Could a hung jury force second Wecht trial?
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If jurors in the Dr. Cyril H. Wecht case remain hopelessly hung today and force a mistrial, the former coroner's defense team might be able to stand down and breathe easy for the first time since their client was indicted in 2006.
Prosecutors, though, will have to decide whether to ramp right back up.
After investing time, effort and resources to press a controversial case accusing Dr. Wecht of using public resources to enrich himself, would U.S. Attorney Mary Beth Buchanan want to go to the mat again with a notoriously tough defendant who won't back down?
Former federal prosecutors say it could go either way, but many agree that the U.S. government often retries cases in the rare event of a mistrial.
"In most instances, the government will retry the case on a hung jury," said Washington, D.C., lawyer Peter S. Spivack, a former assistant U.S. attorney in Los Angeles who prosecuted white-collar cases. "Part of the evaluation will be what are the votes for conviction and what are the votes on acquittal."
The 11 jurors deliberating Dr. Wecht's fate following the dismissal of one for medical reasons told U.S. District Judge Arthur J. Schwab last week they were at an impasse after nine days of poring over the evidence.
It is impossible to determine what is happening behind the closed doors of the jury room. But in the event of a mistrial, if attorneys are able to speak with jurors after the case ends, much might ride on whether the pendulum was swinging toward guilt or innocence.
"If it's 11-1 for conviction, then you've got a good possibility of retrying the case," said William A. Kolibash, former U.S. attorney for the Northern District of West Virginia.
On Thursday, Judge Schwab sent the jury back to talk some more and then granted them a three-day weekend. Despite knowing that the end was not quite at hand, defense attorneys Jerry McDevitt and Mark Rush could hardly contain their excitement over the possibility of a hung jury.
"It's going to be the longest three days of Jerry McDevitt's life, I can tell you that," said veteran Pittsburgh defense attorney Patrick Thomassey, who as a prosecutor in 1980 helped bring Dr. Wecht up on similar state charges. Five were dismissed, and Dr. Wecht was acquitted on the final charge.
Dr. Wecht eventually paid a settlement of $200,000. That, experts said, is one option open to the U.S. attorney's office as a way to "save face" after pouring so much into the case.
If they can't get Dr. Wecht on criminal charges the first time around, the theory goes, they might be inclined to drop charges if he pays a civil penalty.
But some strongly doubt that Dr. Wecht would ever go for such a solution.
"No chance at all," said Duquesne University law professor and longtime friend Bruce Ledewitz.
One potential problem with retrying the case is that the prosecution might have emptied its playbook while the defense's strategies remain secret. Assistant U.S. Attorneys Stephen S. Stallings and James R. Wilson called 44 witnesses over 22 days. The defense rested its case without calling anyone.
"It gives the defense an advantage on a retrial because they have the witnesses' prior testimony and they know what the witnesses are going to say," Mr. Spivack said.
Prosecutors will have to re-examine their witnesses, their strategy and even their indictment. They might decide to streamline the charges or not to call a particular witness the second time around.
"I have narrowed the focus. I think it's better to cut out if you've got something that's weak in there," Mr. Kolibash said. "If your key witness has been destroyed, I think you fold your tent -- if there's some credibility issues with your key people, things like that."
A decision on whether to retry the case would likely be made by Ms. Buchanan without any input from U.S. Justice Department headquarters. That would not prevent the defense, however, from trying to forestall a second trial by going over Ms. Buchanan's head to her bosses.
Defense attorneys have alleged a political motivation behind Dr. Wecht's prosecution, noting that he is a Democrat and Ms. Buchanan is a Republican.
Dr. Wecht's defense team includes former U.S. Attorney General and Pennsylvania Gov. Dick Thornburgh, who has testified before two House judiciary subcommittees about the case.
He also tried to stave off an indictment by talking with the deputy attorney general the day before charges were filed against Dr. Wecht, according to court papers.
Mr. Thornburgh has been present in the courtroom when the jury has had questions during deliberations. It would not be unusual for anyone who has such a prominent attorney with connections in Washington, D.C., to try to appeal to a higher power.
"A lot of those guys would go whining to main Justice and as a courtesy to them, main Justice would say, 'Hey, what's going on?' " Mr. Kolibash said.
It is unlikely, however, that the Justice Department would be willing to get directly involved in a decision to retry if it did not interfere with the original indictment.
Federal prosecutors have a reputation for putting together airtight cases and rarely losing. Mistrials are similarly few and far between. Last year, in 7,849 criminal trials spread among the country's 94 U.S. attorneys' districts, there were only 59 mistrials.
Losing every once in a while and being willing to walk away from further prosecution might actually be a good thing, said Robert Ridge, a Pittsburgh defense lawyer and former U.S. Justice Department trial attorney.
"It's not a good thing to lose, but the government can't be afraid of losing. It is the fact that the government loses from time to time that reassures people that these aren't show trials, that these are real," Mr. Ridge said.
"So if the government loses the case, it won't be the end of the world for the government. It might be a bad thing for Mary Beth personally, but as a practical matter, there are societal benefits to the government losing because then people believe, 'Yeah, you can fight City Hall.' "
First Published April 7, 2008 12:00 am