DA suggests Orie Melvin get jail in lieu of apology
October 8, 2013 7:39 PM
In addition to sending an apology on a photograph of herself in handcuffs, Joan Orie Melvin was also sentenced to three years house arrest.
Joan Orie Melvin
By Paula Reed Ward Pittsburgh Post-Gazette
Five months after being sentenced for misusing her court staff, former state Supreme Court Justice Joan Orie Melvin has still not written any letters of apology to the members of Pennsylvania's judiciary -- a required part of the punishment meted out to her.
She claims that being forced to write the letters violates her privilege against self-incrimination, and months ago, she asked the man who sentenced her, Allegheny County Common Pleas Judge Lester G. Nauhaus, to either stay that portion of her sentence pending appeal or rescind it.
He did neither, and last week, upon learning that Judge Nauhaus may conduct a probation violation hearing on the issue, Orie Melvin asked for an emergency stay from the Pennsylvania Superior Court. It was granted.
On Tuesday, in its response to Orie Melvin's filing, the Allegheny County district attorney's office said that if she chooses not to send the letters, the woman should be resentenced -- and possibly face prison time.
In a 20-page filing, prosecutors said that the apology letters are a central part of the "sentencing scheme" developed by Judge Nauhaus and may be the only element of the woman's punishment that could rehabilitate her.
In addition to sending an apology on a photograph of herself in handcuffs, Orie Melvin also was sentenced to three years' house arrest, to serve three days per week in a soup kitchen, two years' probation and pay a $55,000 fine.
"It is clear that Judge Nauhaus found that appellant's criminality was fueled by her arrogance and willingness to abuse power, and that appellant's arrogance is something that must be addressed in order for her rehabilitation to be successful," deputy district attorney Michael W. Streily wrote. "It will be the commonwealth's position herein that if this court stays the apology letter, then Judge Nauhaus should be given the opportunity to stay the entire sentence, should he choose to do so, because it may be that without the rehabilitative benefit of an apology letter, appellant can only be rehabilitated by incarceration in a state prison."
Orie Melvin, along with two sisters, Janine Orie, who worked as her administrative assistant, and Jane Orie, a former state senator, were all convicted of using judicial and legislative staff to campaign for the high court in 2003 and 2009.
Jane Orie, who also was found guilty of forgery for submitting doctored documents at trial, was sentenced to 21/2 to 10 years in prison and is currently incarcerated at the State Correctional Institution Cambridge Springs.
Janine Orie was ordered to serve one year of house arrest.
The prosecution argued in its brief that Orie Melvin already apologized in court on the day of her sentencing, and therefore requiring the letter is not an act of self-incrimination.
During the proceeding in May, Orie Melvin turned to her family and apologized to her children, and then she continued, "I'm saddened and sorry for the circumstances that bring me before the court today."
Further, the prosecution wrote, Judge Nauhaus said at sentencing that the letters of apology cannot be used against Orie Melvin.
"Far from suffering injury by saying she is sorry, appellant will suffer by not providing an apology," Mr. Streily said. "The tenets of appellant's religion, as she incorporated them into the sentencing proceeding, stress the importance of humility and not abusing positions of power. On a personal level, due to the devout nature of appellant's faith, this secular punishment holds great potential for rehabilitation. Such considerations are not improper. Sentencing judges have to figure out what will work for a particular defendant."
But the defense argued in its motion that a defendant's privilege against self-incrimination continues while the case is on direct appeal.
"The requirement that Orie Melvin admit that she ordered staff to 'do illegal work' under threat of incarceration while her case is on direct appeal is tantamount to a coerced confession and cannot be squared with the constitutionally mandated privilege against self-incrimination," wrote defense attorney Patrick Casey. "Moreover, ordering a defendant to write a confession on a photograph of herself wearing handcuffs is both bizarre and abusive and plainly outside the scope of authority granted to a sentencing court."
University of Pittsburgh law professor John Burkoff said that Orie Melvin's statement at sentencing was an "expression of remorse," and not a "real apology at all."
"It was one of those politicians' tactical apologies which really means 'I'm sorry I got caught.' " Mr. Burkoff said. "We've heard this a million times before when politicians feel that they have to say something after they screwed up, but they don't want to really admit that they screwed up."
He suggested two possible solutions -- Judge Nauhaus accept letters that read like her tactical apology, or wait until the conviction is upheld.
"If Judge Nauhaus wants something more -- a real admission of wrongdoing, a mea culpa -- then he should wait until her appeals are over and her conviction is final before expecting to see that sort of admission."