GOP prosecutor is on the hot seat over whether to press Wecht case
To appeal or forget about it -- that's the question now being mulled by U.S. Attorney Mary Beth Buchanan.
She must weigh the possibility of success at recovering evidence tossed out last week in the criminal prosecution of former Allegheny County Coroner Dr. Cyril H. Wecht against the cost -- in terms of dollars, as well as her legacy -- of pursuing a case that has divided the public and shaped the last four years of her administration.
On Thursday, U.S. District Judge Sean J. McLaughlin entered a 55-page opinion that threw out all of the evidence in the case that came from the execution of two search warrants in April 2005 on Dr. Wecht's private office and on a laptop computer used by his administrative assistant.
While the judge did not totally foreclose the government's case, the only way prosecutors can now continue is if the U.S. attorney files an appeal to recover the lost evidence.
Ms. Buchanan -- who is likely to be replaced in coming months by the Obama administration -- has not announced what her decision might be and would not comment last week on the situation.
But experts said both possibilities carry risks for her.
Abandoning an appeal could give her a graceful way to exit the high-profile case -- enabling her to leave office and say she didn't lose, while not sticking a potential successor with what many see as an albatross.
The Obama administration has not yet appointed new U.S. attorneys. Though she could reapply for her position, it's considered unlikely that Ms. Buchanan, considered a rising star in the Bush administration, will be reappointed.
But Ms. Buchanan also made the case a centerpiece of her tenure, and the defense most certainly would label a decision not to appeal as a victory.
If the prosecution does appeal, it risks possibly losing another round of the case, and wasting even more resources on a case that's been on the books since early 2006.
"Certainly, the U.S. attorney's office shouldn't drop prosecutions because of popular opposition to them," said Ken Gormley, interim dean at the Duquesne University School of Law. "But once there is no legal basis for proceeding, that seems to end the matter in a clean and just fashion."
Defense attorney Stanton D. Levenson, who represented comedian Tommy Chong several years ago in a highly publicized case here involving sales of bongs, has been an outspoken critic of several of Ms. Buchanan's prosecutions.
He said he sees Judge McLaughlin's decision as an easy way out for her.
"It gives her a good, legitimate, face-saving out if she thinks that's the appropriate thing to do," he said.
It would be easy for the prosecutor to say simply that while she doesn't agree with the judge's decision, it would be in the best interest of her office -- to save expenses and resources -- to let the case drop, Mr. Levenson said.
While it will be up to Ms. Buchanan to make a recommendation to appeal, the final say will not rest with her. Instead, that will come from Elena Kagan, Solicitor General of the United States.
The recommendation of the local U.S. Attorney's office goes to the appellate section of the criminal division at the Department of Justice, said Thomas Hungar, former deputy solicitor general from 2003 to 2008.
An analysis is done there, and then another recommendation goes to a line officer in the Solicitor General's office.
From there, the case will be reviewed again and again, until a final decision is made by Ms. Kagan.
While the significance of the case in the local district is important, a variety of considerations go into making a decision to appeal, Mr. Hungar said.
"The government has to think about the impact of its appeals, not just on the particular case at hand, but its broader interest in the circuit or in the country."
The Department of Justice does not want to put itself in a position where an appeal would create bad precedent for other districts, and so it is the Solicitor General's role to serve as a kind of gatekeeper, Mr. Hungar said.
Even if a local prosecutor wants to pursue an appeal, it's not at all uncommon for the Solicitor General's office to turn it down.
Mr. Gormley said that it's likely the Department of Justice will want to move on from the Wecht prosecution.
"Considering what's left of this case, it wouldn't seem to be a high priority," he said. "It just doesn't make any sense this is where Washington would want to go with their scarce resources at this point in history."
Former U.S. Attorney Harry Litman also believes that the government may give serious consideration to the idea of voluntarily dismissing the charges.
"Just in terms of resource allocation, the office already has had to devote a lot of resources to this case, and now they're looking at having to climb three more hills: internal Department of Justice approval to appeal; the 3rd Circuit [U.S. Court of Appeals]; and if it gets to that point, another jury."
The case of Dr. Wecht has been filled with high drama.
Ms. Buchanan announced the charges against him in a news conference in January 2006, and it took little time before defense attorneys were rallying around the well-known forensic pathologist on local and national cable television shows.
The months -- and then years -- following the indictment were filled with flurries of legal filings and accusations, ranging from body-snatching to political motivations. The case finally proceeded to trial in January 2008.
Representing the government was Stephen S. Stallings, a no-nonsense, stick-to-the-rules prosecutor. Dr. Wecht hired Jerry McDevitt, a hard-scrabble fighter, to lead his defense.
After several weeks of testimony and many days of deliberations, the jury announced that it could not reach a decision. The government immediately announced it would retry Dr. Wecht.
But that was before the defense filed even more requests with the 3rd U.S. Circuit Court of Appeals.
Last summer, the appeals court decided not to dismiss the case, but it did appoint a new judge to take over. In the meantime, the prosecution and defense began negotiating a possible settlement, though that never came to fruition.
At the time, Ms. Buchanan said she would retry Dr. Wecht if no settlement was reached. Now she must carefully consider her next decision, including its impact on both her and her successor.
Mr. Gormley, who taught Ms. Buchanan at the University of Pittsburgh Law School, does not believe that her legacy will be a driving force in what she chooses.
"I think she's going to make a decision on the merits," he said. "I think she's a strong enough person to do that -- regardless of this decision."
He added, though, that she must give at least some consideration to her potential successor.
Though there is still no timetable for the Obama administration to appoint new U.S. attorneys, the time will eventually come. That means that if Ms. Buchanan does choose to appeal, it's likely she would pass on the new lead prosecutor with the ongoing Wecht saga.
"I would think the responsible thing to do would be to punt and try to wait as long as possible [to file]," Mr. Gormley said. Otherwise, Judge McLaughlin's opinion is "a good, natural ending point for it.
"It's how the system is supposed to work. These are not supposed to be political footballs."
First Published May 17, 2009 12:00 am