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Judicial Conduct Board opposes Toothman’s entry into diversion program

By Barbara S. Miller for The 4 min read
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Attorneys for the state Judicial Conduct Board took a hard line this week in the case of a Greene County judge, opposing a diversion program and saying the issues surrounding his alleged misconduct are too serious for this option.

In a document filed Wednesday with the Court of Judicial Discipline, Chief Counsel Richard W. Long and Deputy Counsel Melissa L. Norton wrote that if the allegations against Judge Farley Toothman are proven, “the misconduct he is alleged to have engaged in would likely result in the imposition of serious discipline,” and diversion programs are usually reserved for judges who are unlikely to be suspended or removed from office.

The attorneys for the Judicial Conduct Board cited a 2017 incident involving Christy McCarty and a perceived allegation of shoplifting against Toothman’s law clerk.

The judge went to the convenience store, spoke to the clerks, and called police. After learning McCarty’s name, he had her report to his courtroom the next morning.

McCarty was not represented by a lawyer, nor was she told of the nature of the proceeding. The judge found McCarty in civil contempt for failing to make a $10 monthly payment in a 2010 magisterial case and sent her to jail for 26 days.

In Toothman’s formal response to the Court of Judicial Discipline, his attorneys acknowledged that he “could have and should have handled the matter differently by exercising more restraint from the outset and following proper procedures … nuances that Judge Toothman has come to recognize with the benefit of retrospection.”

Long and Norton objected to this characterization, calling it “abysmal” that a judge with more than 10 years on the bench only came to realize that he should have followed proper procedures when he became aware of the board’s investigation and formal complaint.

“For Judge Toothman to relegate such constitutional rights to mere ‘nuances’ which he has only recently come to recognize is more than troubling; it is alarming,” the board attorneys wrote.

If the court eventually accepts Toothman’s explanation, “which essentially amounts to an admission of a complete lack of knowledge and/or concern for important constitutional rights, remedial measures such as those offered through (a diversionary program) would fall far short of the extensive legal education needed to address (Toothman’s) shortcomings as a judge,” the attorneys continued.

In a second incident, Waynette Pellegrini, a custodian in the Greene County Courthouse, filed a grievance through her union alleging work was being done in Toothman’s chambers by non-union employees.

Toothman posted a copy of Pellegrini’s grievance on a public bulletin board in the courthouse without removing her phone number.

When Greene County officials said the posting might be considered retaliation, Toothman, according to the complaint filed with the Judicial Conduct Board, “exclaimed, ‘You think I’m going to retaliate? You’re damned right I’m going to retaliate.'”

Toothman’s later response was that his “frustration boiled over,” but, according to the attorneys for the conduct board, the judge’s “inability to control his actions and words over an extended period of time when confronted with a frustrating situation indicates the remedial measures” offered by a diversion program would not be successful.

They pointed to Toothman’s conduct as being “indicative of a deeply flawed view of the power and authority of the judiciary which cannot be addressed” through a diversion program.

The attorneys for the conduct board also referenced Toothman’s handling of a case in 2017 that dealt with the division of marital property, and a 2018 closure of a hearing on a protection from abuse petition as situations beyond the scope of those addressed in a diversion program.

In June, Toothman’s, attorneys, Bethann R. Lloyd and Amy J. Coco of Pittsburgh, asked that instead of facing a public proceeding convened by the Pennsylvania Court of Judicial Discipline, he be allowed to enter the Judicial Diversion Program.

Under the Pennsylvania Constitution, the Court of Judicial Discipline has the power to remove, suspend, censure or impose “other discipline.”

A diversion program is basically meant for those with mental, physical or emotional disabilities; those who have abused drugs or alcohol; or judges who have not previously had formal disciplinary charges filed against them.

Toothman, 64, continues to hear cases while action by the Court of Judicial Discipline is pending, according to Greene County Court Administrator Sheila Rode.

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