Former state Supreme Court Justice Joan Orie Melvin's court-ordered mea culpa will have to wait -- at least for now.
The Pennsylvania Superior Court issued an order Wednesday staying the portion of her criminal sentence requiring her to write apology notes on photographs of herself in handcuffs pending the outcome of her direct appeal.
The defense requested the stay arguing that such an apology would violate Orie Melvin's right against self-incrimination.
In a 17-page opinion, a three-judge panel of the court agreed.
Judge Christine L. Donohue wrote that Orie Melvin's conviction is on direct appeal, and thus there remains a chance it could be overturned, leading to a retrial.
"While the requirement that she write apology letters does not involve potentially incriminating testimony in a courtroom, it nevertheless creates evidence that could possibly be used against her in a later criminal proceeding," Judge Donohue wrote.
In her direct appeal, Orie Melvin alleges 21 trial court errors as grounds for reversal of her conviction. Included among them is the requirement in her sentence to write apology notes to all judges across the state, which she said violates her right against self-incrimination.
"While this panel takes no position regarding the merits of any of the issues raised by Orie Melvin on appeal, the potential for a remand and retrial exists," Judge Donohue wrote. "If such an eventuality occurs, it is possible that her apology letters could be used as evidence against her."
The court noted that Allegheny County Common Pleas Judge Lester G. Nauhaus, who sentenced Orie Melvin, said on the record the apology letters could not be used by the government against her. But the Superior Court panel said it did not agree that the admonishment provides ample protection. "The trial court's statement does not grant Orie Melvin immunity from prosecution and places no enforceable limitations on the commonwealth," Judge Donohue wrote.
The panel found that while the state Supreme Court has not "squarely" decided whether the privilege against-self-incrimination survives the direct appeal process, similar cases indicate that it does.
"For present purposes, we need not, and will not, determine whether the portion of Orie Melvin's sentence requiring apology letters is ultimately illegal, either on constitutional or statutory grounds," the court wrote.
Orie Melvin was found guilty in February of theft of services, conspiracy to tamper with evidence and misapplication of entrusted property. Judge Nauhaus sentenced her in May to three years of house arrest with electronic monitoring and to pay $55,000 in fines, serve time weekly in a soup kitchen and have her photograph taken in handcuffs, on which she was to write a letter of apology to every jurist in Pennsylvania.
In arguing in favor of the apology letters, the prosecution said Orie Melvin waived her privilege against self-incrimination at sentencing when she apologized in court to her family.
At the time, Orie Melvin said, "Judge, the most important job I've ever held in my entire life is that as of a mother to my five daughters and my son.
"I have always prided myself in being a role model to my children," she continued, turning to look at them in the gallery. "And I am sorry for all the loss, suffering and pain you have endured for the past five years. I'm saddened and sorry for the circumstances that bring me before the court today."
But the Superior Court disagreed with the prosecution's interpretation of those comments. "In our view, Orie Melvin's brief statement to her children was not incriminating, and thus cannot serve as a basis for finding a waiver of the privilege here," the panel wrote. "Read in context, her remarks constitute nothing more than an acknowledgement of her regret that her children have suffered as a result of her legal troubles."
Last month, Judge Nauhaus called Orie Melvin to court for a possible violation hearing because she had not yet completed the letters of apology.
Although he spent several minutes criticizing the defense and its tactics, Judge Nauhaus did not find Orie Melvin in violation. The prosecution has argued that if the former justice wants to challenge part of her sentence, then she must challenge the whole thing because the letters are part of Judge Nauhaus' sentencing scheme. Without them, the DA's office argued, she should be entirely resentenced and face potential incarceration.
Although the Superior Court refused to issue such an order, it did not preclude that possibility. "The appropriate audience for the commonwealth's argument is the merits panel of this court," Judge Donohue wrote. "If it determines that the requirement that Orie Melvin write and send apology letters is illegal, and that eliminating the requirement disrupts the sentencing scheme, the case will be remanded to the trial court for resentencing [including, if appropriate, a term of incarceration.]"
John Burkoff, a law professor at the University of Pittsburgh, said with that last sentence the Superior Court was simply making it known that if the panel deciding the merits of Orie Melvin's appeal agree the apology was part of Judge Nauhaus' sentencing scheme, she may have to be resentenced, and if so incarceration could be considered.
"That's a lot of 'ifs,' " Mr. Burkoff said. "So there's every chance that this will never happen -- that she will never be sentenced to incarceration instead of having to write apology letters."
But he continued, "that last parenthetical penned by the Superior Court may have given the former justice a brief facial tic. Because it also means that there's a possibility, however remote, that this may happen, that no letters may mean prison time instead. If it was me, I'd be warming up my photo-signing hand."
Mike Manko, a spokesman for the DA's office, said the prosecution would not appeal the Superior Court's decision on the stay of the apology.
"The issues discussed in the opinion deal with the validity and timeliness of Judge Nauhaus' sentencing," he said. "Although we don't necessarily agree with the entire opinion, we do concur with the portion that indicates that once these issues are finally decided, the matter could or should be remanded for resentencing."
Patrick Casey, one of Orie Melvin's defense attorneys, said Wednesday he was pleased with the court's opinion.
Paula Reed Ward: firstname.lastname@example.org, 412-263-2620 or on Twitter @PaulaReedWard.
Paula Reed Ward: email@example.com or 412-263-2620. Twitter: @PaulaReedWard. First Published November 6, 2013 12:33 PM