U.S. appeals court freezes Wecht's trial

Considers request from ex-coroner to remove judge

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The 3rd U.S. Circuit Court of Appeals has stayed the criminal trial of former Allegheny County Coroner Dr. Cyril H. Wecht pending its decision on whether the judge hearing the case should be removed.

Last week, attorneys for Dr. Wecht argued to a three-judge panel that U.S. District Judge Arthur J. Schwab has not been impartial in his rulings, and because of that, their client cannot receive a fair trial.

The appeals court has not issued a formal ruling, but late Friday, it issued an order staying the trial. That order became public early yesterday morning as the parties met before Judge Schwab for the final pretrial conference in the case.

Dr. Wecht's trial on 84 counts, including mail and wire fraud, was scheduled to begin Oct. 16. Dr. Wecht's lawyers declined comment on the development, as did Judge Schwab.

Recusals are very rare, so the court's action staying the case is noteworthy, experts say.

John Burkoff, a professor at the University of Pittsburgh School of Law, said it's "almost impossible" to win a recusal case.

"That's a real slap from the appellate court to the trial court, and that doesn't happen very often," he said. "It's an easy thing to say but very difficult to prove. A recusal based on an allegation of bias [is] very rarely [granted]."

The federal judiciary does not keep a tally of how often such motions are granted.

Though issuing a stay is an unusual step, it does not automatically mean the appeals court is planning to remove Judge Schwab.

It might indicate that there is some potential substance in the argument raised by the defense that the appeals court wants to review.

Mr. Burkoff believes that the issue before the court isn't whether Judge Schwab issued the wrong decisions, but whether he abused his discretion in not recusing himself when the defense attorneys asked.

"You can have a judge who's done everything right, but is there an appearance of impropriety?" Mr. Burkoff said. "He may not have done anything wrong, but the appellate court could think it looks like he did."

Dr. Wecht's attorneys said they would seek Judge Schwab's recusal in June after he said he would pursue contempt proceedings against them after the trial because they did not follow his orders.

The defense contends that the judge had improper, secret communications with the prosecution; that he has shown bias against Dr. Wecht in his court rulings; that the judge improperly reviewed potential evidence in the case on his own and then used that information in a ruling; and that he has prohibited Dr. Wecht's attorneys from pursuing a zealous defense.

During oral arguments, at least one of the appellate judges, Julio Fuentes, might have shown which way he was leaning in the case when he said, "In listening to [defense attorney Jerry] 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."

Former 3rd Circuit Judge Timothy K. Lewis, who left the federal bench in 2000, said that issuing a stay in the trial proceedings is the right thing to do to be fair to all the parties involved.

"That said," he continued, "this is not by any means a tip of the hand they're going to rule in favor of Wecht," he said. "It's an indication only that they have not found it to be a frivolous matter, and they're considering it seriously.

U.S. Attorney Mary Beth Buchanan said she would not comment, other than to say, "It's impossible to read anything into the court's order."

In an opinion by the 3rd Circuit Court in August 2004, Judge Schwab was chastised for taking the entirety of a proposed opinion filed by a defense attorney and using it as his own.

He had granted a dismissal of a lawsuit filed by John Bright, whose 8-year-old daughter, Annette, was murdered in 2001 by a man on probation. Mr. Bright sued probation officers in Westmoreland County for not doing enough to keep the killer away from her.

Judge Schwab asked for a "consolidated statement" of the defense position, and after the lawyers submitted a proposed opinion, he adopted it without making any substantive changes, other than those for style, and never gave Mr. Bright a chance to reply.

"Courts and judges exist to provide neutral [forums] in which persons and entities can have their professional disputes and personal crises resolved," wrote Judge Richard Nygaard in a 2004 opinion. "Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness."

If Judge Schwab is removed from the case, a newly appointed judge would meet with the lawyers to discuss what motions and arguments need to be resubmitted and decide how the case will proceed.

"A new judge would want to be extremely careful to review everything that had been disputed to make sure improper appearance is corrected," Mr. Burkoff said.

Judge Schwab, who sought a seat on the federal bench for 17 years, was appointed to the court in the Western District of Pennsylvania in September 2002.

He first was considered for the district court in 1985. Then in 1988, Judge Schwab, now 59, of Butler County, was considered a lock for a position on the 3rd Circuit Court of Appeals when Judge Joseph F. Weis Jr. took senior status. But his nomination was foiled when the American Bar Association gave him an "unqualified" rating.

At the time, Judge Schwab said he believed the rating was based on his conservative religious and political beliefs. He is an evangelical Christian.

But the chairman of the bar association's screening committee said Judge Schwab received the unfavorable rating because he lacked experience in federal court.

Before joining the district court, Judge Schwab worked at the law firm Buchanan Ingersoll, serving for his last two years as chief counsel for complex litigation.

The judge served as a federal court clerk out of law school, and began his career in private practice in 1973 at Reed Smith, where he served as deputy head of the litigation group and was the first chairman of the firm's Techlex Group, which specialized in legal services for high-tech firms. He left Reed Smith in 1990.

Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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