Petition to Vacate Order of Suspension, in re Stanley M. Greenberg, Judge, Court of Common Pleas of Philadelphia.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Nix. Concurring Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this dissenting opinion.
The present matter is before the Court pursuant to the petition of Stanley M. Greenberg to vacate order of suspension entered by this Court on March 24, 1971. The Opinion and Order of this Court upon petitioner's suspension are found at In Re Stanley M. Greenberg, Judge, Court of Common Pleas of Philadelphia, 442 Pa. 411, 280 A.2d 370 (1971). This Court's suspension order followed petitioner's conviction of one count of conspiracy in violation of 18 U.S.C. § 371, on April 29, 1970, in the United States District Court for the Eastern District of Pennsylvania.
Petitioner has presented this Court with the strongest conceivable case for reinstatement of a judicial officer who has been suspended due to conviction of a crime. The strength of petitioner's case rests upon all of its facets: his exemplary reputation as a practicing lawyer and as a member of the judiciary; the unusual circumstances surrounding his trial and conviction; his outstanding service to the community, the legal profession and the courts even since his conviction
and suspension; the record compiled at a public hearing before a three-judge disciplinary court which decided not to impose disciplinary action upon petitioner as respects his position at the Bar; and, finally, the Presidential Pardon which petitioner obtained on December 5, 1973.
A review of all the circumstances briefly summarized above has convinced us that, if we are ever to permit a judge to resume his duties after a suspension due to conviction of a crime, the instant petition for reinstatement presents that situation.
Although it is, of course, not within our power to go behind the validity of petitioner's conviction collaterally, it is our duty to consider the totality of all the circumstances when determining questions pertaining to professional and judicial discipline.
Petitioner was convicted of one count of conspiracy in a federal mail fraud prosecution involving a checkwriting scheme in which petitioner's then client was the principal. That conviction, however, was obtained after a complicated trial lasting eight weeks in which the jury had initially reported itself "hopelessly deadlocked" as to petitioner. Only after being sent back for further deliberation was the jury able to return a verdict slip on which petitioner had initially been found not guilty on all counts, and later found guilty as to Count I (the conspiracy count) and not guilty as to the remaining twenty counts which comprised the substantive charges. The mark which the jury had originally placed in the "not guilty" column for Count I was crossed out and placed in the "guilty" column.
Indeed, the trial court originally did not know what to make of the verdict slip. The trial court record reveals that the trial judge stated: "The Court: I might say for the record, the Court is very concerned with this verdict. I now show it to all counsel. I don't know what it means, very frankly, as to Count I."
The facts adduced at petitioner's trial establish that he signed none of the checks involved in the check-kite scheme; that he was neither an officer nor a director of the corporations when the checks in question were misused; that he received no money from the kite; and that no bank suffered any loss as a result of any act by petitioner. These facts, together with the testimony at petitioner's hearing before the Disciplinary Court of all the attorneys involved with the trial and subsequent appeals, convince us of the likelihood that petitioner was convicted solely due to his client's misdeeds.
Petitioner's client was tried together with him and petitioner was unable to divorce himself totally from the circumstances with which he found himself surrounded, especially in the atmosphere of a joint trial. Indeed, the only person capable of fully exonerating petitioner was his former client and co-defendant. But, on advice of counsel, petitioner's former client exercised his constitutional right to refuse to testify, and petitioner lost the only witness who could definitely establish his innocence.
Petitioner's co-defendant, his ex-client, Frank Alper, was represented by the Honorable G. Fred DiBona (now Judge of the Court of Common Pleas of Philadelphia County) and later by A. Charles Peruto. At the petitioner's disciplinary hearing both testified that Alper had always insisted upon petitioner's total innocence of the entire matter. John R. McConnell, an exchancellor of the Philadelphia Bar Association, who represented petitioner at his trial, testified: "Your Honors, on my oath as an attorney this man was no more guilty of the crime than my youngest daughter." Furthermore, Bernard G. Segal, past Chancellor of the Philadelphia Bar Association and past President of the American Bar Association, I. Raymond Kremer, and William T. Coleman, each of whom represented petitioner
in his appeals, indicated their firm belief in petitioner's innocence. Richard A. Sprague, First Assistant District Attorney for Philadelphia, also testified to his belief that petitioner was the victim of a "miscarriage of justice."
The Honorable Lawrence A. Whipple, trial judge, who sentenced petitioner to a term of only six months' unsupervised probation, wrote a letter to President Nixon on April 25, 1972, in which, referring to petitioner's intention to seek a Presidential Pardon, he stated: ". . . I am thoroughly familiar with the factual background of this case and it is my judgment, considering the totality of the circumstances, that he is entitled to a pardon. . . ."
Due to petitioner's conviction, on April 7, 1972, the Committee of Censors of the Philadelphia Bar Association filed in the Court of Common Pleas of Philadelphia County a petition for a rule to show cause why petitioner should not be disciplined, by reason of his conviction, under Rule 200(d)(1) of that Court. On June 19, 1972, a three-judge disciplinary court, composed of the Honorable Herbert S. Levin, the Honorable Leo Weinrott and the Honorable Edward J. Bradley, held an evidentiary hearing which was open to the public at petitioner's request.
The hearing produced an outpouring of support for petitioner. Every segment of the Bar was represented by those who spoke of petitioner's integrity and ability with the highest possible encomiums. Both of Philadelphia's past American Bar Association Presidents, Bernard G. Segal and David F. Maxwell, testified in petitioner's behalf. Bernard G. Segal testified that ". . . in my opinion, there is no Judge in the Courts of Philadelphia who is more highly regarded than Judge Greenberg and more justifiably so." Additionally, six former Chancellors of the Philadelphia Bar Association (Bernard
G. Segal, David Berger, Louis J. Goffman, Lewis H. Van Dusen, Jr., John R. McConnell and Robert Trescher)*fn* similarly testified.
Nor was petitioner's support among the Bar limited to its Associations' highest elected officers. Then District Attorney Arlen Specter and his First Assistant Richard A. Sprague both affirmed petitioner's integrity and abilities as both lawyer and judge. Vincent J. Ziccardi, the Chief Defender of Philadelphia, concurred in their assessment. Representatives of both the plaintiffs' and defendants' civil bar also concurred as did private practitioners in the criminal bar. In addition to those already mentioned, testimonial support came from Elwood S. Levy, Robert M. Sebastian, Austin Norris, Bernard A. Smolens, Edward C. German, Donald J. Goldberg and Richard G. Phillips. Professor I. Herman Stern of Temple University and Professor A. Leo Levin of University of Pennsylvania also voiced their strong support. Especially noteworthy was the testimony of Frank C. McGlinn, presently Executive Vice President of the Fidelity Bank, which was named in the indictment of petitioner as one of the banks allegedly victimized by the check kite. Former Governor William W. Scranton submitted a letter on petitioner's behalf and also wrote to President Nixon in support of petitioner's application for a Presidential Pardon. Letters in support of the pardon were also sent to the President by the Honorable Herbert Fineman and the Honorable Joshua Eilberg.
From the date of petitioner's suspension on March 24, 1971, to September 20, 1972, petitioner acted as Supervisor of the Arbitration Program in the Court of Common Pleas of Philadelphia as well as performing
other administrative non-judicial tasks assigned to him by the President Judge. During this period, petitioner received absolutely no compensation for his services. On September 20, 1972, President Judge Jamieson appointed petitioner as Court Administrator for the Courts of Philadelphia County, a non-judicial office, and petitioner also served without pay in this position until July 2, 1973, at which time he commenced receiving remuneration for his services. Petitioner's exemplary conduct of these offices as well as his earlier handling of motion court and the civil calendar list were fully attested to by the Honorable Edward J. Blake, petitioner's predecessor as Court Administrator. It was under petitioner's guidance that the Philadelphia compulsory arbitration system was nurtured and made successful; the motion court system was revamped and revitalized, and an individual judge calendar for the civil side of the court was instituted and supervised. According to Judge Blake, petitioner held conferences and effected settlements in at least 1,000 cases between the date of his suspension (March 24, 1971) and the date of the disciplinary hearing (June 19, 1972). Because of his suspension as a judge, these settlements could only be effectuated where counsel for all parties requested petitioner's assistance. This alone speaks most eloquently of the respect that the Bar had for petitioner's integrity and fairness.
President Judge D. Donald Jamieson has also written of the outstanding services which petitioner has rendered to the Philadelphia courts:
"[Petitioner] has been of invaluable assistance to me since my appointment as President Judge. He has no peer in our judiciary in the area of civil cases. He has the respect and confidence of his fellow judges as well as all segments of the bar. He is an indefatigable worker whose average working day begins at 7:45 a.m.
and ends on most days after 6:00 p.m. As a result I can and do call upon him to expedite matters and to perform administrative functions with full confidence that they will be carried out expeditiously and efficiently . . . . The citizens of Philadelphia will be the eventual beneficiaries of the work he is doing. Litigants will be afforded their day in court much more expeditiously as a result of the projects he has innovated and on which he is now working. . . .
"All of us who know him believe without question in his innocence. He bears an excellent reputation in the community even today and until such time as he is able to return to his full judicial duties I would strongly recommend that nothing be done which would prevent our utilizing his services. . . ."
At the conclusion of the testimony, the disciplinary court asked James D. Crawford, counsel for the Committee of Censors, for the Committee's recommendation. Although the Committee was bound to file the petition, Mr. Crawford stated: "I have no question on this case . . . it has been discussed at not one but two meetings of the committee . . . and I have discussed it personally with every member of the committee. I have no question that the committee . . . is of the opinion that as of ...