Former state Supreme Court Justice Joan Orie Melvin still has to say she’s sorry.
She just doesn’t have to do it in pictures.
The Pennsylvania Superior Court on Thursday upheld Orie Melvin’s conviction on six criminal counts, as well as the sentence imposed on her by Common Pleas Judge Lester G. Nauhaus requiring her to serve three years of house arrest, volunteer in a soup kitchen and pay a $55,000 fine.
But the three-judge panel found that the requirement that Orie Melvin write letters of apology to every jurist in the state on a photograph of herself in handcuffs taken the day of sentencing was too much.
“The trial court unquestionably staged the photograph for maximum effect,” wrote Judge Christine Donohue. “At the time it was taken [immediately after sentencing], Orie Melvin was no longer in police custody and was otherwise free to go home to begin house arrest. She was not in restraints at that time, and the trial court directed that she be placed in handcuffs only to take the photograph.
“The trial court’s use of the handcuffs as a prop is emblematic of the intent to humiliate Orie Melvin in the eyes of her former judicial colleagues.”
But the three-judge panel continued that it would enforce the idea of writing apology letters because it “addresses the trial court’s intent to rehabilitate her by requiring her to acknowledge her wrongdoing.”
Orie Melvin argued on appeal that requiring the apology letters was a violation of her right to protect against self-incrimination.
The court disagreed.
“We are aware of no federal or Pennsylvania state law, and Orie Melvin has not cited to any, that supports the notion that the right against self-incrimination extends beyond the pendency of a direct appeal,” Judge Donohue wrote. “As a result, we must conclude that Orie Melvin is not entitled to relief from the apology letters requirement on constitutional grounds after her direct appeal has been decided.”
Orie Melvin was found guilty last year of six of seven counts against her, including theft of services, conspiracy and misapplication of entrusted property.
In her appeal, she raised 15 issues to challenge stemming from the trial. Among them: whether it violated due process to charge her criminally for violating internal court rules; whether the search warrants to seize information from her private email account were overbroad; whether it was an error to allow an Allegheny County judge to try the case; whether her case should have been joined with her sister Janine’s; whether the trial court erred by not allowing her to present evidence of how productive her chambers were; and whether Judge Nauhaus deprived her of a fair trial by offering improper comments and personal opinions before the jury.
The Superior Court opinion, which was joined by Judges John Musmanno and Paula Ott, addressed each issue in order.
The panel dismissed Orie Melvin’s argument on the separation of powers and whether she simply violated court rules prohibiting political activity.
“None of the crimes for which she was prosecuted or convicted specifically proscribes political activity. Instead she was prosecuted for the use, or rather the misuse, of her judicial staff in violation of criminal statutes prohibiting the diversion of services belonging to the commonwealth to her own personal benefit. The political nature of the conduct did not serve as the basis of the criminal conviction,” the Superior Court found.
Although the appellate court agreed with Orie Melvin that the search warrants for her email were overbroad, the panel found that it was a harmless error in the trial.
The panel also found, like Judge Nauhaus at trial, that the evidence of Orie Melvin’s chambers’ productivity was not relevant.
“To establish a theft of services under [Pennsylvania law], the commonwealth only had to establish that Orie Melvin utilized her judicial staff for purposes other than judicial work. The only appropriate inquiry ... is whether Orie Melvin required her judicial staff to perform, for her personal benefit, non-judicial [i.e., political] duties, and it is irrelevant that they also performed their judicial tasks.”
As for addressing Judge Nauhaus’ allegedly improper comments, the Superior Court found that Orie Melvin did not properly argue them in her appellate briefs, and therefore, they were waived.
In a separate opinion on Janine Orie’s case, the Superior Court affirmed her conviction, as well, but threw out the provision of her sentence requiring that she write apology letters to staffers she required to do political work, as well as her own family members. Orie objected to the requirement, saying that Judge Nauhaus never issued a written sentencing order requiring the letters. The Superior Court agreed.
“The trial court sentenced Orie by written order dated May 7, 2013, and this written order makes no mention of any requirement or condition that she write apology letters. The trial court did not thereafter amend its written sentencing order to include such a requirement or condition.”
Paula Reed Ward: email@example.com or 412-263-2620. First Published August 21, 2014 2:49 PM