Official got judge switched for man who raped relative

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In 2007, an Allegheny County public official whose relative had been raped made an unusual request: Could a court supervisor change the judge assigned to the trial of the accused attacker?

Despite having no standing in the case, then-Clerk of Courts George F. Matta II, asked for the switch in an e-mail sent to criminal court administrator Helen M. Lynch, the person who oversaw case assignments.

She complied.

Ms. Lynch moved the trial of Tito L. Rivera from Judge Kevin G. Sasinoski to Judge Donna Jo McDaniel. After a jury found Mr. Rivera guilty, Judge McDaniel sentenced him to 80 to 160 years in prison.

That stiff sentence provided the grounds for appeal by the county public defender's office -- first to state Superior Court, which affirmed the punishment, and then to the state Supreme Court, which last week declined to review the matter. Mr. Rivera's lawyers have described the sentence as cruel, unusual, unreasonable and excessive.

Neither court was aware of Mr. Matta's e-mail. Nor were the prosecution or defense. The Pittsburgh Post-Gazette recently obtained a copy.

"That's unbelievable," said Ellen C. Yaroshefsky, director of the Jacob Burns Center for Ethics in the Practice of Law at the Benjamin N. Cardozo School of Law in New York City. "My sense is that there should have been full disclosure."

Both Mr. Matta and Ms. Lynch said they did nothing wrong. They both noted that at the time, Judge McDaniel, who was administrative judge in the criminal division, opted to handle most rape and sexual assault cases so it made sense for her to preside over the trial. She is now the president judge of Common Pleas Court.

In an interview, though, Ms. Lynch acknowledged that she typically would not reassign judges simply because a victim's relative asked her to do so. Mr. Matta's request was treated differently, and legal ethics experts said therein could lie a problem.

'Appearance of impropriety'

"I can understand that a public official can make a phone call, but that should never make a difference," University of Toledo College of Law professor Susan Martyn said. "It totally destroys the impartiality of the system."

"I think there is an appearance of impropriety," Berkeley, Calif.-based lawyer Richard E. Flamm said. "I think it's pretty safe to say [Mr. Matta] has a conflict of interest and shouldn't have any influence over how to allocate or assign the case."

"People are not allowed to choose their own judges. It's one of the bedrock principles of our justice system," said Cynthia Gray, director of the Center for Judicial Ethics of the American Judicature Society, a national organization of judges, lawyers and others who work to improve the justice system.

Judge McDaniel would not speak with a reporter. But through District Court Administrator Raymond L. Billotte, she said she had been unaware of Mr. Matta's e-mail.

"Officially she has no comment regarding the process other than she believes the trial was conducted in a fair and impartial manner," Mr. Billotte said.

The case was notorious because of the circumstances. In August 2007, Mr. Rivera robbed five men at gunpoint in an Oakland apartment. He forced them to lie down, threatened to kill them, and then raped their female friend in an adjacent bathroom while they were helpless to assist her.

Judge McDaniel handed down the maximum sentence for each of eight counts and strung them together to run consecutively instead of concurrently. At Mr. Rivera's sentencing, Judge McDaniel told him she saw "no chance of any rehabilitation because your acts were senseless and meaningless and vicious."

In its appeal, the defense did not take issue with her assessment of Mr. Rivera.

"The crimes that Mr. Rivera was convicted of committing are certainly bad. Anyone convicted of these crimes should expect to receive a lengthy prison sentence," according to the appeal filed with the Supreme Court in December 2009.

But the public defender's office argued -- considering that he did not beat anyone, used only a BB gun, had a relatively minor criminal background and committed his crimes on a single night in one place, rather than in a spree -- the sentence he received was too lengthy.

"Against this backdrop, a life sentence -- an 80-to-160-year sentence cannot be called anything else -- is unreasonable, excessive and grossly disproportionate to what happened," the appeal stated.

Mr. Rivera's case was originally assigned to Judge Sasinoski and scheduled for Jan. 23, 2008. It is unclear how or why that occurred, and Judge Sasinoski declined comment.

E-mail request

On Dec. 28, 2007 -- 10 days before his position was eliminated as a part of a plan to reduce county row offices -- Mr. Matta got involved. His e-mail to Ms. Lynch read:

"Helen, Happy New Year. I looked up my [relative's trial] and it is set for Jan. 23, [2008] with Judge Sasinoski. I thought it was going to be heard by Donna Jo ... ."

Mr. Matta noted that his relative was abroad at the time.

"She will not be back till the next week. Can you have this changed?"

The note concluded with: "Thanks and I appreciate all your and the Judge's good words and friendship. I truly will miss working with you guys and am hoping that we will at least do lunch every so often."

Mr. Matta said he did not discuss the note with anyone else in the court system. One week later, Ms. Lynch carried out his request. The case was moved to Judge McDaniel, as is reflected on the court docket. It had a routine postponement and was heard in May 2008.

There is no way to tell how Judge Sasinoski would have handled sentencing. But among some defense attorneys, Judge Sasinoski at the time was viewed as being somewhat lenient, while Judge McDaniel had a reputation for meting out harsh punishment to sex offenders.

"If you get Donna Jo on a sex crime and [your client is] convicted, you're annihilated," said one veteran defense attorney, who did not want to be named because he is still practicing. He echoed the sentiment of a half-dozen local colleagues polled informally.

Mr. Matta said he was unaware of Judge McDaniel's reputation when he sought the change. Although he had a professional relationship with numerous judges, Mr. Matta said he did not know Judge McDaniel socially.

Public defender Michael J. Machen and District Attorney Stephen A. Zappala Jr. declined comment for this story.

No ulterior motive

Mr. Matta and Ms. Lynch said there was no ulterior motive in requesting or carrying out the reassignment.

"When I did it, I thought nothing of it," Ms. Lynch said. "Maybe that wasn't right. I don't know. But to me, it was right because she's the rape judge. I sent it to the rape judge."

Ms. Lynch said Judge McDaniel was scrupulous about not having contact with Mr. Matta during the trial.

"I do remember the judge was very careful, kept him at arm's length until things were over," Ms. Lynch said.

Before the trial got under way, Judge McDaniel made a statement in open court.

"For the record," she said, "I have spoken to both counsel and told them that the alleged victim in this case is a relative of George Matta, who was clerk of courts who I worked with. They both said they saw no conflict nor do I feel any prejudice."

There was no mention of Mr. Matta's e-mail.

Asked if she discussed the reassignment with Judge McDaniel, a close friend, Ms. Lynch said, "I probably did, but I would send cases down there without asking, too, rape cases."

Ms. Lynch said the past practice of doling out cases in the court's criminal division consisted of making random assignments. When she took over as court administrator under Judge McDaniel's tenure as administrative judge in the criminal division, she modified the process.

New judges, for instance, no longer got homicide trials. Rapes generally went to Judge McDaniel. Drunken-driving cases tended to be handled by Judge Sasinoski. Other judges specialized in cases involving defendants with mental-health issues or veterans affairs.

More experience in rape cases

"Some judges are more talented than others," Ms. Lynch said. "There's no requirement that the assignment of cases be through a computer. In fact, a good system will play to people's strengths."

Ms. Lynch said she moved the trial because of Judge McDaniel's vast experience and even-handed approach to rape cases.

"I don't think it was inappropriate because I was sending it to the judge who I thought was best able to handle a rape case," Ms. Lynch said. "And that's what I did with George's case, not because she was the toughest, but because she's the best."

Ms. Lynch acknowledged that the average person likely would not have succeeded in having a trial judge changed. She also said she had not carried out such a change before at the behest of a public figure.

"I can't think of having done it at any other time," she said.

Ms. Lynch, a former defense attorney, acknowledged that she would have been concerned while still practicing if she learned that a victim's relative were trying to pick the judge on a case.

"But it was innocuous," Ms. Lynch said. "I don't know. I moved it because, eh, I thought Donna Jo should have this case. She has most of the rape cases. I didn't think twice about it because I moved cases all the time for all sorts of reasons."

Mr. Matta said one of his main concerns was making sure the trial accommodated his relative's schedule. But monitoring a victim's availability for trial is the responsibility of the prosecution.

There would have been nothing to prevent the prosecutor, Deputy District Attorney Janet Necessary, from asking Judge Sasinoski for a postponement because of the victim's schedule.

"I vaguely remember that she was out of the country," Ms. Necessary said. "Somebody from the family told me. And it was probably the victim herself who told me she was going to be out of the country at the time."

Ms. Necessary said she had no recollection that the case was moved from one courtroom to another. "I just remember that we did it in Judge McDaniel's," she said.

Asked if she was aware of Mr. Matta's e-mail, Ms. Necessary said, "No, and I never know how cases get scheduled. Don't know anything about it. We just look in the computer and see who the case is assigned to."

Mr. Matta said he knew that Judge McDaniel handled most rape cases.

"I felt that maybe that case was assigned inappropriately or assigned wrong," he said.

Mr. Matta said he had no issue with Judge Sasinoski's abilities. He also acknowledged that as the former clerk of courts, he had no role in assigning cases.

"If I thought it was inappropriate, I wouldn't have done it," said Mr. Matta, who is now director of business development and community relations at the Rivers Casino on the North Shore. "I don't think I intervened at all. They could have denied that."

Charles G. Geyh, an ethics expert at the Indiana University Maurer School of Law, said even if the case were moved because one judge handled most of the rape cases, an appearance problem could crop up simply because the requesting party was related to the victim.

"Had it been anybody but the guy whose [relative] was brutally raped I would be a whole lot more comfortable with it," he said.

Moving the case might have been the correct solution administratively.

"But we just don't know that," Mr. Geyh said. "How likely is it that any of the parties involved are going to say, 'Yeah, I did it because I wanted to nail this guy's hide to the wall,' whether it's true or it's not? We just won't know, and that creates the kind of decision that's best avoided."


Jonathan D. Silver: jsilver@post-gazette.com or 412-263-1962.


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