner said later in an interview he did not know that Fitzpatrick had privately asked Ivins to take the case before it was officially assigned.
During the July 7 in-camera hearing, Ivins also described his longstanding friendship with Fitzpatrick.
"I've know Emmett for 30 years," the judge said. "We were quite close in the election of '74, when he was elected D.A. and I ran and was elected to the C.P. bench. "
"I've had a very, very friendly feeling with respect to Emmett for a long time. "
By the same token, said Ivins, he was friendly with several members of the district attorney's office, including Murray.
In an interview, Murray said he did not recall Ivins describing private contact with Fitzpatrick. He said he did not ask for a different judge because he trusted Ivins' integrity and believed, as many lawyers do, that Ivins tends to favor the prosecution. Rosenthal said the decision was Murray's and that he had not disagreed with it.
After Ivins established during the in-camera hearing that he would hear the case, records show, he asked the three lawyers not to say a word about any of this in public.
"I have an aversion . . . to discussing matters in newspapers," said Ivins. "I think some of these people get out of journalism school, having taken Journalism III, which is, 'Let's see if we can raise a rumor. ' So, therefore, I'm merely going to say to both sides, if I accept this case - and assuming I do - I want no comments by anybody about this case in the newspaper; namely, that it's a neighbor of mine, or something. I don't want any of that. "
Murray said the prosecution would abide by that. And so did Fitzpatrick.
When the Arno trial began, on July 19, 1982, Ivins disclosed that he had known Fitzpatrick for many years, that they had campaigned together in 1973, that Arno's mother worked in Municipal Court and that the judge and defendant lived in the same neighborhood.
Ivins did not disclose to those assembled, which included the victim's family, that he had taken the case only after Fitzpatrick had asked him to. Nor did he mention the in-camera hearing.
"This matter was assigned to me in the ordinary, routine course of events," he told those assembled in Courtroom 246 of City Hall. "I know nothing more about it than that. "
In a non-jury trial, Ivins found Arno guilty. During a sentencing hearing on Jan. 25, 1983, Arno's mother testified that the accident had changed her son, that he had been punished enough. But prosecutors brought in evidence that Arno had been stopped twice for driving violations since the fatal accident. And the victim's husband related what Arno had said to him after the verdict.
"Walking out of the courtroom," Steven McNaughton testified, "he yelled the words motherf-. "
In an interview, Steven McNaughton recalled his amazement at Arno's behavior. He also recalled how one of the judge's court officers had put a hand to McNaughton's shoulder minutes after Arno's probation sentence was announced and said quietly, "I'm sorry. "
John DiDonato, the assistant district attorney at the sentencing, did not protest the sentence. He recalls a feeling of helplessness.
"I was seething," DiDonato said in an interview. "It was an insult to all the citizens of Philadelphia. It was saying to the victim's family, 'You waited to get justice. You did it the right way, and this is what you got for it. ' "
As it turned out, Craig Arno was a bad probation risk. As terms of his probation, Arno had been ordered not to own or drive a car. But after his sentencing, Arno was stopped by police twice for speeding and driving without a license, insurance and proper car registration - all of which were probation violations. On May 1, 1985, two years after giving him his freedom, Ivins lifted Arno's probation and gave him the maximum sentence: 2 1/2 to five years in prison. He is eligible for parole in Oct. 1987.
Ivins would not comment on any aspects of the case.
Fitzpatrick, asked about his initial call to Ivins, said such requests were commonplace. He said he had made "dozens" of such calls to judges over the years. He said he mainly had wanted to make sure that Ivins was willing to try the case "on a waiver" - without a jury.
The phone call was proper, Fitzpatrick asserted, particularly in light of the fact that the case had been highly publicized, and also because the defendant lived near Ivins.
"It just makes common sense when you had the adverse publicity and the neighborhood involvement to ask in advance," Fitzpatrick said.
"It was the gentlemanly thing to do," he added.
But Karen McNaughton's husband sees it differently. On learning that Fitzpatrick had privately sought out Judge Ivins, Steven McNaughton used one word to describe his feelings:
"Disbelief."