Case 2:15-cv-01225-MRH-RCM Document 37 Filed 04/07/16 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JOAN ORIE MELVIN, ) Petitioner, ) ) vs ) Civil Action No. 15-1225 ) Judge Hornak STEPHEN D. ZAPPALA, District Attorney of ) Magistrate Judge Mitchell Allegheny County, et al., ) Respondents. ) I. Recommendation It is respectfully recommended that the petition for writ of habeas corpus filed by petitioner (ECF No. 1) be dismissed and that a certificate of appealability be denied. II. Report Petitioner, Joan Orie Melvin, brings this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging her convictions on charges of theft of services, criminal conspiracy, and misapplication of entrusted property and property of government or financial institutions, and the sentence of 3 years of intermediate punishment and 2 years of probation, imposed by the Court of Common Pleas of Allegheny County, Pennsylvania at a resentencing hearing on May 14, 2013. In addition, Petitioner was ordered to pay all applicable fines, costs and restitution and to send an apology letter to former members of her staff and to all sitting judges in Pennsylvania, the latter to be sent on a photograph of herself wearing handcuffs. The Pennsylvania Superior Court subsequently affirmed the conviction, but reversed the portion of the sentence that required the apology letters to members of the judiciary to be made on a photograph (the requirement to send apology letters was affirmed, but not on a photograph of herself in handcuffs). Procedural History Petitioner was a sitting justice on the Pennsylvania Supreme Court when she was Case 2:15-cv-01225-MRH-RCM Document 37 Filed 04/07/16 Page 2 of 47 charged, on May 18, 2012, with having misused her judicial staff and the legislative staff of her sister, former Pennsylvania State Senator Jane Orie, to advance her 2003 and 2009 campaigns for the Pennsylvania Supreme Court (she was at the time a judge on the Pennsylvania Superior Court). (Pet. ¶ 2.)1 Specifically, she was charged by Criminal Information filed in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at CC 20129885 with: three (3) counts of Theft of Services, 18 Pa. C.S. § 3926(b); two (2) counts of Criminal Conspiracy, 18 Pa. C.S. § 903(c); one (1) count of Misapplication of Entrusted Property and Property of Government or Financial Institutions, 18 Pa. C.S. § 4113(a); two (2) counts of Official Oppression, 18 Pa. C.S. § 5301(1); and one count of criminal solicitation, 18 Pa. C.S. § 902(a). Petitioner’s charges were filed following a grand jury investigation. Following a preliminary hearing before Magisterial District Judge James Hanley on July 30-31, 2012, one of the two counts of official oppression and the count of criminal solicitation were dismissed; the remaining seven counts were bound over for trial. On August 14, 2012, the District Attorney filed a seven-count information against Petitioner, corresponding to the seven counts bound over for trial. (Answer Ex. 2.)2 Previously, Jane Orie and another sister, Janine Orie (who served as the judicial secretary to Joan Orie Melvin), were charged on April 7, 2010 with theft and criminal conspiracy in connection with the alleged use of Jane Orie’s Senate staff to advance Orie Melvin’s 2009 campaign for the Pennsylvania Supreme Court. The trial of Jane Orie and Janine Orie began on February 7, 2011 before Judge Jeffrey Manning in the Court of Common Pleas of Allegheny County and ended in a mistrial on March 3, 2011. Following the mistrial, the District Attorney 1 ECF No. 1. 2 ECF No. 19. For consistency, all references herein to the record are to the Commonwealth’s Answer and Exhibits thereto, which are part of the record before this Court. 2 Case 2:15-cv-01225-MRH-RCM Document 37 Filed 04/07/16 Page 3 of 47 filed an additional 16 counts against Jane Orie (for a total of 34 criminal counts) and an additional 4 counts against Janine Orie (for a total of 6 criminal counts). Judge Manning severed the case against Janine Orie from the case against Jane Orie. Following a second trial which began on February 29, 2012, Jane Orie was convicted on 14 of the 34 counts against her.3 On June 1, 2012, Petitioner filed a motion for appointment of an out-of-county judge to preside over her case. On June 27, 2012, Judge Manning denied this motion. (Pet. ¶ 3.) On July 2, 2012, Petitioner sought review of this ruling by filing a Motion for Expedited Consideration of Application for Extraordinary Relief and an Application for Extraordinary Relief (Including a Stay of Proceedings) Pursuant to King’s Bench Powers and/or Plenary Jurisdiction in the Supreme Court of Pennsylvania, which was docketed at No. 37 WM 20128. (Answer Exs. 4 & 5) (APP 34-39; 40-59). On July 17, 2012, the Supreme Court denied the application. (Answer Ex. 7) (APP 68). On August 1, 2012, the Commonwealth filed a Motion for Joinder, seeking to join Petitioner’s case with that of Janine Orie. (Answer Ex. 8) (APP 69-75.) On August 23, 2012, Judge Manning filed a Memorandum Opinion, which granted the Commonwealth’s Motion for Joinder. (Answer Ex. 12) (APP 153-69). Also, Judge Manning entered an Order of Court reassigning the joined case of Joan Orie Melvin and Janine Orie to Judge Lester Nauhaus. (Answer Ex. 13) (APP 170-73). At status conferences on September 14, 2012 and October 26, 2012, Petitioner requested access to original electronic evidence, including two terabytes of original electronic evidence 3 Jane Orie filed a habeas corpus action in this Court on September 2, 2015, which was docketed at Civ. A. No. 15-1153. On March 17, 2016, a Memorandum Opinion & Order was entered, dismissing the petition and denying a certificate of appealability. The case is currently on appeal before the United States Court of Appeals for the Third Circuit. 3 Case 2:15-cv-01225-MRH-RCM Document 37 Filed 04/07/16 Page 4 of 47 seized by the District Attorney from the office of Senator Jane Orie pursuant to a search warrant on December 11, 2009. (Pet. ¶ 13.) On October 29, 2012, Judge Nauhaus issued an Order directing the Commonwealth to provide Petitioner with copies of the relevant grand jury transcripts. (Answer Ex. 19) (APP 231). Also, Judge Nauhaus issued Orders directing the Senate Republican Caucus and the Administrative Office of the Pennsylvania Courts (AOPC) to make all electronic evidence available for examination by Petitioner. (Answer Exs. 20, 21) (APP 232, 233). On November 2, 2012, the Commonwealth filed a motion for reconsideration. (Answer Ex. 22) (APP 234-73).4 On November 5, 2012, Judge Nauhaus filed an Order of Court modifying the Order for the grand jury transcripts by directing the Commonwealth to provide the defendants with transcripts of all grand jury testimony of persons that the Commonwealth expected to call as witnesses at trial. (Answer Ex. 24) (APP 319-20). The Commonwealth’s motion for reconsideration was denied as moot. (Answer Ex. 25) (APP 321-22). On December 7, 2012, Petitioner filed an Omnibus Pretrial Motion (Answer Ex. 34) and a memorandum of law in support (Answer Ex. 35).5 Among the issues presented was that her prosecution violated the doctrine of separation of powers because it was based on an alleged violation of an internal court rule. Judge Nauhaus orally denied the motion at a hearing on December 21, 2012 (Answer Ex. 45) (APP 977). On January 7, 2013, Petitioner filed an Application for Extraordinary Relief Pursuant to King’s Bench Powers and/or Plenary Jurisdiction and for Expedited Consideration of Application in the Supreme Court of Pennsylvania, which was docketed at No. 1 WM 2013. 4 ECF No. 20. 5 ECF No. 21. 4 Case 2:15-cv-01225-MRH-RCM Document 37 Filed 04/07/16 Page 5 of 47 (Answer Ex. 50) (APP 1040-60).6 In this application, she sought to bar her prosecution as improperly based on a court rule. On January 10, 2013, the Supreme Court denied the application. (Answer Ex. 52) (APP 1074). On January 24, 2013 through February 15, 2013, Petitioner and Janine Orie appeared before Judge Nauhaus and proceeded to a jury trial. Attorneys Daniel T. Brier, Patrick A. Casey, and Donna A. Walsh represented Petitioner. Attorney James DePasquale represented Janine Orie. Assistant District Attorney Lawrence N. Claus and Assistant District Attorney Lisa Mantella represented the Commonwealth. On February 4, 2013, during the trial, Petitioner filed a Motion to Dismiss Criminal Charges Due to Prosecutorial Misconduct. (Answer Ex. 62) (APP 1840-80).7 On February 4, 2013, Judge Nauhaus denied the motion. (Answer Ex. 63) (APP 1881). On February 7, 2013, at the close of the Commonwealth’s case, Petitioner renewed her legal challenges from her Pretrial Omnibus Motion. Judge Nauhaus orally denied these objections. (TT 2077-85.) On February 21, 2013, Petitioner was found guilty of three (3) counts of Theft of Services, two (2) counts of Criminal Conspiracy and one (1) Count of Misapplication of Entrusted Property and Property of Government or Financial Institutions. The jury was unable to reach a verdict as to the one (1) count of Official Oppression (TT 2856-57). Sentencing was deferred pending a pre-sentence report (TT 2862). On May 7, 2013, Petitioner and Janine Orie appeared before Judge Nauhaus for sentencing. At Count 1, Theft of Services, Petitioner was sentenced to three (3) years of 6 ECF No. 23. 7 ECF No. 27. This concerned a piece of evidence introduced during the testimony of Lisa Sasinoski, as discussed below.