Wecht defense asks for dismissal of all counts
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Defense attorneys for Dr. Cyril H. Wecht today asked a federal judge to dismiss the government's 41-count indictment and prevent further prosecution on a technicality in the way a mistrial was handled.
Lawyers also asked U.S. District Judge Arthur J. Schwab to order the government to divulge how it obtained the names of jurors contacted by the FBI last week after a mistrial was declared.
Lead defense attorney Jerry McDevitt argued that Judge Schwab erred technically in the way he declared a mistrial Tuesday by not following certain steps suggested by an appeals court and not giving the defense a chance to comment in court as is called for under federal trial rules.
Dr. Wecht's case should be governed by language from the 3rd U.S. Circuit Court of Appeals that says in certain situations, "any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause."
Mr. McDevitt cited another appeals court opinion that states, "As the Third Circuit has written, trial judges may declare a mistrial without barring reprosecution only in extraordinary circumstances."
"The court's error, uncorrected by the government, leads ineluctably to the conclusion that the government may not retry Dr. Wecht without violating his Fifth Amendment right to be free from being subjected twice to jeopardy for the same alleged offenses," Mr. McDevitt wrote.
The defense's other filing deals with FBI agents contacting discharged jurors after the mistrial as part of the government's efforts to learn about "their experience as a juror." Mr. McDevitt, who has jumped on some jurors' characterization of these contacts as "intimidating," wrote that both sides were under "strict orders" from the judge not to record the jurors' names.
"Absent strong action by the court, designed to flush out how the FBI got jurors' names, every prospective juror now has to fear the specter of FBI agents calling them if they do not vote to find Dr. Wecht guilty," Mr. McDevitt wrote.
More details in tomorrow's Pittsburgh Post-Gazette.
First Published April 14, 2008 3:01 pm