While the prosecution in suspended Supreme Court Justice Joan Orie Melvin’s political corruption trial was successful in getting nearly all of its requests to bar evidence granted, the justice’s lawyers asked the judge to place even more limitations on the state’s case against their client.
Attorneys for Orie Melvin at Myers Brier & Kelly in Scranton asked Allegheny County Court of Common Pleas Judge Lester Nauhaus to bar the prosecution from presenting 15 different threads of evidence on everything from the Supreme Court’s 1998 order limiting political activity by judicial staff to layperson testimony on how a former Orie Melvin judicial clerk may have developed carpal tunnel syndrome.
Orie Melvin’s trial, along with that of her sister and administrative assistant, Janine Orie, is slated to begin with jury selection this morning. Orie Melvin is facing seven counts related to allegations she used her state-paid judicial staff and that of her former state senator sister, Jane Orie, to work on Orie Melvin’s 2003 and 2009 elections for the Supreme Court.
Earlier this month, Orie Melvin’s colleagues on the high court denied her request to get the charges against her thrown out. Orie Melvin argued the charges against her were based on an internal court-promulgated rule limiting political activity and therefore violated the separation of powers doctrine by infringing on the court’s sole authority to regulate activity by members of the judiciary.
While the court didn’t entertain the argument, Orie Melvin is hoping the jury won’t be able to either. The 1998 court order at issue is irrelevant, Orie Melvin argued, because the violation of a work rule is not a crime. Introducing it to the jury would unfairly prejudice Orie Melvin by suggesting that a violation of the rule equates to guilt on criminal charges, she said.
In its response filed Tuesday, Allegheny County District Attorney Stephen A. Zappala Jr. disagreed. He said the order is evidence of Orie Melvin’s knowing and intentional conduct as an element of the charges against her.
Orie Melvin is also seeking to block prosecutors from mentioning the related proceeding against her before the Judicial Conduct Board. While prosecutors agreed in their response that the JCB proceeding was not relevant to the criminal trial, it sought to reserve the right to reference JCB depositions of Orie Melvin or her daughter, Casey, if either of those two take the stand in the criminal trial. Prosecutors agreed in their response, however, to only refer to those depositions as happening in a "prior proceeding," without referencing the JCB.
A search of Pennsylvania Superior Court computers for files related to campaign work when Orie Melvin was a Superior Court judge did not result in any definitive evidence that any files were deleted, the justice said, arguing the state should not be allowed to submit evidence that files were deleted. The prosecution disagreed, however, noting that a former law clerk and former secretary of Orie Melvin have testified that Orie Melvin and Janine Orie allegedly directed campaign-related files be deleted.
Orie Melvin is also seeking to bar evidence of using Jane Orie’s Senate staff to advance Jane Orie’s political campaigns. Zappala said such evidence is relevant because the fruits of that work, in the form of fundraiser lists and endorsements, were intermingled with the staff’s work to promote judicial campaigns.
Orie Melvin does not want the jury to hear lay testimony on the alleged cause of her former judicial secretary’s carpal tunnel syndrome. During the preliminary hearing, the secretary testified she developed carpal tunnel after 2003 and said it may have had to do with all of the data entry she was doing in connection with the campaign, according to Orie Melvin’s filing.
Also at issue are materials obtained from boxes in the garage of Orie Melvin’s former law clerk, Lisa Sasinoski. Orie Melvin argues they should be inadmissible because they can’t be authenticated.
Orie Melvin is further arguing that evidence of the prosecution of state Representative Jeffrey Habay in the early stages of the Bonusgate scandal should not be allowed at trial. Habay was tried and convicted on charges he violated the state Ethics Act for assigning state staffers to work on his political campaigns, Orie Melvin noted in her filing. The justice said the Ethics Act does not apply to judicial employees and therefore the prosecution is irrelevant.
Zappala agreed it would be inappropriate to suggest the verdict in Habay’s case should suggest the appropriate verdict in Orie Melvin’s case. But Zappala said Habay’s case was known to Orie Melvin and her staffers and said several witnesses will testify that media coverage of the Habay case caused a change in the witnesses’ behavior regarding their willingness to participate in political campaign work on state-paid time. The state will also present evidence, Zappala said, that the Habay case resulted in judicial staff members being directed to remove or conceal evidence of political activity.
The two sides aren’t at complete odds when it comes to framing what the jury will hear. The district attorney agreed with arguments in Orie Melvin’s motion that evidence relating to searches of Supreme Court computers is irrelevant and that the guilty verdict against Jane Orie should also be excluded at trial.
Late last week, Nauhaus granted the prosecution’s request to limit three potential arguments it thought the defense might make at trial. Nauhaus agreed Orie Melvin could not allege the prosecution against her was based on improper motives by Zappala or his office, that she could not mention the fact that Jane Orie was acquitted of two counts that related to her use of Orie Melvin’s staff to do campaign work and that Orie Melvin could not mention that she attempted to reject a 2005 judicial pay raise.
Nauhaus has not yet ruled on whether Orie Melvin can introduce evidence regarding the identity of the woman in a federal case, Jane Doe v. G.L., which dealt with allegations by Jane Doe that G.L. recklessly gave her a sexually transmitted disease. Nauhaus is waiting on the federal judge in that case, U.S. District Judge Gary L. Lancaster of the Western District of Pennsylvania, to rule on Orie Melvin’s motion to unseal the identity of Jane Doe.
Orie Melvin’s motion was filed under seal, but in one publicly available filing, Orie Melvin said Jane Doe’s right to privacy is outweighed by Orie Melvin’s right to confront this woman at Orie Melvin’s criminal trial. Who the woman is and what relevance she has to Orie Melvin’s trial was unknown as of press time Tuesday.