Charges put Orie attorney in tough spot
By Jeremy Boren
Published: Wednesday, Aug. 31, 2011,
Prosecutors' decision to charge state Sen. Jane Orie with perjury, forgery and other crimes before her retrial begins surprised legal experts on Tuesday and raised the possibility that her lawyer won't be able to stay on the case if he is forced to testify against her.
"It is a difficult and awkward situation to be in," said Barb Zemlock, a Harrisburg attorney and president of the Pennsylvania Association of Criminal Defense Lawyers.
The 16 charges added on Monday to Allegheny County prosecutors' long-running public corruption investigation into the senator and her sister, Janine, might be premature, Zemlock said.
If the old and new charges are lumped together in one trial -- as prosecutors might ask Common Pleas Judge Jeffrey A. Manning to do after a hearing next week -- attorney William Costopoulos could be subpoenaed to testify about forged documents used to defend Orie during her first trial. That trial ended in a mistrial in March.
"They're trying to make a credibility determination for the jury," Zemlock said, noting the prosecutors relied heavily on Orie's testimony in filing the new charges. "It's up to a jury to decide if she's credible or not.
"Now the message the prosecution is sending is, 'If you go forward or if you don't, we're going to charge you for presenting a defense.' "
Costopoulos has asked Superior Court to bar a retrial because it would constitute double jeopardy. Manning has said he would delay the retrial until the appeals court rules.
"The timing of these charges is suspicious, and I believe this vindictive maneuver was brought to influence the appellate process," Costopoulos said in a statement.
A motion filed yesterday by Assistant District Attorney Lawrence Claus accuses Orie, 49, and her sister Janine Orie, 57, both of McCandless, of ordering Senate staffers to prepare documents for the Orie defense while on state time.
It repeats accusations that the senator forged documents to cover up evidence that the two allegedly used state employees to perform campaign work for their sister, Supreme Court Justice Joan Orie Melvin.
Melvin, 55, of Marshall is not charged in the case.
John Burkoff, a University of Pittsburgh law professor, said "if someone commits perjury under oath, even if it doesn't go to a jury, it's still a crime."
Combining the charges into one trial could be an advantage for the defense, because it would give prosecutors one shot at convicting the sisters instead of two, he said.
Mike Manko, a spokesman for District Attorney Stephen A. Zappala Jr., said the charges address new crimes.
"However," he said, "the roles of the persons who had possession of these documents, which were altered before being admitted into evidence, is still being developed."
Costopoulos had access to the forged documents before they became evidence, and prosecutors are investigating Costopoulos' handling of the documents.
Defense attorney Patrick Thomassey, who is not connected with the case, said Costopoulos might not be able to represent Orie.
"Prosecutors are doing an investigation and asking, 'How did you get these documents• Who gave them to you?' And the lawyer is right in the middle, so I don't know what he's going to do," said Thomassey. He thinks prosecutors have work to do if they want to connect Orie directly to forged signatures and notes.
In the affidavit filed Monday, investigators said Orie logged into the Senate computer network as PASEN/jorie on July 2, 2010, weeks before a scheduled court hearing, and scanned a letter at 12:34 a.m. that later was altered to direct staff members not to conduct campaign work on state time.
"A computer login or a time stamp won't make it," Thomassey said, likening it to drivers who receive a citation for using the Pennsylvania Turnpike's E-ZPass lane without paying.
"They take a photo of your license plate ... but if they want to prosecute me, they're going to have to show that I was driving the car," Thomassey said.
Orie's defense included handwritten notes on documents that she said she gave to her staff, which purport to show her chastising Chief of Staff Jamie Pavlot and others for performing campaign work on state time. But the pages with her handwritten remarks weren't among thousands of documents her staff scanned into Senate Republican Caucus computers, the affidavit said.
In several instances, documents scanned into Senate computers by Orie staffers in 2009 and 2010 match those that Orie presented in her defense, but the versions found in Senate computers don't have Orie's handwriting, according to the affidavit.
Senate Majority Leader Dominic Pileggi, R-Delaware County, said Orie, a Republican and former Senate majority whip, faced similar charges during her last campaign, and voters overwhelmingly re-elected her.
But he acknowledged, "It's certainly not a matter that can be dealt with without a serious expenditure of time and energy on Sen. Orie's behalf."
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