Court puts indefinite stay on Wecht trial
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Cyril Wecht will not be retried -- at least not yet. And maybe never.
The second trial on 41 felony counts that he misused the coroner's office for personal gain has been stayed indefinitely while the 3rd U.S. Circuit Court of Appeals considers a motion by Dr. Wecht's attorneys seeking to dismiss the case on grounds of double jeopardy.
That is the legal concept that a person cannot be tried twice on the same charges, though it typically applies when a case ends in acquittal.
In Dr. Wecht's case, his first trial ended with a hung jury after 10 days of deliberations following seven weeks of testimony.
Jerry McDevitt, one of Dr. Wecht's defense lawyers, filed a motion first in U.S. District Court in April, arguing that his client could not be retried based on double jeopardy.
The foundation of his case was that U.S. District Judge Arthur J. Schwab did not follow proper federal procedures in declaring the mistrial.
Among the failures Mr. McDevitt cited were the judge's decision not to poll jurors individually to ensure they were, in fact, deadlocked; not asking the attorneys if they consented to a mistrial; not showing the attorneys the final note from the jurors that said they were "essentially" deadlocked; and not questioning the jury foreman.
Mr. McDevitt also claimed that Judge Schwab acted inappropriately by asking the prosecution -- while the first jury was still present -- if it would retry Dr. Wecht.
Assistant U.S. Attorney Stephen Stallings announced that it would, and Judge Schwab set jury selection for Monday, with opening statements slated for May 27.
On May 2, after reviewing the defense motion to dismiss, Judge Schwab issued a 15-page opinion denying the request, stating that it was Dr. Wecht's defense team that initially asked for a mistrial in the case -- twice.
He called the motion to dismiss based on double jeopardy "frivolous."
"Defendant has no likelihood of success on the merits of this appeal, and reasonable minds cannot differ on this issue," Judge Schwab wrote.
David A. Harris, a law professor at the University of Pittsburgh, said that the appeals court's action in staying the retrial yesterday was highly unusual.
"It's an indication that they see it as a real and serious issue that must be decided before proceedings continue," he said. "Otherwise, appeals courts don't like to muck into these kinds of things."
The law surrounding double jeopardy is both technical and confusing, Mr. Harris said, and is "about as complicated as anything you'll find in criminal procedure."
The U.S. attorney's office refused to comment on the stay, but has said in court filings that dismissal based on double jeopardy is inappropriate.
Kenneth Hirsch, who teaches law at Duquesne University, said it will be up to a three-judge appeals court panel to decide if the judge has acted in a way that is "outside of his legitimate discretion."
"The court has acted wisely in ordering the trial be stayed because trials are expensive propositions," Mr. Hirsch said.
He referred both to the financial cost to the defendant and the emotional toll such a case can take.
The case has cost millions to defend, and Dr. Wecht has said publicly it has ruined him financially.
Beside giving the defense a chance to win its appeal, the court's stay of the trial could provide another benefit, Mr. Hirsch said.
"If this appeal drags on beyond President Bush's term of office, when he leaves, they may bring in a new U.S. attorney who doesn't feel inclined to prosecute this case again," he said.
Such a long delay may not occur, though, because the 3rd Circuit has ordered that briefs by both sides be filed by May 20.
"It has been a trial full of unusual twists and turns, unorthodox procedures and orders and ways of handling things -- all the way down to the very end," Mr. Harris said.
First Published May 9, 2008 12:00 am