Pa. Superior Court stays apology letter-writing portion of Orie Melvin's sentence

By Jon Campisi | Nov 7, 2013

Disgraced former Supreme Court Justice Joan Orie Melvin will not have to

pen apology letters to members of the state judiciary, at least not for now.

A three-judge Pennsylvania Superior Court panel on Wednesday stayed the portion of Orie Melvin’s criminal sentence that ordered her to write letters of apology relating to her public corruption conviction.

The former justice was convicted in February on counts including theft of services and criminal conspiracy relating to campaign work she instructed Superior Court staffers to do while she was running for a seat on the high court.

In addition to imposing a term of house arrest, an Allegheny County Common Pleas Court judge ordered Orie Melvin to write apology letters and distribute them to judges throughout the state.

Orie Melvin subsequently appealed the letter-writing portion of the sentence, arguing that it would violate her right against self-incrimination.

She had asked the Superior Court to stay that portion of the sentence while she appealed her conviction.

The trial judge had also ordered that Orie Melvin pen the apologies on a photograph of the former jurist wearing handcuffs, something the defendant called “bizarre.”

During her sentencing hearing in the spring, Orie Melvin’s lawyer argued that the letter-writing portion of the sentence would violate the woman’s right against self-incrimination.

The attorney asked the appeals court to either rescind this portion of the sentence or stay it until final judgment in the case.

The trial judge, Lester Nauhaus, had previously stated that he didn’t believe the issue was a “Fifth Amendment problem,” but indicated that he would take the matter under advisement, according to this week’s Superior Court ruling.

Despite saying as much, Nauhaus never issued a ruling within 10 days of the hearing, so Orie Melvin’s counsel filed an appeal with the Superior Court.

In its ruling, the Superior Court wrote that while it’s true that the trial judge never formally denied Orie Melvin’s request for a stay on this portion of her sentence, Nauhaus’s inaction on the request for four months constitutes an effective denial.

In her application for a stay to the Superior Court, Orie Melvin argued that the forced letter-writing under threat of incarceration is “tantamount to a coerced confession and cannot be squared with the constitutionally mandated privilege against self-incrimination,” according to the appellate court ruling.

Orie Melvin also asserted that ordering her 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 …”

The Superior Court wrote that it wouldn’t be determining the legality or constitutionality of the letter-writing portion of Orie Melvin’s sentence at this juncture, saying those issues would be decided by the merits panel ruling on the woman’s appeal.

Instead, the panel focused on the narrow issue of whether the apology letters violated Orie Melvin’s right against self-incrimination.

The panel ended up ruling that given the pendency of the appeal in the case, and the potential for a retrial, “we must conclude that the requirement that Orie Melvin write apology letters violates her right against self-incrimination, at least until such time as her direct appeal in this Court has been decided.

“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 and thus violates the plain language of the Pennsylvania Constitution that a person ‘cannot be compelled to give evidence against himself,’” the panel wrote. “We are confident … that the privilege against self-incrimination should not be strictly limited to apply only to in-court testimony, as the privilege ‘protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.’”

State prosecutors had argued that Orie Melvin already effectively apologized in open court, which rendered her appeals argument moot because she essentially waived that issue.

But the Superior Court panel wrote that Orie Melvin’s brief statement to her children in the trial proceeding was not incriminating, and cannot serve as a basis for finding a waiver of the privilege.

“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,” the ruling states. “Importantly, Orie Melvin did not admit her guilt for any of the crimes with which she was charged and convicted.”

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