Today a jury in Pittsburgh found PA Supreme Court Justice Joan Orie Melvin guilty of misuse of public employees in her judicial campaigns. Here’s the story. Also convicted was her sister and administrative assistant, Janine Orie. A third sister, former state senator Jane Orie, was convicted previously of similar violations in a separate trial.
Last week, at the conclusion of the defense case, Justice Orie Melvin told the court that she would not testify in her own defense. This had many people asking why, and those questions are sure to intensify now that she has been found guilty. Was it a mistake for her to refuse to take the stand?
My short answer is no: I think she didn’t testify because she and her lawyers recognized it would have been a very bad idea. In brief, here’s why.
The bottom line is that the defendant doesn’t just get up on the stand and tell her story. The defendant gets cross-examined, too. And a good cross-examiner can make any defendant, innocent or guilty, look untruthful, evasive, or downright criminal. In addition, if the defendant has ever been convicted of another crime, the prosecution can usually (not always) trot it out to impeach the defendant.
So the decision on whether or not to testify requires a balancing of risks: the risk that the jury members will say to themselves (though they are not supposed to, since the defendant is presumed innocent) “if she wasn’t guilty, she would have testified,” versus the very substantial downside risks of cross-examination. There are a few types of cases in which there is no choice: the defendant MUST testify (e.g., a self-defense case in which only the defendant survives and claims that he was in fear of the attacking victim, with no other witnesses present.) But my own experience as a defense lawyer was that almost always, defendants damaged their cases, often severely, when they testified. And if the judge thought the defendant lied while testifying, the judge imposed a harsher sentence.
My interview yesterday on WESA public radio’s Essential Pittsburgh show explains all of this in depth. You can listen to it by clicking here and then clicking on the audio bar below the phrase “Testifying in Your Own Defense.”