In re Toothman

• Decision Date: 22 February 2021
• Docket Number: 1 JD 2020
• Parties: IN RE: Judge Farley Toothman Court of Common Pleas 13th Judicial District Greene County
• Court: Pennsylvania Court of Judicial Discipline

IN RE: Judge Farley Toothman Court of Common Pleas 13th Judicial District Greene County

1 JD 2020

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

RECEIVED AND FILED: February 26, 2021

February 22, 2021

JUDICIAL CONDUCT BOARD PRE-TRIAL MEMORANDUM

AND NOW, this 22 day of February, 2021, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board) by and through undersigned counsel, pursuant to this Court's January 13, 2021 Order and files this Pre-trial Memorandum:

A. TRIAL WITNESS LIST

The Board may call some or all of the following witnesses at trial:

1. Alexsandra Chamberlain

113 Penn Avenue

Bentleyville, PA 15314

Ms. Chamberlain may testify regarding paragraphs 4 to 39 of the Board Complaint.

2. Shayna Hugo

156 Wayne Village

Waynesburg, PA 15370

Ms. Hugo may testify regarding paragraphs 4 to 39 of the Board Complaint.

3. Brianna Evans

45 West Lincoln Street

Waynesburg, PA 15370

Ms. Evans may testify regarding paragraphs 4 to 39 of the Board Complaint.

4. Pamela Mason

10 East High Street

Waynesburg, PA 15370

Ms. Mason may testify regarding paragraphs 4 to 39 of the Board Complaint.

5. James Moore

420 Washington Road

Waynesburg, PA 15370

Mr. Moore may testify regarding paragraphs 4 to 39 of the Board Complaint.

6. Mark Zeiler

187 Preachers Road

Waynesburg, PA 15370

Mr. Zeiler may testify regarding paragraphs 4 to 39 of the Board Complaint.

7. Deborah Phillips

244 Thomas Road

Carmichaels, PA 15320

Ms. Phillips may testify regarding paragraphs 4 to 39 of the Board Complaint.

8. Marcus Simms

10 East High Street

Waynesburg, PA 15370

Mr. Simms may testify regarding paragraphs 4 to 39 of the Board Complaint.

9. Frank Pecjak

222 Cales Addition

Carmichaels, PA 15320

Mr. Pecjak may testify regarding paragraphs 4 to 39 of the Board Complaint.

10. Craig Wise

19 South Washington Street

Waynesburg, PA 15370

Mr. Wise may testify regarding paragraphs 40 to 50 of the Board Complaint.

11. Sally Cimini, Esquire

525 William Penn Place

Pittsburgh, PA 15219

Attorney Cimini may testify regarding paragraphs 40 to 50 of the Board Complaint.

12. Jeff Marshall

93 High Street

Waynesburg, PA 15370

Mr. Marshall may testify regarding paragraphs 40 to 50 of the Board Complaint.

13. Waynette Pellegrini

218 Woodies Road

Waynesburg, PA 15370

Ms. Pellegrini may testify regarding paragraphs 40 to 50 of the Board Complaint.

14. Rebecca Harris

93 East High Street

Waynesburg, PA 15370

Ms. Harris may testify regarding paragraphs 40 to 50 of the Board Complaint.

15. Christine Nash, Esquire

223 East High Street

Waynesburg, PA 15370

Attorney Nash may testify regarding paragraphs 51 to 59 and 65 to 73 of the Board Complaint.

16. David Russo, Esquire

10 East High Street

Waynesburg, PA 15370

Attorney Russo may testify regarding paragraphs 51 to 59 of the Board Complaint.

17. Adam Belletti, Esquire

54 South Washington Street

Waynesburg, PA 15370

Attorney Belletti may testify regarding paragraphs 60 to 64 of the Board Complaint.

18. James Hardisty, Esquire

223 East High Street

Waynesburg, PA 15370

Attorney Hardisty may testify regarding paragraphs 60 to 64 of the Board Complaint.

19. Jessica Phillips, Esquire

223 East High Street

Waynesburg, PA 15370

Attorney Phillips may testify regarding paragraphs 60 to 64 of the Board Complaint.

B. BOARD EXHIBITS

The Board may introduce some or all of the following exhibits at trial:

1. Transcript of the September 7, 2017 hearing in the matter of Commonwealth v. McCarty, CP-30-MD-72-2010.

2. Audio recording of the September 7, 2017 hearing in the matter of Commonwealth v. McCarty, CP-30-MD-72-2010.

3. Transcript of the October 2, 2017 hearing in the matter of Commonwealth v. McCarty, CP-30-MD-72-2010.

4. Audio recording of the October 2, 2017 hearing in the matter of Commonwealth v. McCarty, CP-30-MD-72-2010.

5. Sunoco store video surveillance recordings from September 6, 2017.

6. Commonwealth v. McCarty, CP-30-MD-72-2010, docket.

7. January 24, 2018 union grievance by Ms. Pellegrini.

8. Kiger v. Depetris, May 11, 2017 Order.

9. Kiger v. Depetris, June 2, 2017 Order to vacate May 11, 2017 order.

10. Kiger v. Depetris, June 2, 2017 Order to vacate June 2, 2017 order.

11. Kiger v. Depetris, June 7, 2017 Order regarding pickup truck.

12. Kiger v. Depetris, June 2, 2017 Order regarding sale of marital residence.

13. Transcript of the June 7, 2017 hearing in the matter of Kiger v. Depetris.

14. February 23, 2015 Administrative Order.

15. February 10, 2016 Order regarding "court reporter account".

16. Transcript of the January 24, 2018 hearing in the matter of Lewellen v. Lewellen.

17. Transcript of the April 2, 2018 hearing in the matter of Webster v. Frank.

18. August 8, 2018 correspondence from Respondent to Deputy Counsel Norton.

C. STIPULATIONS

It can reasonably be expected that opposing counsel may agree to the following stipulations:

1. Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania grants to the Board the authority to determine whether there is probable cause to file formal charges against a judicial officer in this Court, and thereafter, to prosecute the case in support of such charges in this Court.

2. From July 10, 2009, through January 3, 2021, Judge Toothman (Respondent) served as a Judge of the Court of Common Pleas of Greene County.

3. As a judicial officer, Respondent was subject to all the duties and responsibilities imposed on him by the Constitution of the Commonwealth ofPennsylvania and the Code of Judicial Conduct adopted by the Supreme Court of Pennsylvania.

4. Based on Confidential Requests for Investigation the Board investigated the matters contained in the Board Complaint.

5. As a result of its investigation, and pursuant to Article V, § 18(a)(7) of the Constitution of the Commonwealth of Pennsylvania, the Board determined that there was probable cause to file formal charges against Respondent in this Court.

6. All of the above listed exhibits, which have been provided to Respondent pursuant to C.J.D.R.P. No. 401(D)(1) and (E) are admissible and authentic.

Additionally, based on Respondent's Answer to Complaint filed on September 18, 2020, and information contained in exhibits which have been provided to Respondent pursuant to C.J.D.R.P. No. 401(D)(1) and (E), it can reasonably be expected that Respondent will agree to the following stipulations:

Christy McCarty matter

7. At all times relevant to the Board Complaint, Alexsandra Chamberlain was employed as Respondent's judicial law clerk.

8. At approximately 4 p.m. on September 6, 2017, Ms. Chamberlain was shopping in a Sunoco station convenience store in Waynesburg, Greene County, located in close proximity to the Greene County Courthouse (Courthouse).

9. Moments after Ms. Chamberlain exited the store another customer from the store, Christy McCarty, called out to her asking her about her activity in the store.

10. Ms. Chamberlain returned to the store and asked the store clerks about Ms. McCarty's question which she believed was an accusation of retail theft.

11. Ms. Chamberlain returned to the Courthouse and told Respondent about the incident.

12. Shortly thereafter, Respondent, his son George, and Ms. Chamberlain appeared at the Sunoco convenience store.

13. Respondent spoke to the two store clerks, asking them if they believed Ms. Chamberlain had committed retail theft during her earlier visit to the store.

14. The store clerks asked Respondent, his son, and Ms. Chamberlain to leave the store because they felt harassed.

15. Respondent, his son, and Ms. Chamberlain left the store, at which time Respondent called the police.

16. The police responded to the scene and investigated the matter.

17. During their investigation on September 6, 2017, the police learned of Ms. McCarty's involvement and provided Respondent with her identity.

18. After speaking with the police, Respondent returned to the courthouse.

19. No charges were filed as a result of the investigation.

20. Immediately after returning to the courthouse, at approximately 4:30 p.m., Respondent directed a court employee to obtain a copy of Ms. McCarty's court summary and all files involving Ms. McCarty.

21. At approximately 8:40 a.m. on September 7, 2017, Respondent interrupted a staff meeting in the Greene County Probation Office asking, "Who has Christy McCarty?"

22. An individual from the county probation office present in the meeting referenced in the preceding paragraph informed Respondent that Ms. McCarty was not on probation, but was doing community service in connection with a magisterial district court case.

23. Respondent immediately instructed the probation officer in charge of community service to have Ms. McCarty report to his courtroom that day rather than the site of her community service.

24. At approximately 9:30 a.m. on September 7, 2017, Ms. McCarty reported to Respondent's courtroom as directed.

25. Neither Ms. McCarty nor the Commonwealth were represented by an attorney at the September 7, 2017 proceeding.

26. Respondent should have informed Ms. McCarty of her right to counsel prior to beginning the September 7, 2017 proceeding.

27. During the September 7, 2017 proceeding, Respondent made no effort to determine if Ms. McCarty had the present ability to meet her obligation under the "order of 72 of 2010."

28. At the conclusion of the proceeding, Respondent found Ms. McCarty in civil contempt and sentenced her to incarceration in the Greene County Prison until October 2, 2017.

29. Respondent failed to carefully consider and apply the specific contempt procedures applicable to the September 7, 2017 proceeding.

30. Ms. McCarty remained incarcerated until October 2, 2017 on the civil contempt sentence.

31. On October 2, 2017, Ms. McCarty was transported from the Greene County prison to Respondent's courtroom.

32. Neither Ms. McCarty nor the Commonwealth were represented by an attorney at the October 2, 2017 proceeding.

33. Between September 7, 2017 and October 2, 2017, no payments were made in the matter of Commonwealth of Pennsylvania v. Christy L McCarty, CP 30-MD-72-2010.

Waynette Pellegrini matter

34. At all times relevant to this complaint,

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