Prosecutors say a Greene County judge abused his discretion in giving a local businessman probation for polluting waterways in six counties and say his decision was based on bias, misapplication of the law and the influence of a book he'd read.
The attorney general's office said in an appeal to Superior Court that Judge Farley Toothman's sentence for Robert Allan Shipman in June was unreasonable and "did not fit the crime."
Judge Toothman gave Shipman, owner of Allan's Waste Water Service, seven years of probation and 1,750 hours of community service. He also ordered him to pay $257,316 in restitution, a $100,000 fine and a $25,000 charitable contribution to the attorney general's office.
Shipman was convicted of dumping drilling wastewater, sewage sludge and restaurant grease into streams, a mine shaft and elsewhere from 2003 to 2009.
The attorney general's office said he also stole more than $250,000 by overbilling companies that hired him to dispose of wastewater by-products.
Shortly after the sentence was imposed, deputy attorney general Amy Carnicella challenged it as too lenient, saying Shipman deserved jail. Sentencing guidelines called for 16 months behind bars, but Judge Toothman defended his decision and said it complied with the law.
In the appeal filed Dec. 19, chief deputy attorney general James Barker said it does not.
Mr. Barker said Shipman stole from customers, falsified documents to mislead the state Department of Environmental Protection and carried out a "methodically planned" scheme to pollute streams over many years.
In fashioning the probation sentence, the judge had considered Shipman's charitable works, his lack of a criminal record, his remorse, a personal tragedy in his family and the fact that he can never again work in the wastewater business.
But Mr. Barker said Shipman did not show remorse and was able to able to make the charitable contributions because he was running a criminal enterprise.
Judge Toothman had also said the state had failed to consistently prosecute polluters, but Mr. Barker countered that the judge could not support that contention with any evidence.
"A review of the record shows that the rationale for the sentence expressed by the trial court is not supported by the record or simply does not warrant this lenient treatment of a serial thief, polluter and deceiver," Mr. Barker wrote.
He said the judge was acting out of prejudice against the prosecution. He accused Judge Toothman of displaying "clear hostility" toward Ms. Carnicella, saying the judge had attacked her for challenging his sentence and "impugned the prosecutor's integrity and professionalism."
He also said Judge Toothman appears to have based his decision in part on a book critical of prosecutors.
In describing the plea agreement as having been negotiated to everyone's satisfaction, the judge had written, "It may now seem that the ease and convenience of a guilty plea has become the tyranny of good intentions for the Commonwealth."
Mr. Barker said that phrase comes from a book, "The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice" by Paul Craig and Lawrence Stratton.
Mr. Stratton is the director of the Stover Center for Constitutional Studies and Moral Leadership at Waynesburg University in Greene County. Judge Toothman, Mr. Barker said, had introduced him during a recent event.
The book argues that prosecutors abuse the plea negotiation process, although Mr. Barker said it also ignores the fact that defendants such as Shipman are represented by lawyers at every stage of the plea process.
"Needless to say," Mr. Barker wrote, "there is no room in the sentencing process for a judge to base a decision on such teachings."
Mr. Shipman's lawyer has until Jan. 18 to file a response.
Torsten Ove: email@example.com or 412-263-1510.