PHILADELPHIA -- The prosecution and defense traded accusations yesterday as they argued several issues relating to the criminal case of former Allegheny County Coroner Dr. Cyril Wecht before the 3rd U.S. Circuit Court of Appeals.
Dr. Wecht's trial on 84 counts, including mail and wire fraud, is scheduled to begin Oct. 16. However, prosecutors and defense attorneys as well as lawyers intervening on behalf of local news media have filed appeals relating to decisions already made in the case by U.S. District Court Judge Arthur J. Schwab.
Yesterday, a three-judge panel heard arguments on three issues: whether a local court rule restricting the lawyers in the case from speaking to the media is unconstitutional; whether two disciplinary reports on the lead FBI agent in the case should be released to the public; and whether the defense has proved that Judge Schwab should be removed from the case because of what it claims is an appearance of bias against Dr. Wecht.
The judges have taken the matters under advisement.
Throughout the two-hour hearing, arguments over the removal of Judge Schwab were, by far, the most contentious.
"This was not an easy decision to make. It was a motion of last resort," said Jerry McDevitt, referring to his motion asking Judge Schwab to recuse himself. "[But] this falls so far below what a federal judge is to deliver to litigants before him."
He argued that Judge Schwab's rulings, at the very least, would lead a reasonable person to suspect that he may have lost his ability to remain impartial.
"There is a continuum of activities that step outside the shoes of a neutral jurist trying to apply the law," Mr. McDevitt said.
He listed several decisions that he believes show Judge Schwab is not impartial, including that the judge threatened defense counsel with contempt in a written order in the case.
But Assistant U.S. Attorney Stephen Stallings said the threat was justified because defense lawyers didn't follow the judge's orders.
"Isn't that somewhat chilling?" Judge Michael Fisher asked Mr. Stallings from the bench.
The prosecutor agreed that it was, but he continued, "it does not chill zealous advocacy."
Assistant U.S. Attorney Rebecca Haywood told the judges that "this is simply not a recusal case," because Judge Schwab has not made any blatantly biased decisions against Dr. Wecht.
To which Judge Julio Fuentes responded, "In listening to Mr. McDevitt, he makes a pretty good case. It's an extraordinary remedy, but he's putting together a series of events that he says show bias on his client."
In one of those events, Mr. McDevitt said the government tried "to pull a fast one" relating to the handling of two disciplinary reports of FBI Agent Bradley Orsini.
Early in the case, prosecutors provided the reports to Judge Schwab privately, asking him if they should be turned over to the defense. The judge said that they should, and ordered that to happen.
However, the defense claims that the meeting between the prosecution and the judge was inappropriate.
Mr. McDevitt referred back to those reports in claiming that Judge Schwab has limited his ability to fight for Dr. Wecht because the defense was not allowed to use them in the cross-examination of Agent Orsini at a suppression hearing in the case.
"You say you were not allowed to use [the disciplinary reports]," said Judge Fuentes. "The government's brief said you chose not to use them."
"That's incorrect, your honor," Mr. McDevitt replied. "I was absolutely precluded from using that document."
But Mr. Stallings, who only argued for 10 minutes, said the defense never tried to get the disciplinary reports into the hearing.
"They never did that, and frankly, your honors, we were surprised," Mr. Stallings said.
He accused the defense lawyers of misstating the record.
"You cannot rely on the record cites provided by the defendant," Mr. Stallings said. "The facts are not what the defense counsel says they are."
Paula Reed Ward can be reached at email@example.com or 412-263-2620.