U.S. appeals court rules judge may stay on Wecht case

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The 3rd U.S. Circuit Court of Appeals ruled yesterday that the judge hearing criminal charges against former Allegheny County Coroner Dr. Cyril H. Wecht will remain on the case.

That was just one of three important decisions contained in the panel's 69-page, precedent-setting opinion.

As part of the ruling, which took seven months, the court also found in favor of the public and local news media by removing a prohibition on attorneys speaking about this case -- and others -- and unsealed two disciplinary reports concerning the lead FBI agent investigating Dr. Wecht.

   
Online document

Read the ruling from the 3rd U.S. Circuit Court of Appeals in the Cyril Wecht case as an Adobe Acrobat file.

   

Though U.S. District Judge Arthur J. Schwab will stay on the case, the three-judge panel did criticize him for a number of his decisions, which its members said at different times "puzzled" them and were "improper."

Defense attorneys for Dr. Wecht, who is charged with 84 counts of misusing his public office for private purposes, had filed a petition to remove Judge Schwab in August, claiming he was biased against their client.

But the appellate court did not believe any of their claims met the required burden to remove a judge.

Those attorneys are expected to file a petition for an en banc review of the decision that would be heard by the 12 active 3rd Circuit judges.

In their original petition, Dr. Wecht's attorneys claimed Judge Schwab improperly admitted more than 300,000 pages of documents as government exhibits.

Though the appellate court found that it was improper, it did not believe it was biased.

"We believe his evidentiary order created unnecessary argument and confusion," Judge Julio Fuentes wrote in the opinion. "While we are somewhat puzzled by some of the District Court's actions in managing exhibits, we do not believe they display bias, much less the degree of favoritism or antagonism that is required for recusal."

In oral arguments Sept. 12, Dr. Wecht's attorneys also told the appeals court that Judge Schwab improperly threatened them with contempt.

"It is possible that the shadow of such punishment may chill the zealous advocacy of defense counsel," Judge Fuentes wrote. But, he continued, it was again not enough to show bias.

Another defense claim against Judge Schwab was that he had improper communications with prosecutors related to the disciplinary reports of lead FBI Agent Bradley Orsini.

Still, the court found no bias.

The judges, though, did find that Agent Orsini's disciplinary reports are "judicial records" that the public has a right to see.

The reports were originally filed under seal by the U.S. attorney's office last April. In June, Judge Schwab unsealed the documents, but he stayed his ruling to allow the government to appeal.

In its opinion, the 3rd Circuit said the public clearly has an interest in knowing the process by which government investigates and prosecutes its citizens.

"The records concern the conduct of an FBI official who played a prominent role in a highly publicized investigation of a well-known defendant accused of abusing his public office," the judges wrote.

"While the probative value of the documents is open to debate, they are of at least some relevance to Wecht's repeated assertions that Agent Orsini lacks veracity and that his affidavits in support of the search warrants were 'infected with his deliberate and reckless falsehoods.' "

Though the appeals court found that the Orsini reports should be made available to the public, that will not likely happen until after federal prosecutors decide if they want to appeal the ruling.

U.S. Attorney Mary Beth Buchanan yesterday declined any comment "until they've completed a thorough review of the court's opinion."

In the third decision, the appellate judges agreed to change a local federal District Court rule that prohibits attorneys from speaking freely about their cases.

The rule, imposed on all criminal cases in the Western District of Pennsylvania, forbade attorneys from talking about anything "if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice."

That included, among other things, the existence of any confession, admission or statement given by the accused, or any opinion as to the accused's guilt or innocence or merits of the case.

Dr. Wecht and lawyers for several local media outlets, including the Pittsburgh Post-Gazette, challenged the rule, claiming that it violated the First Amendment by imposing overly broad restrictions on free speech.

With the change, the only speech that will now be prohibited is that which is "substantially likely to materially prejudice ongoing criminal proceedings."

The new rule will be applicable in all of the District Courts in the 3rd Circuit.

Though the decisions on the local rule and the Orsini reports were unanimous, the decision to keep Judge Schwab on the case was 2-1, with Judge Myron H. Bright, a member of the 8th Circuit, dissenting from Judge Fuentes and Judge D. Michael Fisher.

"[This] opinion does not suggest that the district judge harbors actual bias in this case," Judge Bright wrote. "The circumstances of this case ... compel the conclusion that a reasonable person, with knowledge of all the facts, would conclude that the district judge's impartiality might reasonably be questioned."

University of Pittsburgh law professor John Burkoff said both conclusions make sense to him.

"To my mind, they're both fair opinions," he said. "Different people can look at the same thing and see differently."

Defense attorney Jerry McDevitt, who will likely file the request for en banc review, agreed.

"As evidenced by the split decision, reasonable minds can disagree with this," he said.


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


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