The question then left for a three-judge panel of the state Superior Court which heard oral argument on Tuesday is: What should be done about it?
Defense attorney Patrick Casey argued that the rest of Orie Melvin’s sentence — three years of house arrest — should stand and be served out.
“The sentencing judge must include conditions of sentence in the written order,” Mr. Casey said.
“Does it make that condition a nullity?” asked Superior Court Judge Christine Donohue.
“It’s a nonevent,” Mr. Casey responded.
But deputy district attorney Michael Streily told the court that without the apology letters, the entire case should be remanded for resentencing.
“The commonwealth did not ask for them, and we do not want them,” he said. “We believe Joan Orie Melvin should go to jail.”
The issue of the apology letters was the primary focus during 50 minutes of argument at the Lawrence County Courthouse where the Superior Court was sitting in a special session. Orie Melvin was found guilty in February 2013 of six criminal counts, including theft of services, conspiracy and misapplication of entrusted funds.
Orie Melvin did not attend Tuesday’s argument, but her husband, Greg, and daughter, Casey, did.
Judge Donohue called it a “problem” that Judge Nauhaus failed to include the letters in his written order.
Mr. Streily did not disagree.
Without the apology letters, the prosecutor argued, the court’s entire sentencing scheme is disrupted.
“Judge Nauhaus constructed this very, very bizarre sentence based on this written apology letter,” Mr. Streily said. “If the foundation of the sentence doesn’t exist, then the sentence doesn’t exist.”
He noted that Judge Nauhaus specifically noted Orie Melvin’s “arrogance” at sentencing when ordering the apology.
“He was going to humiliate her. He was going to teach her a lesson,” Mr. Streily continued. “I’m offended by the fact it happened. It’s outrageous.”
He characterized Judge Nauhaus’ remarks at sentencing as “caustic” and “sarcastic.”
In November, Judge Nauhaus stayed Orie Melvin’s entire sentence pending the outcome of her appeal.
Mr. Casey argued Tuesday that Judge Nauhaus no longer had jurisdiction of the case at the time he issued the stay.
“We lift the stay and that’s it?” Judge Donohue asked. “Is that what you’re asking us to do?”
“Yes,” Mr. Casey answered.
But Mr. Streily told the panel, which also included Judges Paula Ott and John Musmanno, if the stay is lifted and the letters remain a condition of Orie Melvin’s punishment, the prosecution will not further appeal the issue.
As the session began, Mr. Casey said he also wanted to address four other issues at trial, which he believes warrant either the dismissal of charges or a new trial.
They included Orie Melvin’s contention that a search warrant obtained for her personal email account was overbroad; that the allegations against her were a matter of Supreme Court policy, and not criminal in nature; that Judge Nauhaus violated procedure by instructing the jury an hour after it began deliberating on the issue of accomplice liability when it had not been previously requested by the prosecution; and that there was prosecutorial misconduct.
Immediately following the argument in Orie Melvin’s case, the court also heard from the defense for her sister Janine Orie, who was tried and convicted with her.
Orie worked on Orie Melvin’s staff and was charged as part of the conspiracy alleged by the prosecution that the sisters used both judicial and legislative staff belonging to former state Sen. Jane Orie, to run Orie Melvin’s election campaigns. Janine Orie’s attorney,
James DePasquale, told the court that his client should not have been retried with Orie Melvin because double jeopardy should have attached following the first trial of Jane and Janine Orie, which ended in a mistrial in the spring of 2011 following the discovery of forged documents.
“Those documents had nothing to do whatsoever with Janine Orie,” Mr. DePasquale said. “Double jeopardy clearly attached to Janine Orie.”
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