Appeals court backs judge in Wecht case
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A federal appeals court has rejected a request by former Allegheny County Coroner Dr. Cyril H. Wecht to remove the judge overseeing his case.
In an order entered late Wednesday, a three-judge panel of the 3rd U.S. Circuit Court of Appeals denied a petition asking that U.S. District Judge Arthur J. Schwab be taken off the case, which is scheduled to go to jury selection on Thursday.
Without issuing a formal opinion on the request filed by defense attorney Jerry McDevitt last week, Judges D. Brooks Smith, D. Michael Fisher and Franklin Van Antwerpen denied the motion, writing only that Judge Schwab "shall continue to preside over this matter."
Yesterday, Dr. Wecht's defense lawyers filed a motion opposing the prosecution's efforts to dismiss 43 of the 84 counts against him without prejudice, which means they could be refiled later.
The defense team said if the counts are to be dismissed, it must be done with prejudice, to ensure that the government isn't acting in bad faith.
Assistant U.S. Attorney Stephen S. Stallings told the court that the reduction in charges was being done "to streamline the proof and timing of the trial." He also noted "recent discoveries that certain individual packages set forth in the mail fraud counts ... may have been hand-delivered" rather than mailed, an essential element in a charge of mail fraud.
Mr. McDevitt said that dismissing the charges on the eve of the trial would significantly affect the defense strategy.
"The reason proffered by the government of why it now seeks dismissal is pretext for the government failing to complete its obligations of making a proper investigation before indicting Dr. Wecht, thereafter violating standards of fair play and decency," he wrote.
Mr. McDevitt has asked for a hearing on the matter.
Experts in criminal procedure said it's not unusual to dismiss criminal counts that close to trial. But they differ on what it might mean.
Nancy King, a law professor at Vanderbilt University, said that in some jurisdictions more strict scrutiny of a case is done before indictment, while in others investigators continue to gather information up until -- and even during -- trial. If prosecutors run across problems, either with evidence or witnesses, then charges get dropped.
"Dismissals are very common for all sorts of reasons at any time," Ms. King said.
Joshua Dressler, who teaches at Ohio State University's law school, said it is odd for more than half of a prosecutor's case to be dismissed that close to trial.
It's common for the government to indict on a large number of charges, he said, especially because it can help pressure a person into taking a plea bargain.
He thought Mr. Stallings' stated reason of streamlining his case sounded "a little hard to believe."
"If a prosecutor were really concerned about that, they would have thought about that a lot earlier in the ballgame," Mr. Dressler said.
It's more likely, he said, that the investigation in its early stages was handled too quickly and was sloppy and that prosecutors are trying to clean it up before trial.
The charges to be dismissed include both wire and mail fraud. Five counts of theft from an organization receiving federal funds remain untouched.
The motion seeking removal of Judge Schwab was the second filed by Dr. Wecht's defense since the case began.
In the first instance, Mr. McDevitt argued that the judge appeared to be biased in favor of the prosecution.
The 3rd Circuit ruled 2-1 in April that Judge Schwab should remain on the case.
Most recently, the defense alleged that Judge Schwab engaged in inappropriate conduct.
In early December, a government witness in the case faxed Judge Schwab a letter encouraging him to stick by his order requiring an anonymous jury in the case against Dr. Wecht. Judge Schwab didn't reveal that he'd received the letter until more than two weeks later, which Mr. McDevitt said was improper.
A news media appeal is pending before the 3rd Circuit related to the seating of an anonymous jury. It is scheduled to go before a panel of judges next week.
Opening statements in the trial are scheduled for Jan. 28.
First Published January 4, 2008 12:00 am