Opinion
2 JD 2021
10-04-2022
IN RE: MICHAEL J. CABRY, III FORMER MAGISTERIAL DISTRICT JUDGE MAGISTERIAL DISTRICT COURT 15-3-06 CHESTER COUNTY
Samuel C. Stretton, Esquire, Attorney for the Respondent
Samuel C. Stretton, Esquire, Attorney for the Respondent
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE RESPONDENT, MICHAEL J. CABY, III, PURSUANT TO RULE 502 (B) (3) OF THE RULES OF PROCEDURE OF THE COURT OF JUDICIAL DISCIPLINE
The Respondent, Former Magisterial Judge, Michael J. Cabry, III, is here before this Honorable Court pursuant to the plea of guilt to the crime of theft (18 Pa. C.S.A. 3921[A]) that is a misdemeanor of the second degree. Mr. Cabry also pled guilty to an election code election involving reporting by a candidate at 25 P.S. 324 6(A) which is an ungraded misdemeanor with a maximum sentence of one year. He also pled guilty to another election code violation found at 25 P.S. 3246(B) (iv) that again involves failure to include information in the financial reports submitted by a candidate for judicial office. This was also an ungraded misdemeanor with a maximum sentence of one year. The final plea Mr. Cabry made was to unlawful election expenses pursuant to 25 P.S. 3254.1. This was also an ungraded misdemeanor.
Although a detailed grand jury presentment had been filed against Mr. Cabry, much of that was not accurate or correct. There is a stipulation as to the amount of monies improperly withdrawn by Mr. Cabry in the amount of $3,254.97, in sixteen separate transactions. In the presentment there were errors about financial reports not being filed which is incorrect. When Mr. Stretton became involved with this case, he immediately went over to Voter Services of Chester County and pulled the reports and they were all there. The Attorney General's Office never had checked to see that. The stipulations and testimony are the facts of the case, not the grand jury presentment.
Mr. Cabry has admitted the rule violations although obviously that is for this Court to find but Mr. Cabry has admitted to violating the Rules of Conduct for Magisterial District Judges, Rule 1.1, requiring a Judge to comply with the law. This admission was due to the improper handling of campaign funds by Mr. Cabry. Mr. Cabry has agreed to violating Article V, Section 17(B) of the Pennsylvania Constitution since that section is violated if there is a violation of the Judicial Rules for Magisterial District Judges since Mr. Cabry admitted violating Rule 1.1.
The dispute in this case has always been whether Mr. Cabry's conduct as pled to, violated Article V, Section 18(D)(1) of the Pennsylvania Constitution. That rule prohibits a Judge from brining the Judicial Office into disrepute.
On August 10th, 2022, a hearing was held before the Honorable James J, Eisenhower, the presiding Judge, the Honorable Daniel D. McCaffery, and the Honorable Daniel E. Baranoski of the Court of Judicial Discipline. Attorney James Kleman, Deputy Counsel for the Judicial Conduct Board gave his opening statement, (8/10 N.T. 9, 10, 11). Mr. Kleman then presented the stipulations of the parties and the exhibits, (8/10 N.T. 11, 12). Present counsel, Samuel C. Stretton, Esquire, then provided his opening statement, (8/10 N.T. 27 -37) .
Mr. Stretton then presented as witnesses, attorney Dawson Muth, (8/10 N.T. 40), Former District Judge Charles Clement, Jr., (8/10 N.T. 71) and electrical contractor, Ronald Scott, (8/10 N.T. 83). Mr. Stretton's final witness was the Respondent, Mr. Cabry, (8/10 N.T. 89). At the conclusion of the testimony, Mr. Kleman made a closing statement, (8/10 N.T. 167). Mr. Stretton then made a closing statement, (8/10 N.T. 173). Judge Eisenhower then requested Findings of Fact and Conclusions of Law, (8/10 N.T. 181).
Mr. Cabry's request is that he not be found in violation of brining his judicial office into disrepute (Article V, Section 18(D)(1).
PROPOSED FINDINGS OF FACT
1) Mr. Cabry stipulated to his guilty plea colloquy which is marked as Board's Exhibit XM". The guilty plea was before the Honorable Stephen B. Lieberman, (8/10 N.T. 14, 15, 16). The guilty plea colloquy was to the following:
A) Theft by unlawful taking, a misdemeanor of the second degree, (18 Pa. C.S.A. 3921[A]).
B) Reporting by candidate and political committee, 25 P.S. 3246(A), an ungraded misdemeanor.
C) Report must list each expenditure and person, 25 P.S. 3246(B) (4), an ungraded misdemeanor.
D) Unlawful election expenses, 25 P.S. 3254.1(A), an ungraded misdemeanor.
2) Mr. Cabry entered his plea to the above charges and was sentenced on September 22nd, 2021 by Judge Lieberman. See Board's Exhibit "6" (8/10 N.T. 15, 16).
3) The admission by Mr. Cabry of the relevant facts is set forth in the guilty plea colloquy (Board's Exhibit "4") and states as follows:
“On or about November 13th, 2016 through January 31st, 2018 the Defendant, while candidate for public office, failed to file appropriate and accurate campaign reports of expenditures and receipts; failed to provide full and accurate account of expenditures and withdrew funds from his campaign account for purposes unrelated to his campaign. Additionally the Defendant unlawfully took funds from the campaign account and used the funds for personal expenses unrelated to
political activity," (See Board''s Exhibit "4", page 2).
4) Although the plea to theft was only to a misdemeanor of the second degree, and 18 Pa. C.S.A. 3903, defines the amount of the theft to be between $50.00 and $200.00, Mr. Cabry has stipulated that the actual amount taken was $3,254.97 in sixteen separate transactions, (8/10 N.T. 11).
5) At the sentencing hearing on September 22nd, 2021, Mr. Cabry was sentenced by Judge Lieberman to one year probation to be concurrent on all four counts, (see Board's Exhibit "6", and 8/10 N.T. 9). No restitution was ordered.
6) The Assistant Attorney General at the sentencing, noted as follows:
"Your Honor in light of Mr. Cabry's actions as" well -in addition to his decision to take accountability for these actions by pleading guilty and submitting his formal resignation yesterday and based upon the standard guideline range calling for restorative sanctions, the Commonwealth is requesting a period of supervision for probation," See Board's Exhibit "6", page 10.
7) Judge Lieberman, who sentenced Mr. Cabry, noted that he was not a danger to the community, there was no indication that Mr. Cabry would ever commit another offense, and he noted the devastation to Mr. Cabry's reputation, (see Board's Exhibit "6", N.T. 12, 13). Judge Lieberman then said the following:
"I am very sorry that you had these problems in your life. I am sorry that you know, that this is what it's come to. I'm sure you are more sorry than I am. And I know, you are still a relatively young man and you
will have a lot of time left and I am sure that you will use it well. I'm sure you will continue your community service and your volunteer services and I hope you will be able to find some satisfactory employment and that you will continue to be an asset to your family and to the community," see Board's Exhibit "6", the Sentencing Hearing of September 21st, 2021, N.T. 15.
8) Mr. Stretton, as part of the Exhibits, introduced N>R-1", which was his Pre-Trial Memorandum with Exhibits, (8/10 N.T. 37, 38, 39).
9) In “R-1", there was the report that was stipulated to of Mr. Cabry's treating therapist. That was Exhibit XXR-1" marked as Exhibit NXA". This was the report of Mark Oleski-, a licensed psychologist, dated April 22nd, 2022. Mr. Oleski met Mr. Cabry initially on October 13th, 2020 and noted his severely depressed mood. He noted the depression was caused, among other reasons, by Mr. Cabry's wife's six-year battle with cancer resulting in her death in March of 2020. He noted the house fire in September of 2017, and he noted the ongoing investigation involving campaign funds. He noted that Mr. Cabry followed up with him consistently and participated in treatment and has been doing very good. He noted that while Mr. Cabry has demonstrated progress, he still continues to experience episodes of emotional decompensation, including anxiety, panic and depression. He noted Mr. Cabry would continue to benefit from ongoing mental health services, (see Exhibit VXA" to X>R-1") .
10) "R-1" also included statements from a number of other character witnesses, including Reverend Matthew Guckin, the Pastor of Our Lady of Mount Carmel Church, former Detective Lieutenant William Cahill, former Chester County Commissioner Terrance Farrell, Chief of Police Curt Martinez of West Cain Township Police Department, Erika Ferritti, a registered nurse, Albert Grundy, a character witness, Tara Lambert, a former employee of Michael Cabry, Ron and Toni Scott, character witnesses, Michael Cabry, IV, Mr. Cabry's son who is a Police Officer in Cain Township, attorney Dawson Muth, a character witness and the criminal attorney for Mr. Cabry, attorney James MacElree, Michael Matta, head football coach for Downingtown East, John Sly Chief of Westwood Fire and Ambulance Company, Stephanie Supplee, former office manager for Mr. Cabry when he was a Magisterial District Judge, Frank Lamarra a friend and character witness, Joyce Macintosh a character witness. All of these letters were stipulated to are part of Exhibit "R-l" and the hearing record.
11) The parties agreed to the proposed stipulations that were prepared by Mr. Kleman on behalf of the Judicial Conduct Board. These stipulations read as follows:
A) The parties stipulate to the authenticity and admissibility of all exhibits set forth in Paragraphs B (1)-(6).
B) Article V, Section 18 of the Constitution of the Commonwealth of Pennsylvania grants to the Board the authority to determine whether probable cause exists to file formal charges against a judicial officer in this Court, and, when it determines that probable cause exists, to prosecute the case in support of such charges in this Court.
C) From approximately March 22, 2000, until his resignation on September 21st, 2021, Mr. Cabry served continuously as the duly elected Magisterial District Judge of Magisterial District Court 15-3-06, Chester County.
D) Pursuant to Article V, Section 18(a)(7) of the Constitution of the Commonwealth of Pennsylvania, the Board determined that probable cause exists to file formal charges against Mr. Cabry in this Court.
E) By criminal complaint filed October 6th, 2020, at Commonwealth v. Michael J. Cabry, III, MJ-15203-CR-181-2020, the Pennsylvania Office of Attorney General (OAG) filed criminal charges against Mr. Cabry stemming from Presentment No. 13 of the 45th Statewide Investigating Grand Jury.
F) The OAG charges Mr. Cabry with the following offenses: (1) theft by unlawful taking, 18 Pa. C.S.A. 3921(a), a felony of the third degree; (2) perjury, 25 P.S. 3249(b), a misdemeanor of the first degree; (3) reporting by candidate and political committee, 25 P.S. 3246(a), an ungraded misdemeanor;
(4) reporting by candidate and political committee, 25 P.S. 3246(b)(2),. an ungraded misdemeanor; (5) reporting by candidate and political committee, 25 P.S. 3246(b)(4), an ungraded misdemeanor; and (6) lawful election contributions, 25 P.S. 3254(a), an ungraded misdemeanor.
G) Mr. Cabry waived his right to a preliminary hearing and the aforementioned charges were bound over for trial in the Court of Common Pleas.
H) On September 22nd, 2021, at Commonwealth v. Michael J. Cabry, III, CP-15-CR-3380-2020, Mr. Cabry pleaded guilty to the following offenses: (1) theft by unlawful taking, 18 Pa. C.S.A. 3921(a), a misdemeanor of the second degree; (2) reporting by candidate and political committee, 25 P.S. 3246(a), an ungraded misdemeanor; (3) report must list each expenditure and person, 25 P.S. 3246(B)(4), an ungraded misdemeanor; and (4) lawful election expenses, 25 P.S. 3254.1, an ungraded misdemeanor.
I) In his written guilty plea colloquy, executed September 22nd, 2021, Mr. Cabry admitted the following:
“On or about November 13th, 2016 [,] through January 31st, 2018, the defendant, while a candidate for public office, failed to file appropriate and accurate campaign reports of expenditures and receipts; failed to provide fill and accurate account of expenditures and withdrew funds from his campaign account for purposes unrelated to his campaign. Additionally, the defendant unlawfully took funds from the campaign
account and used the funds for personal expenses unrelated to political activity."
J) As a result of Mr. Cabry's guilty plea, the Honorable Stephan B. Lieberman sentenced Mr. Cabry on September 22nd, 2021, to an aggregate sentence of one year of probation. The Judge did not order any fine or restitution.
K) Mr. Cabry has not appealed his judgement of sentence, and, consequently, it is final and factually binding for purposes of proceedings within this Honorable Court.
L) The parties stipulate and agree that Mr. Cabry withdrew $3,254.97 in 16 separate transactions from the Citizens for Cabry campaign account in 2017 at various casinos in Pennsylvania, New Jersey, and Delaware, for personal expenditures unrelated to political activity. See 8/10 N.T. 12, 13, 14, 15, 16.
12) Mr. Cabry testified. He noted he was 61 years of age at the time of the hearing and grew up in Norwood, Delaware County, (8/10 N.T. 90).
13) He testified that he was a financial planner prior to being elected District Judge and worked at Brandywine Financial Planners. He noted he was a Certified Financial Planner and had licenses and insurance and securities, (8/10 N.T. 90).
14) Mr. Cabry noted, prior to being elected Judge, he was very active in Republican politics in Chester County and lived in West Brandywine Township. He was one of the area chairmen for the Republican Party prior to his election as District Judge, (8/10 N.T. 91).
15) Mr. Cabry was elected to Office of the District Judge in 1999 and took office in March of 2000. He was reelected thereafter three times, his last election occurring during the year of 2017. He served as District Judge from March of 2000 until his interim suspension, (8/10 N.T. 91, 92).
16) Mr. Cabry testified that he resigned his judicial position on September 21st, 2021 the day before he entered his plea and was sentenced by Judge Lieberman as noted above, (8/10 N.T. 92) .
17) Mr. Cabry discussed his many community related matters, which included volunteering at his son's school, being a playground monitor, coaching youth football, chairman of the Brandywine Healthcare and Hospice and visiting nurses, West Brandywine Township Planning Commission, education chair of Chester County Development Corporation, coach for little league baseball and CYO football and CYO basketball (CYO is Catholic Youth Organization), (8/10 N.T. 92).
18) Mr. Cabry was also chairman of Cain Athletic Association and the little league. Mr. Cabry was and is an assistant coach of high school football at Downingtown East. His coaching activities are without charge. He noted that he had played sports, including football and wrestling, when he was in high school, (8/10 N.T. 93).
19) Mr. Cabry noted he had served on the finance committee of his company's committee, (8/10 N.T. 93). He was also very active with his parish which is the St. Peter's Catholic Church, (8/10 N.T. 94).
20) Mr. Cabry was also a member of the Rotary Club for a number of years, (8/10 N.T. 94).
21) Mr. Cabry testified that he was never disciplined as a District Judge until the present misconduct, (8/10 N.T. 94).
22) Mr. Cabry testified that as a District Judge his case load was always current. He indicated there had been four audits by the Auditor General of his office and there were no problems noted and the audits found his office to be in good condition, (8/10 N.T. 94, 95).
23) Mr. Cabry was married on May 19th, 1986 and had one child from the marriage, his son Michael Cabry, IV, who was present at the hearing and is an active police office in Cain Township, (8/10 N.T. 95).
24) Mr. Cabry testified that he and his wife were extremely close and did everything together. He said that in October of 2014 he received a call at his judicial office from his wife and was told that she had triple negative breast cancer in stage four. Mr. Cabry testified that he personally took care of his wife for the next six years and really took care of her at the end of her life when she was under hospice care and he was the care giver, (8/10 N.T. 96, 97.) He testified that his sisters and aunt also helped him and they had visiting nurses visiting the home, (8/10 N.T. 97).
25) Mr. Cabry testified that he felt he was on a roller coaster those six years of taking care of his wife. At times she would seem to get better and then she would seem to get worse. He said his wife was unable to work and unable to drive so he had to take care of her, (8/10 N.T. 97, 98).
26) Mr. Cabry pointed out that originally in October of 2014 she was given six months to live and the doctors again, each year, would say only six months but she lived until 2020. (8/10 N.T. 98, 99). Mr. Cabry testified in 2017 he ran for reelection. He noted that in his first campaigns he had about 200 people working for him and had a campaign committee and real treasurers, (8/10 N.T. 99).
27) Mr. Cabry said that for the 2017 campaign, he had a campaign chairman, attorney Eric Brown, but essentially Mr. Cabry ran the campaign. He had his niece, Kristin Wiggins, as his treasurer but he did all of the work. He said he had Allan Novak and Pat Gillespie as his honorary campaign chairman, (8/10 N.T. 100).
28) When Mr. Cabry was asked why he did not use the same people he had for prior campaigns,, he said he did not have a good answer to'that. He ran the campaign while he was taking care of his wife, (8/10 N.T. 99, 100, 101).
29) Mr. Cabry indicated that after his wife diagnoses, he began to go gambling with some regularity on Friday nights or Saturday nights and generally would go to Delaware Park and would play in the Texas Holdem tournament, (8/10 N.T. 101).
30) Mr. Cabry stated he would go when his wife was asleep and said he went because he just had to get away once a week for an hour or two. He said his wife encouraged him to do it once a week to relax, (8/10 N.T. 101).
31) Mr. Cabry testified he began to use his campaign funds the first time when he was at the Honeybrook Fire Company and did not have his money with him but had his ATM card for the campaign. He took money out to buy a chicken dinner at the Honeybrook Fire Company, (8/10 N.T. 102).
32) Mr. Cabry agreed to the stipulation that he had misused $3,254.97 in withdraws. He testified that he knew the campaign at times owed him money, he would take money out and gamble with the money sometimes. He indicated the campaign owed him money because at times he would be campaigning and take people to lunch and paid for it and not timely submit bills to the campaign, (8/10 N.T. 102, 103). In terms of filling out the campaign reports, he agreed that he did fill them out. He indicated he believed there were nine campaign reports. He said the first three or four had no problems. He said after that when he took it over, he did not keep receipts or could not find them so he filled the reports out to the best of his knowledge. He said that,, he was aware there were expenses missing, (8/10 N.T. 103) .
33) Mr. Cabry testified that during that time in 2017, he maintained his campaign records either in his house or in his car but there was a fire in September of 2017 at his house and with resulting smoke damage and he and his wife moving out for 10 weeks and live in a hotel, (8/10 N.T. 103, 104)'.
34) Mr. Cabry testified that many of the campaign receipts were either misplaced or lost as a result of the fire or the cleanup, (8/10 N.T. 104).
35) Mr. Cabry testified that he won the election in 2017 but had no good answer as to why he did not seek more help. He noted that in hindsight he should have and further indicated he should have started to see a therapist back then, (8/10 N.T. 105).
36) Mr. Cabry pointed out that he served as president of the statewide District Judge Association from 2018 to 2019. He testified he was considering not serving in that position because of his wife's condition but she wanted him to and she told him he had to swear to her he would do the job, (8/10 N.T. 105, 106, 107).
37) Mr.. Cabry said that sometime in July of 2020 he heard from his constables that there was an investigation before a grand jury, (8/10 N.T. 107). He testified that he became aware he was the subject of criminal charges in August of 2020, (8/10 N.T. 108).
38) He said he had handed in his final campaign reports in January of 2018 for the 2017 campaign. When he handed them in, the clerk told him the monies did not add up. The clerk told him to file an amended report but also said that no one ever looks at these reports, (8/10 N.T. 108, 109).
39) Mr. Cabry said he never filed the amended report. His wife had just gotten sicker and sicker during the last of 2018 and 2019 as the cancer spread throughout her body, (8/10 N.T. 109, 110). Mr. Cabry testified that at that point, with his wife's condition, he just really did not care about anything and just spent time with his wife, (8/10 N.T. 110).
40) Mr. Cabry said he kept up his public persona and did his duties as the chairman of the state District Judges Association and handled his courtroom cases properly during that time. He said he compartmentalized his conduct, (8/10 N.T. 110, 111) .
41) Mr. Cabry testified that after his wife passed away in March of 2020, he then finally went to see a therapist. She died on March 16th/ 2020, (8/10 N.T. 110, 111, 112).
42) Mr. Cabry testified that his wife died as covid hit and he was alone in his house for months because the Courts were closed this became a very difficult time for him, (8/10 N.T. 112). Mr. Cabry testified that he contacted Judges Concerned for Judges and was referred to his current therapist. He also went to see attorney Charles Mirarchi who was known as CP, who is also a therapist and an expert on gambling. Unfortunately, Mr. Mirarchi died recently of pancreatic cancer, (8/10 N.T. 113, 114). Mr. Cabry testified that during the years at issue with his campaign reports, he suffered from a great deal of depression, (8/10 N.T. 115).
43) Mr. Cabry said that he had started to talk to his friend and attorney Dawson Muth and they started to collect his papers, with the intention to file amended reports. He said he had papers piled all over his dining room table, (8/10 N.T. 115, 116). He said he then found out he was under investigation so he held off, (8/10 N.T. 117).
44) Mr. Cabry testified that currently he was not working but was living on his judicial pension and with help of several friends, (8/10 N.T. 119). He stated that he was currently getting a part of his pension and his medical insurance paid, (8/10 N.T. 119).
45) Mr. Cabry testified that his probation would end on September 21st, 2022. He testified that he would then be allowed to return as an assistant coach to Downingtown East Football team. He said he is now titled as Chief of Staff for the football team, (8/10 N.T. 119). Further, Mr. Cabry said that he is still involved with community service, particularly with his church. He has given speeches to young people recently, telling them about his misconduct and how to avoid that, (8/10 N.T. 119, 120). Mr. Cabry talked about how he has helped former football players and talked one out of suicide. He indicated that after he has worked recently with a student and now that young man graduated from college and has his master1s degree and wants to help others similarly, (8/10 N.T. 120, 121).
46) Mr. Cabry testified how parents of students would come up with him and thanked him for talking to their sons recently and given their sons incentive to do things in life, (8/10 N.T. 121) .
47) Mr. Cabry stated that it is his intention to continue to work with young people, (8/10 N.T. 121). Mr. Cabry indicated that he has no other assets or income if he lost his judicial pension, (8/10 N.T. 121).
48) Mr. Cabry testified that he lost his house since he was unable to pay the mortgage so he sold the house and is living in a rental apartment, (8/10 N.T. 122).
49) Mr. Cabry accepted full responsibility. He agreed that what he did was wrong and accepted responsibility for his misconduct. He said he has never denied his misconduct, (8/10 N.T. 122).
50) Mr. Cabry admitted to violating Magisterial Rules of Conduct Rule 1.1 for violating the law, (8/10 N.T. 122).
51) Mr. Cabry said he admitted to violating Article V, Section 17(B) of the Pennsylvania Constitution, (8/10 N.T. 122).
52) Mr. Cabry denied violating the constitutional provision against disrepute. He noted the support he has from the community and from law enforcement, (8/10 N.T. 123). Mr. Cabry testified that he was asking the Court of Judicial Discipline not to find him in violation of disrepute but to find him in violation of the other charges, (8/10 N.T. 122).
53) During cross examination, Mr. Cabry admitted that the campaign reports were not accurate and he used money for himself. He agreed that he knew when he signed the reports, they were not accurate, (8/10 N.T. 134, 135). He agreed that he was dishonest in filing the reports, (8/10 N.T. 135).
54) During cross examination, when asked why he did not correct everything, he said it was his intention to do so but when he filed the reports the cancer had spread throughout his wife's body and she only had a short time to live, and he let everything slide, (8/10 N.T. 137, 138).
55) Mr. Cabry stated that he did not think he currently has a gambling problem or addiction problem though he testified he did therapy with Mr. Mirarchi (CP), (8/10 N.T. 161, 162).
56) In addition to the stipulated letters, attorney Dawson Muth testified, (8/10 N.T. 40).
57) Mr. Muth had served as ten years as an elected District -Justice in West Chester and then went to law school and now practices law as a partner at the law firm of Lamb McErlane, (8/10 N.T. 41).
58) Mr. Muth served as a member of the Court of Judicial Discipline after it was originally formed in 1994, (8/10 N.T. 41).
59) Mr. Muth said that he got to know Mr. Cabry when Mr. Cabry ran initially for Judge in 1999 and he developed an excellent friendship with him over the years and got to know Mr. Cabry and his wife very well, (8/10 N.T. 41, 42).
60) Mr. Muth represented Mr. Cabry on the criminal charges. He was present when the plea was negotiated, (8/10 N.T. 42).
61) Mr. Muth had appeared before Mr. Cabry over the years and described him as an excellent Judge. Mr. Cabry treated everyone with respect in his courtroom. His court staff admired him- He was fair to everyone. He did not lose his temper and treated everyone with respect, (8/10 N.T. 42, 43).
62) Mr. Muth confirmed that Mr. Cabry was always current on his caseload. He confirmed that Mr. Cabry served as chairman of the Chester County District Judges Association and then was elected to be president of the Statewide District Judge Association in 2018, (8/10 N.T. 43).
63) Mr. Muth testified how close Mr. Cabry was to his wife and he described how sad it was watching her deteriorate from a vibrant life loving joyous person to the point where she became emaciated and lost all of her hair. He said it terribly effected Mr. Cabry, (8/10 N.T. 43, 44). He confirmed that Mr. Cabry was the primary care taker and Mr. Cabry's sisters helped. He said that Mr. Cabry was with her 24/7 except when the student nurse came, (8/10 N.T. 45).
64) Mr. Muth confirmed that he and Mr. Cabry were in the process of collecting material to file the amended returns and correct the reports when the criminal investigation began, (8/10 N.T. 46).
65) Mr. Muth confirmed that Mr. Cabry cooperated 100% with the Attorney General's investigation. Mr. Cabry gave all of the documents to the Attorney General's Office. He also offered to cooperate with their investigation in Berks County, (8/10.N.T. 46, 47).
66) Mr, Muth confirmed that Mr. Cabry waived his preliminary hearing and then entered a plea of guilt, (8/10 N.T. 48) .
67) Mr. Muth confirmed they were originally felony charges and they were reduced to misdemeanors. Mr. Muth confirmed how devastating these events have been to Mr. Cabry. He said that except for this, Mr. Cabry did an excellent job as a Judge and helped a lot of people, (8/10 N.T. 54).
68) Mr. Muth confirmed that Mr. Cabry's current reputation in the community as a peaceful and law-abiding person and as a truthful and honest person is excellent, (8/10 N.T. 56).
69) Mr. Muth confirmed that all contributions were properly listed in the financial reports for the campaign, (8/10 N.T. 58).
70)Mr. Muth, pursuant to questions by Judge McCaffery, confirmed no restitution was ordered at the criminal hearing Mr. Muth also stated he asked Chester County Voter Services to reopen the campaign committee but they said that could not be done, (8/10 N.T. 66, 67).
71) The next witness was Charles Clement, (8/10 N.T. 70). Mr. Clement was a Former District Judge of Cumberland County and he is now retired, (8/10 N.T. 71).
72) Former Judge Clement indicated that he met Mr. Cabry in 2000. Former Judge Clement over the years became friends with Mr. Cabry. Former Judge Clement indicated that he had also served on the Court of Judicial Discipline and was President Judge of that Court, (8/10 N.T. 72).
73) Former Judge.Clement confirmed that Mr. Cabry served very well as President of the District Judge Association, (8/10 N.T. 73, 74) .
74) Former Judge Clement testified that Mr. Cabry was not the same during the years his wife was ill. He described the times Mr. Cabry would get very emotional, (8/10 N.T. 74).
75) Former Judge Clement testified that Mr. Cabry wanted to step down as the head of the judge's association but his wife would not let him, (8/10 N.T. 75).
76) Former Judge Clement confirmed that Mr. Cabry accepted full and complete responsibility for his misconduct and has been extremely remorseful, (8/10 N.T. 75).
77) Former Judge Clement confirmed Mr. Cabry has an excellent reputation as a peaceful and law-abiding person and as a truthful and honest person currently, (8/10 N.T. 77).
78) The final witness called was Ronald Scott, a friend of Mr. Cabry and an electrical contractor, (8/10 N.T. 83).
79) Mr. Scott testified that he has known Mr. Cabry for over thirty years since they first met at the Rotary Club and they became involved in community service, (8/10 N.T. 83, 84).
80) He confirmed the various community service activities that Mr. Cabry was involved with, including visiting nurse association, various boards and committees, coaching sports, (8/10 N.T. 84).
81) Mr. Scott was close to Mr. Cabry and his wife and was aware of Mr. Cabry's wife's illness. He confirmed that Mr. Cabry was taking care of his wife. He described how Mr. Cabry continued to work as a Judge and in his community service and was taking care of his wife and how sad and depressed he was becoming but he still continued to do everything, (8/10 N.T. 85).
82) Mr. Scott confirmed that Mr. Cabry had great remorse for his misconduct and has accepted full and complete responsibility, (8/10 N.T. 86).
CONCLUSIONS OF LAW
83) Mr. Cabry violated Rule 1.1 under Magisterial District Judges Standards of Conduct, since his misconduct and criminal convictions violated the criminal law.
84) Mr. Cabry violated the Pennsylvania Constitution under Article V, Section 17(B) since his violation of the Standard of Conduct/ Rule 1.1, violated the constitutional provision of 17 (B) since it violates a cannon.
85) Mr. Cabry did not violate Article V, Section 18(D)(1) of the Pennsylvania Constitution since Mr. Cabry did not bring the Judicial Office into disrepute, since there was no universal disrepute as a result of his criminal conviction and sentence to misdemeanors and probationary sentence.
86) Mr. Cabry's misconduct occurred during a very difficult time in his life when he was caring for his very ill wife as the primary care taker, which resulted in his depression and mitigation. Mr. Cabry had an otherwise excellent record as a Judge, there was no prior judicial misconduct, he has been extremely active in the community and he was most remorseful for his misconduct and accepted responsibility.
LEGAL ARUGMENT
Mr. Stretton incorporates by reference, the Brief he filed on the issue of disrepute in his Pre-Trial Brief that has been previously submitted to this Honorable Court. That Brief on the issue of disrepute is attached and marked as Exhibit "A". Mr. Stretton is willing to appear for additional argument if needed.
CONCLUSION
In conclusion, Mr. Stretton, on behalf of the Respondent, Michael Cabry, III, respectfully requests this Honorable Court not find him in violation of bringing the judiciary into disrepute.
CERTIFICATE OF COMPLIANCE
I, Samuel C. Stretton, Esquire, certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
[Exhibit A Omitted]