Defense attorneys for Joan Orie Melvin said in a lengthy filing with the Pennsylvania Superior Court that the former state Supreme Court justice deserves to have the charges against her dismissed -- or at least she should be given a new trial or sentence.
The brief, filed last week, accused the trial judge, Allegheny County Common Pleas Judge Lester G. Nauhaus, of demonstrating "judicial bias" by offering "personal opinions and improperly commenting on the evidence in front of the jury," and therefore denying Orie Melvin the right to a fair trial.
"Through his words and actions, the trial court regularly and repeatedly communicated to the jury his belief that the charges against Orie Melvin had substantial merit and that her defense was not worthy of credence," wrote attorney Patrick Casey.
The 101-page brief includes eight examples the defense believes show bias against Orie Melvin, including comments the attorneys feel were derogatory toward themselves and their evidence.
The brief raises 15 questions to the appellate court in Orie Melvin's direct appeal. They include:
* Whether the prosecution violated due process to base criminal charges on alleged violations of an internal court rule governing employee conduct.
* Whether the warrant authorizing seizure of Orie Melvin's entire private email account was overbroad.
* Whether it was error to decline to appoint an out-of-county judge to preside over the case, given that Orie Melvin was previously on the Common Pleas Court and a key witness against her, Lisa Sasinoski, is the wife of a currently sitting judge.
* Whether the trial court erred in excluding evidence showing the productivity of Orie Melvin's judicial chambers "as a means of negating the theft or diversion element of the theft of service charges."
Charged with seven counts, Orie Melvin was found guilty by a jury on six, including three counts of theft of services, conspiracy and misapplication of entrusted property.
She was sentenced in May to serve three years' house arrest, pay fines, costs and restitution totaling more than $125,000, and spend three days a week volunteering at a soup kitchen.
In addition, Judge Nauhaus ordered that a photograph be taken of Orie Melvin in handcuffs and that she write a note of apology on it and send it to every jurist in the state.
The defense appealed that portion of the sentence as unconstitutional, and the state Superior Court granted a stay on that issue in November.
On Nov. 15, Judge Nauhaus issued an order staying the entirety of his sentence -- and removing Orie Melvin from house arrest -- saying he didn't want her accruing time served on the sentence during her appeal.
The defense said in its filing that the portion of Judge Nauhaus' sentence requiring the apology was never included in the written sentencing order, and therefore is a "nullity" with which Orie Melvin is under no legal obligation to comply.
As to the issue of prosecutorial misconduct, Mr. Casey claims that assistant district attorney Lawrence Claus suborned perjury from Ms. Sasinoski.
He indicated in his questioning that a handwritten note by Orie Melvin asking about specific questions related to a political candidate questionnaire, and Ms. Sasinoski agreed.
However, Mr. Casey wrote, the note related to a bar association event, and Mr. Claus knew that.
Although the defense asked for a mistrial for prosecutorial misconduct at the time, Judge Nauhaus denied it and said it was "a mistake" and he would give the jury a curative instruction.
"The prosecutor's knowing presentation of false evidence impugns the integrity of the judicial process and should not have been blindly excused as a 'mistake,' " Mr. Casey wrote.
A spokesman for the district attorney's office said he had no comment on the allegation.
The prosecution has not yet filed its response.
Although throughout the brief the defense asks for the case to be remanded for a new trial, in the instance alleging misconduct, Mr. Casey said the entire case should be dismissed.
"Dismissal is the only appropriate remedy because a prosecutor's intentional subversion of the truth-seeking process deprives a defendant of a fair trial."
Paula Reed Ward: firstname.lastname@example.org, 412-263-2620 or on Twitter @PaulaReedWard.