Nothing is simple in the federal case against Dr. Cyril H. Wecht, which took another controversial turn yesterday when a judge dismissed a juror for medical reasons over the defense's objections, leaving an 11-member panel.
By mid-afternoon, defense attorney Jerry McDevitt had filed an emergency motion asking U.S. District Judge Arthur J. Schwab to vacate his order and temporarily halt deliberations until more information was available about the ailing juror.
Mr. McDevitt, who has denounced the government's prosecution of his client as a political witch hunt and twice tried to remove Judge Schwab from the case, did not appear happy about any aspect of yesterday's proceedings -- and with good reason, according to one expert.
"You're eliminating one potential holdout," said University of Pittsburgh law professor David A. Harris. "The net disadvantage is on the defense."
In his filings, Mr. McDevitt complained that the judge gave no advance notice that he might remove the juror; gave the defense only five minutes in court yesterday morning to discuss the situation; and did not adequately probe for additional information about the juror, such as how long he might be unable to serve.
"The hasty removal of Juror No. 1 was, under the circumstances here, completely unwarranted on the existing record and extremely prejudicial to the defense," Mr. McDevitt wrote.
Mr. McDevitt asked Judge Schwab to obtain further details about the juror's situation "in the form of verifiable information from his attending physician on his condition and ability to participate in and conclude deliberations."
Legal experts said the judge's call to proceed with 11 jurors instead of seating an alternate was not surprising given the length of the trial and the fact that deliberations were well under way.
"You can't just throw an alternate in the room. You have to restart the entire jury deliberation process from scratch," said Ellen Podgor, a Stetson University law professor who runs the White Collar Crime Prof Blog. "It's just an impractical solution."
A first hint of trouble came Tuesday afternoon, 25 minutes before the seventh day of deliberations ended, when a nurse was summoned to the jury room because a juror was dizzy.
Juror No. 1, a middle-aged male prison chaplain, left under his own power. No update on his condition was relayed to attorneys Tuesday night. At 7:48 a.m. yesterday, Judge Schwab ordered attorneys to appear in his courtroom at 8:30 but did not say why.
Once there, the lawyers were told that the juror asked to be excused because the stress of deliberations would exacerbate a health problem, which was not disclosed.
In a later court filing, Judge Schwab said Juror No. 1 "underwent overnight and afternoon testing, has requested to be excused from deliberations, because of additional tests today, doctor's recommendation and additional stress of continuing as a juror."
Judge Schwab said he was inclined to go with 11 jurors, which is allowed under the Federal Rules of Criminal Procedure if there is "good cause to excuse a juror." Then he gave each side five minutes to discuss the issue, which Mr. McDevitt found far too short.
The government did not object to the judge's position. Mr. McDevitt, however, asked to wait a day to learn the results of medical tests on the juror and give him time to reflect on whether he would be able to return.
In his filing, Mr. McDevitt questioned whether stress was a legitimate reason for dismissal. He noted that there was little evidence of stress, as gales of laughter have been overheard emanating from the jury room.
"That stress, to the extent it exists, is in one sense felt by all jurors on a divided jury and may well be caused by several factors, including inadequacy of the jury instructions; the lack of knowledge on the jury's part as to what they are to do if in fact [there is] a hung jury, or any number of factors ... ," Mr. McDevitt wrote.
Unmentioned by Mr. McDevitt was that the judge has resorted to a high-sugar stress reliever. He has been plying the jury throughout the 10-week trial with a steady stream of sweets including sheet cakes and homemade cookies. Not only that, but Judge Schwab has allowed the jury a relatively light deliberation schedule of 8:30 a.m. to 2 p.m.
Jurors last week indicated with a written question that they might be unable to reach a verdict on at least one of the 41 counts of wire fraud, mail fraud and theft from an organization receiving federal funds against Dr. Wecht stemming from the time he was Allegheny County coroner.
"The jury has been deliberating several days; the specter of a hung jury on some or all of the counts is a distinct possibility; and the removal of Juror No. 1 may well serve to remove from the jury a juror who was not voting to convict Dr. Wecht on any charges," Mr. McDevitt argued.
"Indeed, the government could hardly wait to have him removed, in sharp distinction to the way a prior juror illness was handled by the court, where the juror was given a full day to return."
Mr. McDevitt was referring to a female juror treated for pneumonia during the trial. Testimony was postponed for a day to allow her to get well enough to return.
The government has until 8 a.m. today to file its response.
Jonathan D. Silver can be reached at email@example.com or 412-263-1962.