Legal fur flew once again yesterday in the Dr. Cyril H. Wecht case, this time over a judge's refusal to bar a retrial of the former Allegheny County coroner on double-jeopardy grounds.

Double jeopardy is the constitutional principle that a defendant cannot be tried twice on the same charges, but it generally applies to acquittals.

In the case of a mistrial, it only applies if the mistrial was declared too quickly or wasn't necessary.

U.S. District Judge Arthur Schwab declared a mistrial on April 8 after the jury said it was deadlocked.

The judge said Dr. Wecht's lawyers, and not the prosecution, are the ones who asked that a mistrial be declared, so they can't now argue that it was unnecessary.

He said prosecutors have every right to retry Dr. Wecht.

Lead defense attorney Jerry McDevitt had argued that the judge didn't give him a chance to comment on "the propriety" of declaring the mistrial, which Judge Schwab said yesterday is not true.

The judge said both parties had ample opportunity to discuss the possibility of a mistrial with him during the deliberations.

He said the mistrial was "absolutely necessary, as defendant himself argued in requesting a mistrial on April 3, 2008, and again on April 7, 2008."

Following the judge's ruling, the defense immediately asked him to stay the order while they appeal. Judge Schwab labeled the argument as "frivolous" and indicated he won't delay the retrial while the 3rd U.S. Circuit Court of Appeals hears it.

Under the law, a judge must stay an order pending appeal unless the issue being raised is determined to be frivolous.

Mr. McDevitt, who has been sparring with Judge Schwab since the case began, said there's no reason to rush into a second trial.

"While Dr. Wecht does not expect the court to retreat from that view [that the double-jeopardy claim is frivolous]," he wrote, "he believes the court should at least acknowledge that reasonable minds could differ on the issue and that the court of appeals should have an opportunity to address the question without the haste imposed by a looming trial date."