The trial judge in the Joan Orie Melvin case ordered the entirety of her corruption sentence suspended Friday so she could not collect credit for time served while a piece of the sentence is under appeal.
Over the objections of the former state Supreme Court justice's defense attorney, Allegheny County Common Pleas Judge Lester G. Nauhaus ordered Orie Melvin's house arrest and probation to be temporarily lifted, and corrections officials to take all monitoring equipment out of her McCandless home.
He did so after the state Superior Court last week stayed another part of his sentence that required her to autograph apologetic photographs of herself in handcuffs and send them to judges statewide. Her defense successfully argued the apologies violated her right against self-incrimination while the appeal of her overall conviction winded through the court system.
"She's not serving my sentence! And the problem I have with that is she's banking credit for time served and I will not allow it!" Judge Nauhaus boomed, in yet another tense round of arguments with lawyers for Orie Melvin and her sister Janine Orie.
The judge had warned Thursday afternoon that he might pause the sentence while it was partially under appeal and ordered another round of arguments for Friday.
Orie Melvin's defense attorney, Patrick Casey, argued the judge was changing the sentence and did not have jurisdiction to do so while her conviction was under appeal. "To change that is a new sentence, and that's unconstitutional," Mr. Casey said.
Orie Melvin and Orie were found guilty of using judicial and legislative staff for another sister, former state Sen. Jane Orie, to run Orie Melvin's election campaigns in 2003 and 2009.
While the judge's order Friday was odd, said Wes Oliver, a criminal law professor at Duquesne University, it left the defense in an awkward position.
"I don't know how the defendant can really object to being let loose from a condition of punishment," he said. "It's analogous to being sentenced to four years in jail and the judge saying, 'I'm not sure about this sentence so I'm going to turn the defendant loose while the appeal is pending.' I'm not sure that defendant can insist on going to jail."
Yet "this whole thing seems odd," Mr. Oliver said in an interview. "It's a live issue as to whether the judge had the jurisdiction now that he's lost the case to the appellate process. ... It's also a live question how the defense is injured in any way by the fact she's essentially being turned loose by the judge."
Judge Nauhaus had ordered Orie Melvin to serve three years under house arrest, he said Friday, "but I have no idea how long this case will take to be resolved. In order to preserve the sanctity of my sentence, I'm going to order a stay."
It will be up to the higher court again to decide the matter, the judge told Mr. Casey toward the end of the 17-minute hearing in his Frick Building courtroom.
"In this room -- and I hate to say this -- I'm right. I know you disagree. I know you're going to file an appeal. ... At the end of the day, the Superior Court will decide who is correct."
Neither Mr. Casey nor the lead prosecutor in the case, assistant district attorney Lawrence Claus, would comment after the hearing.
Tim McNulty: email@example.com or 412-263-1581. Follow the Early Returns blog at www.post-gazette.com/earlyreturns or on Twitter at @EarlyReturns. First Published November 15, 2013 11:28 AM