Opinion
4 JD 2020
10-08-2020
IN RE: Judge Mark V. Tranquilli Court of Common Pleas 5th Judicial District Allegheny County
RICHARD W. LONG Chief Counsel JAMES P. KLEMAN, JR. Deputy Counsel Pa. Supreme Court ID No. 87637 Judicial Conduct Board Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 3500 P.O. Box 62525 Harrisburg, PA 17106 (717) 234-7911
JUDICIAL CONDUCT BOARD REPLY TO JUDGE TRANQUILLI'S OMNIBUS MOTION AND ANSWER TO MOTIONS IN LIMINE AND MEMORANDUM OF LAW
AND NOW, this 8 day of October, 2020, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) by and through undersigned counsel, and files this Reply to Judge Tranquilli's Omnibus Motion and Answer to Judge Tranquilli's Motions in Limine and accompanying Memorandum of Law:
REPLY TO JUDGE TRANQUILLI'S OMNIBUS MOTION
1. Admitted. By way of further answer, on August 12, 2020, the Board filed a six-count Board Complaint alleging that Judge Tranquilli committed judicial misconduct by engaging in the following conduct: (1) mocking and harassing litigants before their lawyers during a custody conciliation conference; (2) referring to a juror in a criminal trial by a racial epithet and stereotyping language; and (3) belittling, demeaning, and threatening criminal defendants appearing before him at sentencing with inappropriate language.
2. Admitted.
3. Admitted.
4. Admitted in part. It is admitted that Judge Tranquilli is not presently and has not previously been charged with a crime. The Board is without
sufficient information to admit or deny the remainder of this averment. Accordingly, it is denied.
5. Admitted.
6. Admitted in part. It is admitted that Judge Tranquilli served in the Family Division and that he presided over dependency, delinquency, child custody, and divorce cases. It is denied that delinquency cases are "criminal;" they are delinquency cases.
7. Admitted in part. It is admitted that Judge Tranquilli was assigned to the Criminal Division of the Allegheny County Court of Common Pleas on January 3, 2018. The Board is without sufficient information to admit or deny the remainder of this averment. Accordingly, it is denied.
8. Admitted.
9. Admitted in part. It is admitted that, as a criminal trial judge, Judge Tranquilli presided over criminal trials consistent with that assignment. The remainder of this averment states a conclusion for which no response is necessary.
10. The Board is without sufficient information to admit or deny this averment. Accordingly, it is denied. To the extent that the records of Judge Tranquilli's assignments confirm this averment, those records speak for themselves.
11. The Board is without sufficient information to admit or deny this averment. Accordingly, it is denied. To the extent that the records of Judge Tranquilli's assignments confirm this averment, those records speak for themselves.
12. The Board is without sufficient information to admit or deny this averment. Accordingly, it is denied. To the extent that the records of Judge Tranquilli's assignments confirm this averment, those records speak for themselves.
13. This averment fails to state any facts upon which a response may be formulated. To the extent a response is necessary, the Board incorporates herein the averments set forth above by reference as though set forth in full.
14. Denied as stated. Pennsylvania Court of Judicial Discipline Rule of Procedure 411(D)(3) states the following "[the] Judicial Officer may challenge the validity of the charges on any legal ground including...that the Board violated the procedures governing it[.]" (emphasis added). Contrary to Judge Tranquilli's averment, Rule 411(D)(3) does not limit a challenge to factual allegations only.
15. Admitted.
16. Admitted in part. It is admitted that Attorney Timothy G. Uhrich filed a confidential request for investigation on February 10, 2020, and that this filing was nearly four years, six months from August 14, 2015, the date of the custody conciliation conference in the Patterson matter. The remainder of this averment states a conclusion of law for which no response is necessary. To the extent that this conclusion is construed to allege facts, they are denied and strict proof of same is demanded. The Board will submit its argument regarding this conclusion in the attached memorandum of law.
17. Denied as stated. By way of further answer, it is admitted that the factual allegations in the Board complaint and in Attorney Uhrich's complaint are similar. This similarity is due to the fact that Attorney Uhrich's allegations constitute an accurate summarization of what occurred at the August 14, 2015 custody conciliation conference.
18. Admitted. By way of further answer, Judge Tranquilli's conduct at the August 14, 2015 custody conciliation was also observed by Stephanie Anderson, Esquire, opposing counsel, who had no preexisting "personal animus" toward Judge Tranquilli. A report of Attorney Anderson's interview by the Board's investigator was also provided to Judge Tranquilli in discovery.
19. Admitted in part. It is admitted that Attorney Uhrich appeared before Judge Tranquilli in the Patterson case after Judge Tranquilli used "Ebonics" to mock his client and the opposing party and that he did not request Judge Tranquilli's recusal. It is denied that there were "multiple custody conciliations" before Judge Tranquilli. The docket reflects that custody conciliations took place on August 14, 2015, and March 3, 2017, before Judge Tranquilli.
20. This paragraph states a conclusion of law for which no response is necessary. To the extent that this averment is construed to allege facts, they are denied and strict proof of same is required. The Board will submit its argument regarding this averment in the attached memorandum of law.
21. This paragraph states a conclusion of law for which no response is necessary. The Board will submit its argument regarding same in the attached memorandum of law.
22. This paragraph states a conclusion of law for which no response is necessary. To the extent that this paragraph is construed to allege facts, they are denied and strict proof of same is demanded. The Board will submit its argument regarding this paragraph in the attached memorandum of law.
23. This paragraph states a conclusion of law for which no response is necessary. The Board will submit its argument regarding same in the attached memorandum of law.
24. This paragraph states a conclusion of law for which no response is necessary. The Board will submit its argument regarding same in the attached memorandum of law.
25. This averment fails to state any facts upon which a response may be formulated. To the extent a response is necessary, the Board incorporates herein the averments set forth above by reference as though set forth in full.
26. Denied as stated. The Board complied fully with all of its discovery obligations in this matter, and, to the extent that other discoverable materials are obtained by the Board, it will continue to comply with its ongoing duty to provide those materials to Judge Tranquilli.
27. Denied. The Board provided all exculpatory materials relevant to the charges in this matter to Judge Tranquilli. The Board's past investigation
and disposition of other complaints that may have been made against Judge Tranquilli previously and that are unrelated to the present case are not discoverable in this proceeding in that they are neither material to, nor are they exculpatory of, the charges pending against Judge Tranquilli. The Board will submit its argument regarding same in the attached memorandum of law.
28. This paragraph and its subparagraphs are not averments, and, as such, they require no response. To the extent a response is necessary, the Board responds as follows:
a. All exculpatory material within the Board's possession related and relevant to the charges against Judge Tranquilli, which constitutes the following JCB file numbers, 2020-041, 2020-054, 2020-066, and 2020-156, has already been provided to Judge Tranquilli as required by this Court's Rules. Materials that may be in the Board's possession that are unrelated to the charges in this matter have not, and will not, be provided, as those materials are neither relevant to, nor exculpatory of, the charges pending against Judge Tranquilli and are confidential within the ambit of Article V, § 18(a)(8) of the Pennsylvania Constitution and Judicial Conduct Board Rule of Procedure 17, which states that "all information and proceedings relating to a complaint and records of the Board's deliberations are confidential." As such, these materials, if any, are not discoverable in this proceeding, and the Board objects to the provision of such material, if any, in its possession.
b. This request is patently overbroad and the Board objects to it on that ground. Moreover, the request asks for the provision of materials that may be within the Board's possession that are confidential within the ambit of Article V, § 18(a)(8) of the Pennsylvania Constitution and Judicial Conduct Board Rule of Procedure 17. As such, they are not discoverable in this proceeding, and this request is objected to on these grounds. Further, these materials, if any, may contain documents privileged from discovery by the attorney-client privilege and the work product doctrine, and the Board also objects to this request on these grounds.
c. This request is premature, in that the Board is required to provide this information in its pre-trial memorandum, which, according to this Court's pre-trial scheduling order, is due on November 12, 2020.
29. This paragraph states a conclusion for which no response is necessary. The Board will submit is argument regarding same in the attached memorandum of law.
30. This paragraph is not an averment, and, as such, it requires no response. The Board will submit its argument regarding same in the attached memorandum of law.
BOARD'S ANSWER TO JUDGE TRANQUILLI'S MOTION IN LIMINE
TO EXCLUDE TESTIMONY AND REPORT OF SHAUN L.
GABBIDON , Ph.D., OR ALTERNATIVELY
OR A FRYE HEARING
1. Admitted. By way of further answer, the September 10, 2020, Report of Interview of Dr. Gabbidon conducted by the Board's investigator and attached to Judge Tranquilli's pleading as "Exhibit A" was provided to Judge
Tranquilli the same date and constituted Board counsel's effort to comply with the Court's then-telescoped discovery period in this proceeding shortly after Dr. Gabbidon's retention as an expert. It was, in Board counsel's view, an expedient means to provide Dr. Gabbidon's historical analysis of the terms "Aunt Jemima" and "Ebonics" in the context of this case to Judge Tranquilli in discovery. Additionally, it was made clear to Judge Tranquilli's counsel that Dr. Gabbidon's September 10, 2020, Report of Interview was an "initial interview," meaning that another supplemental report of interview may be forthcoming.
2. Admitted. By way of further answer, Dr. Gabbidon's curriculum vitae, which was attached to his September 10, 2020, Report of Interview, which Judge Tranquilli omitted from his "Exhibit A," is attached hereto as Board's Attachment A. The curriculum vitae speaks for itself.
3. Denied as stated. Given Dr. Gabbidon's knowledge and understanding of the history and background of the terms in question, gleaned from both his education and academic research into racism in the American criminal justice system, the Board seeks to call Dr. Gabbidon to inform the Court as to whether the terms Judge Tranquilli used and the conduct in which he engaged are based in historically negative racial stereotypes.
4. Denied as stated. Given Dr. Gabbidon's knowledge and understanding of the history and background of the terms in question, gleaned from both his education and academic research into racism in the American criminal justice system, the Board seeks to call Dr. Gabbidon to inform the Court as to whether the terms Judge Tranquilli used and the conduct in which he
engaged, i.e., his use of "Ebonics," arise from historically negative racial stereotypes of Black Americans.
5. This averment states a conclusion for which no response is necessary. To the extent that this conclusion presents factual allegations, they are denied and strict proof of same is required. The Board will submit its argument regarding same in the attached memorandum of law.
6. Denied as a misstatement of applicable law. Witnesses, including expert witnesses, have been permitted to render opinion testimony embracing the ultimate issue, so long as the testimony is based upon a properly framed hypothetical question based upon accepted or uncontested facts and so long as the testimony does not mislead, cause confusion, or prejudice, as in circumstances where an expert witness rests his opinion on an unstated evaluation of credibility based on irrelevant factors. See , e.g., Kozak v. Struth , 531 A.2d 420, 424 (Pa. 1987) discussing Lewis v . Mellor , 393 A.2d 941 (Pa. Super. 1978), and Swartz v . General Electric Co., 474 A.2d 1172 (Pa. Super. 1984). The Board will provide further argument regarding this averment in its attached memorandum.
7. This statement constitutes a conclusion for which no response is necessary. The Board will submit argument regarding same in the attached memorandum.
8. Admitted. By way of further answer, Dr. Gabbidon's proffered expert testimony is based upon his review of the facts obtained by the Board, accepted as true for the sake of his analysis, and his considerable education and academic research into racism in the American criminal justice system.
9. Denied as stated. The full quote from the case of Snizavich v. Rohm and Haas Co., 83 A.3d 191, 191 (Pa. Super. 2013) states the following:
The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this: the proffered expert testimony must point to, rely on or cite some scientific authority —whether facts, empirical studies, or the expert's own research—that the expert has applied to the facts at hand and which supports the expert's ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert opinion reflects nothing more than mere personal belief.
(emphasis added). The Board intends to call Dr. Gabbidon not as a scientific expert, but as an expert in the field of the history of racism in the United States, and in the American justice system specifically, to inform the Court as to whether the term Judge Tranquilli used ("Aunt Jemima") and the conduct in which he engaged, i.e., his use of "Ebonics," arise from historically-negative racial stereotypes of Black Americans. The Board will provide further argument regarding same in the attached memorandum of law.
10. Denied. The holding of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), as applied to Pennsylvania state courts, permits the admission of novel scientific evidence, if the methodology that underlies the proffered evidence has reached general acceptance in the relevant scientific community. See , e.g., Grady v. Frito Lay , Inc., 839 A.2d 1038, 1043-44 (Pa. 2003); see also Pa.R.E. 702(c). By its terms, Frye has no application to the present case, because the subject matter of Dr. Gabbidon's testimony is historical, not scientific, and it is grounded in his
education, training, and academic work. Clearly, education, training, and academic research are methodologies that have achieved general acceptance in academic circles. The Board will submit further argument on this averment in the attached memorandum.
BOARD'S ANSWER TO JUDGE TRANQUILLI'S MOTION IN LIMINE
TO EXCLUDE INVESTIGATORY DEPOSITION TRANSCRIPT
1. Admitted.
2. Admitted.
3. This averment constitutes argument and a conclusion of law for which no response is necessary. To the extent this averment presents factual allegations, they are denied and strict proof of same is required. The Board will submit its argument regarding same in the attached memorandum of law.
4. This averment states a conclusion of law for which no response is required. To the extent a response is required, a determination that any information contained in the transcript is relevant or has probative value cannot be made fully until such time as testimony and evidence are presented at trial that may result in information contained in the transcript becoming relevant. By way of further answer, Judge Tranquilli has a right not to testify in these proceedings, and therefore, any admissions made by him at the deposition may not become part of the record if the deposition transcript were excluded from evidence.
5. Admitted in part. It is admitted that Pennsylvania Rule 402 sets forth the general test of admissibility vis-à-vis relevance. It is denied that the deposition transcript is not relevant.
6. This averment constitutes argument and a conclusion of law for which no response is necessary. By way of further answer, dependent upon the context and purpose for which the transcript, or portions thereof, are introduced, any information contained within it may be relevant to the proceedings.
7. This averment constitutes argument and a conclusion of law for which no response is necessary. By way of further answer, a determination of relevance and admissibility depend upon the particular content of the evidence and argument, and the context in which the party seeks to introduce it.
WHEREFORE, based upon the averments set forth above and the arguments in the Board's supporting Memorandum, incorporated herein by reference as though set forth in full, the Board respectfully requests that this Honorable Court DENY Judge Tranquilli's omnibus motion in full and DENY Judge Tranquilli's motions in limine in full.
Respectfully submitted,
RICHARD W. LONG
Chief Counsel October 8, 2020
By: /s/_________
JAMES P. KLEMAN, JR.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
MEMORANDUM OF JUDICIAL CONDUCT BOARD REGARDING JUDGE TRANQUILLI'S OMNIBUS MOTION AND MOTIONS IN LIMINE
I. ARGUMENT
a. Judicial Conduct Board Rule of Procedure 15 and Laches:
In the first salvo of his segmented pleadings, Judge Tranquilli asserts that the Board's charges regarding the Patterson v. Patterson matter should be dismissed as being beyond the Board's Rule of limitations set forth at Judicial Conduct Board Rule 15. Judicial Conduct Board Rule 15 states the following:
Except where the Board determines otherwise for good cause, the Board shall not consider complaints arising from acts or omissions occurring more than four years prior to the date of the complaint, provided, however, that when the last episode of an alleged pattern of recurring judicial misconduct arises within the four-year period, the Board may consider all prior acts or omissions related to such an alleged pattern of conduct.
By way of background, in a supplemental Notice of Full Investigation (NOFI) issued to Judge Tranquilli on March 12, 2020, Board counsel notified Judge Tranquilli of the Patterson case misconduct claims. The March 12, 2020, supplemental NOFI also informed Judge Tranquilli that, when deciding to authorize issuance of the supplemental NOFI for the Patterson case misconduct claims, the Board concluded that "good cause" existed for the Board to continue its investigation into the Patterson case misconduct claims. The supplemental NOFI also stated the allegations within it, when considered with the other misconduct alleged against him in the first NOFI sent to him on February 10, 2020 (regarding the Rice , Russell , and Koskey matters), was part of a pattern of misconduct such that it would continue its investigation of the Patterson case misconduct. After the issuance of both the February 10, 2020 NOFI, and the March 12, 2020 supplemental NOFI, the Board continued its investigation of all of these matters by interviewing other witnesses, obtaining evidence, and deposing Judge Tranquilli on June 25, 2020. Thereafter, at its August 2020 meeting, the Board approved charges against Judge Tranquilli for these matters, which were then filed by Board Counsel on August 12, 2020.
Embedded within the argument made in his averments, Judge Tranquilli asserts the following: (1) the charges regarding the Patterson case are more than four years prior to Attorney Uhrich's complaint to the Board; (2) Attorney Uhrich has a "personal animus" towards Judge Tranquilli but, nonetheless, appeared before him after the August 14, 2015, custody conciliation conference giving rise to his complaint; (3) there is no evidence of a "pattern or practice that would prove the routine, repeated conduct that would allow consideration of the stale[] factual allegation made by Attorney Uhrich;" (4) Judge Tranquilli's sentencing statistics demonstrate a lack of bias or a pattern or practice of bias; and (5) the doctrine of laches prohibits consideration of these charges.
As to the first, second, and third arguments, it is true that Attorney Uhrich filed his complaint approximately six months after the technical "run date" of JCB Rule 15. It is not true that there is no evidence of a "pattern or practice that would prove the routine, repeated conduct that would allow consideration" of Attorney Uhrich's allegations.
As support for his claim that the case is time-barred, Judge Tranquilli cites to In re Lokuta , 964 A.2d 988, 1129-1134 (Pa.Ct.Jud.Disc. 2008), remanded, 968 A.2d 227 (Pa. 2009), reconsideration denied, 989 A.2d 942 (Pa.Ct.Jud.Disc. 2010), affirmed, 11 A.3d 427 (Pa. 2011), certiorari denied, 565 U.S. 878 (2011). Lokuta held that complaints against former Judge Lokuta that were from the 1990s could be considered more than four years later at her trial because her conduct demonstrated a pattern of repeated and routine misconduct. Lokuta , 964 A.2d at 1128-29.
Conspicuously, though, predictably, in his analysis of the supposed staleness of the charges arising from the Patterson case, Judge Tranquilli ignores the first clause of the first sentence of JCB Rule 15, i.e., "[e]xcept where the Board determines otherwise for good cause," as well as the Board's notification to him of its conclusion concerning the existence of "good cause" in the March 12, 2020 supplemental NOFI. This Court considered the concept of "good cause" in JCB Rule 15 in In re Zupsic , 893 A.2d 875, 886-887 (Pa.Ct.Jud.Disc. 2005) regarding complaints presented to the Board more than four years after the occurrence of the misconduct, and it laid out a series of nonexclusive factors that it found demonstrated the existence of "good cause" justifying the investigation of complaints made beyond the four-year limit of JCB Rule 15. Those factors were as follows: (1) the length of time elapsed between the mechanical "run date" of JCB Rule 15 and the ultimate complaint to the Board; (2) whether the Court held any doubt of the veracity of the underlying allegation following trial; (3) whether any complaint was made to any other party having an interest in the matter (except the Board); and (4) the seriousness of the allegation itself. Id., at 887.
Presently, it is obvious that that the lapse of time between the mechanical "run date" of JCB Rule 15 and Attorney Uhrich's complaint was a mere six months and that the Board expeditiously investigated the claims when they were presented to the Board. This can hardly equate to the spans of time wherein this Court found complaints barred by JCB Rule 15. See Zupsic , 893 A.2d at 887, citing In re Cicchetti , 697 A.2d 297, 306 (Pa.Ct.Jud.Disc. 1997) (Board precluded from presenting complaints 20 and 13 years old, respectively). Further, and perhaps, most importantly, the seriousness of a judge employing racially-insensitive language and conduct toward litigants and their lawyers to mock them is, like a judge's improper interference in a case, the "embodiment of the kind of judicial conduct the [Board] was created to eradicate." Zupsic , at 887. It is true that neither Attorney Uhrich nor Attorney Stephanie Anderson (who was also present at the custody conciliation and identified in Attorney Uhrich's complaint) complained about the conduct immediately after it happened and that this Court has not yet had the benefit of live testimony in this case. However, Board counsel proffers that Attorney Uhrich's version of events is corroborated by Attorney Anderson, which is another factor missing from Judge Tranquilli's analysis. The fact that Attorney Uhrich has "animus" toward Judge Tranquilli does not obviate the fact that the Board's investigation demonstrated that another person, with no pre-existing "animus" toward Judge Tranquilli, also observed the conduct in question and reported it to the Board after being identified by Attorney Uhrich. Accordingly, Attorney Uhrich's "animus" toward Judge Tranquilli, and whatever reasons that underlie it, is of little value in assessing whether the Board should have continued to investigate the matter, despite its age. Rather, the slight delay in the reporting of the conduct, the seriousness of the conduct itself, and its corroboration by an independent witness suffice to demonstrate that the Board had "good cause" to investigate the Patterson case misconduct and that its investigation was not time-barred by JCB Rule 15. Zupsic , at 887-888.
Moreover, contrary to Judge Tranquilli's strained reading of Lokuta , the acts alleged against him in the Board Complaint do, in fact, constitute a pattern of demeaning conduct by him toward lawyers and litigants. This pattern of demeanor-based misconduct began temporally in 2015 with Patterson (though this was not known by the Board until the filing of the complaint in 2020) and continued through the other cases identified in the Board's charges in the complaint, the most recent of which was Rice , which took place in the beginning of the current year. This court has never held, as Judge Tranquilli would have it, that a pattern of misconduct is demonstrated only where a judge engages in a routine, nonstop escapade of morally repugnant or unethical behavior, though such was certainly the case in Lokuta. See Lokuta , 964 A.2d at 1129-1134, but cf. Zupsic , 893 A.2d at 885-886 (finding that a pattern of misconduct may exist where a judge engaged in improper contact to influence case over the course of two conversations spanning four-year limitations period, however Board could not establish that second conversation took place within limitations period). Rather, the Board demonstrates a pattern of misconduct where it shows that the conduct alleged was of a "repeated, routine or of a generalized nature." See Lokuta , 964 A.2d at 1128.
Here, Judge Tranquilli acknowledged in the Board's investigation that he uses anecdotes or phraseology from literature and pop culture in court to illustrate contested issues. When one considers that Judge Tranquilli used anecdotes or phraseology from literature or pop culture to commit similar but separate instances of demeanor-based misconduct over a period of five years by directly mocking or belittling people subject to his authority or, in the Rice case, mocking them behind their back, it is obvious that his misconduct was "repeated." Id. Though Board counsel recognizes that the repetitions here were not a daily occurrence or exact repeats of the prior episode, if one analogizes to the criminal law, a serial offender remains so despite the fact that his criminal episodes may be separated by spans of time and bear slight differences. See , e.g., Commonwealth v. Frank , 577 A.2d 609, 614 (Pa. Super. 1990) (discussing "common scheme" exception to exclusion on prior bad acts evidence); see also Commonwealth v. Cosby , 224 A.3d 372, 402 (Pa. Super. 2019), appeal granted in part, ___ A.3d ___, 2020 WL 3425277 (Pa. 2020) (semble). Accordingly, the Patterson case misconduct in 2015 was merely the first instance of a pattern of similar misconduct by Judge Tranquilli that concluded in 2020 with the Rice case misconduct and, as such, falls within the "pattern" exception to the four-year limitation period in JCB Rule 15. See Lokuta , 964 A.2d at 1128.
Judge Tranquilli's laches argument is equally baseless. Generally, the affirmative defense of laches requires a defendant to prove (as the moving party) that the complaining party was guilty of want of due diligence in failing to institute his action to another's prejudice. Lokuta , 964 A.2d at 1131 (citations omitted). The prejudice prong is established where, for example, witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim. Id. (citations omitted). In other words, the application of the defense of laches requires not only an unjustified delay, but also that the opposing party's position or rights be prejudiced as a result of the delay. Id. In cases where, as here, the Commonwealth is the complaining party, the party asserting laches must make a "stronger showing" that laches applies to bar the Commonwealth from prosecuting its claim. Id., at 1131, FN 59 (citations omitted).
Presently, Judge Tranquilli makes no showing whatsoever that the Board failed to act with due diligence when investigating the Patterson case misconduct. Indeed, the facts of the investigation establish the opposite. As noted above, the Board received Attorney Uhrich's complaint in the midst of its investigation of the other allegations ultimately charged against Judge Tranquilli, and it acted expeditiously to conclude the investigation within six months. Rather, Judge Tranquilli centers his claim on the fact that Attorney Uhrich failed to act with due diligence in reporting the Patterson case misconduct to the Board and that this failing attaches to the Board's conduct in investigating the matter. See , e.g., Lokuta , 964 A.2d at 1131-1132. While it is clear that Attorney Uhrich could have complained of the Patterson case misconduct sooner, i.e., within the Board's four-year limitations period, his failure to do so does not arise to the same level of the failure of a "victim" to report a serious criminal assault such that the fact of the assault is cast into doubt, as was the case in Lyness v. Commonwealth State Board of Medicine , 561 A.2d 362 (Pa. Commw. 1989), reversed on other grounds by 605 A.2d (Pa. 1992), a case cited by both this Court in Lokuta , at 1131-1132, and Judge Tranquilli in his argument. Rather, Attorney Uhrich was a "witness" to serious judicial misconduct, not its intended target, though, in truth, the behavior reported could be deemed offensive to anyone. Assuming for the sake of argument that Attorney Uhrich should have reported the Patterson case misconduct, the doctrine of laches still did not bar the Board from either investigating or resolving the Patterson case misconduct by reaching a probable cause determination and filing formal charges.
To explain, as is the case with his implied claim of laches against the Board directly, Judge Tranquilli fails to demonstrate how he was prejudiced by the delay in this case. Lokuta , at 1131-1132. The persons who were witnesses to Judge Tranquilli's conduct (Attorneys Uhrich and Anderson) charged in the Board complaint are still living and available to testify; and they have provided detailed statements to the Board regarding Judge Tranquilli's conduct that formed the basis for the charges in the Board Complaint. Further, Judge Tranquilli has already been provided with these statements in discovery. Further, Judge Tranquilli has not claimed an absence of memory of the Patterson case misconduct; rather, he denies it occurred. As such, Judge Tranqulli's ability to formulate a defense has not been prejudiced by the delay between the initial complaint to the Board from Attorney Uhrich and the Board's investigation, which led to the ultimate filing of charges in this matter. Lokuta , at 1131-1132. Lastly, given the Board's status as a Commonwealth agency, Judge Tranquilli is required to make a "stronger showing" that laches should bar the Board's complaint against him. Id., at 1131 (citation omitted). In his omnibus motion, Judge Tranquilli has not made any showing, let alone a "strong" showing, that he will not be able to formulate a defense or response to the matters alleged in the Board complaint. Rather, Judge Tranquilli contends only that Attorney Uhrich's "personal animus" and the delay of his complaint to the Board give rise to the defense of laches. As in all cases, Attorney Uhrich's personal feelings toward Judge Tranquilli may bear on his credibility as a witness and his motive, but they do not establish the prejudice prong of a laches defense. Id., at 1131. Accordingly, Judge Tranquilli's assertion of laches is without merit. b. DISCOVERY REQUESTS:
Next, Judge Tranquilli asserts that he is entitled to certain information in discovery that was not given to him. Court of Judicial Discipline Rule of Procedure 401(D)(1) obliges the Board and Judge Tranquilli, without Court involvement, to exchange "[non]-privileged evidence relevant to the charges contained in the Board Complaint, documents to be presented at trial and statements of witnesses who will be called to testify[.]" (emphasis added). Additionally, when charges are filed in this Court, the Board is obliged to provide the judicial officer, in this case, Judge Tranquilli, with "any exculpatory evidence relevant to the charges contained in the Board complaint." See CJDRP 401(E).
Here, the Board founded its charges in the Board Complaint on the results of the investigations it opened at Board file nos. 2020-041 (filed by Attorney Joseph Otte regarding the Rice case misconduct); 2020-054 (filed by President Judge Clark regarding same); and 2020-066 (filed by Attorney Uhrich regarding the Patterson case misconduct). These complaints to the Board, the investigatory material obtained for them, and any other information that is discoverable under CJDRP 401(D)(1) and 401(E) within the Board's possession at the time of the filing of the charges have already been provided to Judge Tranquilli. Additionally, and, in an abundance of fairness, the Board authorized the release of the complaint it received at 2020-156 to Judge Tranquilli upon his post-Board Complaint request, because that complaint was filed subsequent to 2020-041, 2020-054, and 2020-066; because the information contained within it was relevant to the charges derived from those complaints to the Board; and because it potentially constituted a statement of a witness who was also interviewed for complaints 2020-041, 2020-054, and 2020-066. The Board denied the remainder of Judge Tranquilli's request (which included a waiver of confidentiality for the purpose of discovery disclosures), which requested the same additional information he requests presently. See JCB Rule 18(A)(1), (A)(2) (judicial officer subject to complaint may request matter be made public or may waive confidentiality for a particular purpose; JCB has discretion to make disclosures it deems appropriate). Therefore, Judge Tranquilli's present request is, in part, disingenuous, as he has already received a significant portion of the material he now requests this Court to require the Board to provide to him. Moreover, and more importantly, the remainder of Judge Tranquilli's request is not mandatory under extant law.
To explain at the peril of stating the obvious, exculpatory evidence "relevant to the Board's previous and understood to be forthcoming findings of a lack of probable cause," (emphasis added), cannot possibly be evidence that is exculpatory of, or relevant to the charges contained in the Board Complaint, as the filing of a Board Complaint is a demonstration that the Board found probable cause to file the charges contained within it and no other matters. (emphasis added); see Pa. Const., Art. V. § 18(a)(7). The same analysis is true for his request of "records of all proceedings before the Board concerning [Judge Tranquilli], including but not limited to meeting minutes, subpoenas, statements, testimony, and non-privileged memoranda. To the extent that these documents pertaining to "previous and forthcoming findings of a lack of probable cause" on the part of Judge Tranquilli exist and are in the Board's possession, they are obviously neither relevant to, nor exculpatory of, the charges in the present Board Complaint, which is the result of a finding of the presence of probable cause for the charges. Judge Tranquilli's waiver of confidentiality does not affect this analysis. See In re Hasay , 686 A.2d 809 (Pa. 1996).
Our Supreme Court addressed the exact issue raised presently by Judge Tranquilli in In re Hasay , 686 A.2d at 815, a case cited by Judge Tranquilli in his omnibus pre-trial motion on this point. In Hasay , the Supreme Court held that
a waiver of confidentiality by a judicial officer pursuant to § 18(a)(8) does not automatically entitle him to receive all the confidential information, including the complaint, acquired by the board in the course of its investigation. A waiver of confidentiality under § 18(a)(8) affects proceedings before the board prior to their termination, which may occur either upon the board's dismissal of a complaint for lack of probable cause or upon the commencement of public proceedings in the Court of Judicial Discipline.Hasay , 686 A.2d at 815.
Here, as was the case in Hasay , because the case is now at the formal charge stage in this Court, Judge Tranquilli's waiver of confidentiality is meaningless because his constitutional guarantee of confidentiality for Board proceedings has ended. Id., at 814. Accordingly, in order to receive the additional requested information, Judge Tranquilli must demonstrate that the requested material "is 'essential to a fair determination,'" which is to say that the material requested is relevant, material, and helpful to the defense. Id., 686 A.2d at 815. A respondent judge's boilerplate allegation will not suffice, in that such allegations fail to state with particularity how the requested material was relevant, material, and helpful to the defense. Id. So it is the case with Judge Tranquilli's request, in that he claims the unproduced information, if it exists, will enable him to "fairly and adequately address the allegations contained in the Board Complaint and to fulfill [his] right to challenge whether the Board violated its procedures in the first instance." Omnibus motion, at ¶ 29. This language is boilerplate of the kind condemned by Hasay , and it, too, presents a non-sequitur. Id. If Judge Tranquilli's aim is to fairly and adequately address the allegations in the Board Complaint, it is puzzling that he seeks material unrelated to the charges in the Board complaint to do so.
In the face of this obvious disconnect, Judge Tranquilli asserts that the information requested "certainly goes to demonstrate the lack of any pattern or practice of animus" by him. This proffer, as explained above, is entirely off point, in that the Board need not show that, day after day, Judge Tranquilli engaged in racially-insensitive or racist behavior in order to demonstrate a pattern of judicial misconduct to avoid the time-bar of JCB Rule 15. Lokuta , 964 A.2d at 1129-1134, but cf. Zupsic , 893 A.2d at 885-886 (finding that a pattern of misconduct may exist where a judge engaged in improper contact to influence case over the course of two conversations spanning four-year limitations period, however Board could not establish that second conversation took place within limitations period). As stated previously, a serial offender is a serial offender even if their aberrant conduct is separated by spans of time. Frank , 577 A.2d at 614; see also Cosby , 224 A.3d at 402. In any event, regardless of the implications a pattern of conduct may have on the Board's limitations period, the Board is not required to show any "pattern" of misconduct at all in order to prove sanctionable misconduct. See In re Eagen , 814 A.2d 304, 306 (Pa.Ct.Jud.Disc. 2002). Rather, the finding of one single violation by this Court would subject Judge Tranquilli to the entire appropriate range of sanctions. Id., at 306-307. Accordingly, even if Judge Tranquilli could segment his episodes of misconduct one from the other by the requested information, it still would not disprove the allegations against him and it would not insulate him from sanction. Id., 814 A.2d at 306. When viewed in this light, the irrelevance of the requested information is patently clear. Therefore, inasmuch as Judge Tranquilli cannot articulate a basis for the requested material beyond boilerplate assertions, suppositions, and surmise, this Court should deny his discovery request. Hasay , 686 A.2d at 815. c. Admission of the testimony of Shaun Gabbidon , PhD.
In his first motion in limine filed September 28, 2020, Judge Tranquilli claims that this Court should not permit Dr. Gabbidon to testify as an expert on behalf of the Board or alternatively that the Court should conduct a "Frye Hearing" to determine the admissibility of Dr. Gabbidon's testimony.
The decision whether to qualify an expert witness lies within the discretion of the trial court. Miller v. Brass Rail Tavern , Inc., 664 A.2d 525, 528 (Pa. 1995). A trial court's standard for the qualification of an expert witness in this Commonwealth is a liberal one. Id. The trial court must determine whether the putative expert witness has any reasonable pretension to specialized knowledge on the subject under investigation. Id. If the putative witness does, he may testify and the weight to be given to such testimony is for the trier of fact, which, in this instance, is also the trial court. Id. It is not a necessary prerequisite that the witness is possessed of all the knowledge in a given field, only that he possesses more knowledge that is otherwise within the ordinary range of training, knowledge, intelligence, or experience. Id.
Against this backdrop, a simple review of Dr. Gabbidon's curriculum vitae in conjunction with his September 10, 2020 report of interview makes it clear that he has a reasonable pretension to specialized knowledge in the fields of the history of racism in America, and in the American criminal justice system, in particular. Dr. Gabbidon possesses a Ph.D. in criminal justice, teaches the subject matter; authored many writings on the subject of racism in the justice system; conducted speaking engagements on the subject; and received distinction due to his scholarship and other awards. See Board's Attachment A. Consequently, it is clear that he possesses more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence, or experience on the subject matter of racism in America and racism in the American criminal justice system. As such, Dr. Gabbidon's analysis and opinion as to whether the terms Judge Tranquilli used and the conduct in which he engaged, i.e., his use of "Ebonics," arise from historically negative racial stereotypes of Black Americans, will assist the Court in its fact-finding function in this case, and he should be qualified as an expert witness. Miller , 664 A.2d at 528; see also Commonwealth v. Cottam , 616 A.2d 988, 9979 (Pa. Super. 1992) (acceptance of expert testimony from minister regarding concept of "tithing" in Christian religious practice was appropriate because average layperson may not know what the concept embodied).
Judge Tranquilli asserts that Dr. Gabbidon should not be permitted to testify as an expert for the following reasons: (1) Dr. Gabbidon is mistaken about the creation of the term "Ebonics;" (2) his opinion is offered as to the ultimate question as to Judge Tranquilli's guilt or innocence; (3) his testimony is based on personal belief; and (4) his testimony is controverted by Judge Tranquilli's sentencing statistics from the Pennsylvania Commission on Sentencing, which demonstrate that Judge Tranquilli does not sentence minorities more harshly than whites.
First, an expert's mistake in analysis, if it is, in fact, a mistake, goes not to the admissibility of the testimony, but to the weight to be given the testimony. Commonwealth v. Meals , 912 A.2d 213, 223-224 (Pa. 2006). Therefore, if Dr. Gabbidon is in error on that point, which is unlikely, Judge Tranquilli is free to introduce evidence to that effect and/or to argue to this Court that Dr. Gabbidon's conclusions should be discounted or ignored, but any countervailing evidence Judge Tranquilli may assert does not render Dr. Gabbidon's testimony inadmissible, as Judge Tranquilli now claims. Id., at 223-224. Accordingly, this assertion fails.
Judge Tranquilli's assertion regarding Dr. Gabbidon's discussion of the ultimate issue in his report of interview is, in fact, a misstatement of the applicable law. Pennsylvania Rule of Evidence 704 states clearly that "[an] opinion is not objectionable merely because it embraces an ultimate issue." To that end, Pennsylvania Courts have permitted witnesses, including expert witnesses, to render opinion testimony embracing the ultimate issue, so long as the testimony is based upon a properly framed hypothetical question based upon accepted or uncontested facts, and so long as the testimony does not mislead, cause confusion, or prejudice, as in circumstances where an expert witness rests his opinion on an unstated evaluation of credibility based on irrelevant factors. See , e.g., Kozak v. Struth , 531 A.2d 420, 424 (Pa. 1987) discussing Lewis v . Mellor , 393 A.2d 941 (Pa. Super. 1978), and Swartz v . General Electric Co., 474 A.2d 1172 (Pa. Super. 1984). Recently, in Commonwealth v. Huggins , 68 A.3d 962, 967 (Pa. Super. 2013), the Superior Court held that a police-witness may testify, and offer opinions, in the capacity as both a lay and an expert witness on factual matters that may embrace the ultimate issues to be decided by the fact-finder. Commonwealth v. Alicia , 92 A.3d 753, 760 (Pa. 2014), the case cited by Judge Tranquilli in his omnibus motion, holds only that an expert cannot testify as to the credibility of a witness vis-à-vis the truthfulness of their confession and thereby invade the jury's credibility weighing function. Alicia 's holding, then, in essence, is merely a summarization of the discussion of the prohibition on experts weighing credibility previously discussed in Kozak. Id., 531 A.2d at 424. Accordingly, if responding to a properly framed question, Dr. Gabbidon may render opinions that embrace an ultimate issue, i.e., whether Judge Tranquilli's use of the phrase "Aunt Jemima" and his use of "Ebonics" were rooted in historically negative racial stereotypes of Black Americans. Id., 531 A.2d at 424. Finally, and of equal importance to these precepts, is the consideration that the judges on this Court sit as both judges of the law and the facts. As such, the law presumes that this Court is able to disregard inadmissible evidence and consider only competent evidence. Commonwealth v. Davis , 421 A.2d 179, 183 FN 6 (Pa. 1980). As such, Judge Tranquilli's argument fails.
Judge Tranquilli's claim that Dr. Gabbidon's opinion is based on personal belief is belied by both the content of his report of interview and the content of his curriculum vitae. The first three paragraphs of the report of interview demonstrate that Dr. Gabbidon's opinions on the history of the phrase "Aunt Jemima" and the history of the term "Ebonics," and their offensiveness, were, by implication, based upon his prior knowledge and training and his review of the facts presented in "the Board's complaint and other materials associated with the [Board's] case against Judge Tranquilli." The fact that these opinions are not as complete as Judge Tranquilli would like them to be was the result of the telescoped discovery period first directed by this Court. The Board has the ability to supplement this report and, if necessary, will do so at the appropriate time.
Judge Tranquilli's contention that Dr. Gabbidon's testimony is contravened by his sentencing statistics is, simply, irrelevant for the purpose of whether to qualify Dr. Gabbidon as an expert. If Judge Tranquilli thinks that his sentencing statistics somehow undo the racially-insensitive conduct alleged here, he is free to present them in evidence to undermine Dr. Gabbidon's opinion. Meals , 912 A.2d at 223-224.
Lastly, Judge Tranquilli's request for a "Frye hearing" regarding Dr. Gabbidon's expert testimony is inapplicable to the present circumstance. The holding of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), as applied to Pennsylvania state courts, permits the admission of novel scientific evidence, if the methodology that underlies the proffered evidence has reached general acceptance in the relevant scientific community. See , e.g., Grady v. Frito Lay , Inc., 839 A.2d 1038, 1043-44 (Pa. 2003); see also Pa.R.E. 702(c). Importantly, Frye and its progeny reach only to the methods, and not the ultimate conclusion, of the proffered expert in arriving at the conclusion to be presented in testimony. Grady , 839 A.2d at 1047. By its terms, Frye has no application to the present case, because the subject matter of Dr. Gabbidon's testimony is historical, not scientific, and it is grounded in his education, training, and academic work. Clearly, education, training, and academic research are methodologies that have achieved general acceptance in the academic circles. Therefore, though Judge Tranquilli may dispute Dr. Gabbidon's opinion, he cannot use Frye to challenge the methods used to arrive at that opinion. Id. d. Admission of Judge Tranquilli's Deposition Transcript:
In his second motion in limine filed September 28, 2020, Judge Tranquilli contends that the Board should be precluded from entering the entire transcript into evidence in its case-in-chief. Judge Tranquilli grounds this assertion on the argument that "the overwhelming majority of the questioning of [Judge Tranquilli at the deposition] regarded matters that were well outside the Board's [NOFI and supplemental NOFI] and which are well outside of the factual allegations in the current complaint" which mirrors the NOFIs. See Second Motion in limine, at ¶ 3. Thus, Judge Tranquilli claims that any information in the transcript beyond the specific, factual allegations contained in the Board Complaint is wholly irrelevant and only those portions of the transcript dealing with those specific allegations should be admitted. Id., at ¶¶ 4,7.
Judge Tranquilli's position is puzzling in several respects. First, Judge Tranquilli both misapprehends the purpose of a NOFI and fails to recall its precise language. A NOFI is merely a notice to the target judicial officer that the Board is conducting a full investigation of specific allegations. See JCB Rule 30(B)(1), 30 (B)(2)(a). The judicial officer is also informed that the "ongoing investigation may reveal facts concerning the allegations that could change the violations charged." See JCB Rule 30(B)(2)(e). Thus, the NOFI does not limit Board counsel's questions to a target judge at a deposition. Judge Tranquilli's NOFI and supplemental NOFI contain this language. Thus, the purpose of the Notice is to offer a judicial officer the chance to respond to the allegations in the NOFI in writing prior to any probable cause determination by the Board. See Pa. Const., Art. V, § 18(a)(8) ("A justice, judge, or justice of the peace who is the subject of a complaint filed with the board or initiated by the board or of an investigation conducted by the board shall be apprised of the nature and content of the complaint and afforded an opportunity to respond fully to the complaint prior to any probable cause determination by the board.") Notably, the constitutional language upon which JCB Rule 30 ultimately derives does not specify that the "appraisal" of the "nature and content of the complaint" needs to be in writing, nor does it require that the judge's response, if any, be in writing. Id. Thus, it could be found that a judge's responses to questions at a Board deposition satisfy the constitutional directive set forth at Art. V, § 18(a)(8). Moreover, at the deposition itself, Board counsel informed Judge Tranquilli that anything he said at the deposition could be used at a forthcoming trial in this Court and that Board counsel's questions were not limited by the content of the NOFI or the supplemental NOFI. Therefore, the questions put to Judge Tranquilli by Board counsel at the deposition, and his answers, could fairly be considered supplements to both NOFIs and, in that vein, relevant and admissible in total in this proceeding as statements of a party opponent. See Pa.R.E. 803(25)(A).
Secondly, the text of the deposition transcript itself belies Judge Tranquilli's assertion that the "overwhelming majority" of the questioning regarded matters outside of the NOFI and supplemental NOFI and, ultimately, the Board Complaint. The deposition can be divided into seven sections. First, Board counsel provided an introduction and a shorthand discussion of the nature and purpose of the deposition (Section I). Then Board counsel questioned Judge Tranquilli regarding his background and ascent to the bench, which, despite his relevance argument, are matters that Judge Tranquilli has introduced into the record in this proceeding by pleading them in the first 12 paragraphs of his omnibus pre-trial motion (Section II). Board counsel then questioned Judge Tranquilli about the Patterson case misconduct and his association with the parties in that matter (Section III), and the Rice case misconduct and his association with the parties in that matter (Section IV). Board counsel then questioned Judge Tranquilli about his offensive statements at sentencing in the Russell and Koskey matters (Section V). Thereafter, Board counsel questioned Judge Tranquilli about the content of the report of his treating psychiatrist, which was appended to his NOFI response, which endeavored to explain his state of mind at the time of the misconduct alleged in the NOFI and supplemental NOFI (Section VI). Thereafter, Board counsel questioned Judge Tranquilli about his views of his own misconduct and whether such conduct, when considered with his reasons for running for the office of judge (discussed in Section I), could be viewed by a reasonable person as hypocritical on Judge Tranquilli's part (Section VII). Inasmuch as part of the present inquiry is to determine whether Judge Tranquilli acted at all times in a manner that promotes confidence in the "independence, integrity , and impartiality of the judiciary," see Board Complaint, 8/12/2020, at ¶¶ 35-40, the hypocrisy demonstrated between his background and reasons for becoming a judge and in his conduct is a relevant area of inquiry, as a hypocrite is the opposite of a person with integrity. See , e.g., Pa.R.E. 405(b)(1) (in a civil case, when a person's character or a character trait is an essential element of a claim or defense, character may be proved by specific instances of conduct). Accordingly, this Court should permit Board counsel to enter the transcript of the deposition of Judge Tranquilli into evidence in its entirety, subject to its decision on the Board's motion in limine regarding Judge Tranquilli's proposed polygraph evidence.
II. CONCLUSION
For the foregoing reasons, the Board respectfully requests that this Court deny Judge Tranquilli's omnibus motion and deny Judge Tranquilli's motions in limine.
Respectfully submitted,
RICHARD W. LONG
Chief Counsel October 8, 2020
By: /s/_________
JAMES P. KLEMAN, JR.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 VERIFICATION
I, James P. Kleman, Jr., Deputy Counsel to the Judicial Conduct Board, verify that the facts set forth in the foregoing Reply, Answers, and attached Memorandum of Law are true and correct to the best of my knowledge, information, and belief. I understand that the statements made in the foregoing Reply, Answers, and attached memorandum are subject to the penalties of 18 Pa.C.S.A. § 4904, regarding unsworn falsification to authorities. October 8, 2020
By: /s/_________
JAMES P. KLEMAN, JR.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 PROOF OF SERVICE
In compliance with Rule 122 of the Court of Judicial Discipline Rules of Procedure, on October 8, 2020, a copy of the Board's Reply, Answers, and attached Memorandum of Law was sent by UPS Overnight mail to Judge Tranquilli's counsel, John E. Quinn, Esquire, and Matthew Logue, Esquire, at the following address:
John E. Quinn, Esquire
Matthew Logue, Esquire
Quinn Logue LLC
200 First Avenue, 3 Floor
Pittsburgh, PA 15222-1512
October 8, 2020
By: /s/_________
JAMES P. KLEMAN, JR.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System that require filing confidential information and documents differently than non-confidential information and documents.
Submitted by: Judicial Conduct Board of Pennsylvania
Signature: __________
Name: James P. Kleman, Jr.
Deputy Counsel
Attorney No: 87637
Attachment A
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