Feds plan to drop 43 counts in Wecht fraud case
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Less than two weeks before jury selection is scheduled to begin, federal prosecutors late yesterday filed a motion to dismiss 43 of the criminal counts against former Allegheny County Coroner Dr. Cyril H. Wecht.
That motion came on the same day that defense attorneys filed a second petition with the 3rd U.S. Circuit Court of Appeals asking that the judge overseeing the case be removed.
Both were developments in a case that has stretched for almost two years, involving nearly 650 separate transactions in the court record.
In his motion asking for dismissal of the charges, Assistant U.S. Attorney Stephen S. Stallings wrote that it 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.
Defense attorney Jerry McDevitt said he was appalled by the prosecution's action.
"We believe this action was taken because critical witnesses were not even interviewed before these charges were made, as we have said all along, and when recently interviewed those witnesses told the prosecution their charges were factually wrong," he said.
"Just [Thursday], the prosecution in this case represented to the United States Court of Appeals for the Third Circuit that it was prepared to go to trial on all 84 counts of the indictment, charges which were touted by the United States attorney herself in a highly publicized press conference and which were lorded over Dr. Wecht's head ever since then."
U.S. District Judge Arthur J. Schwab gave the defense until Thursday to respond in court to the government's latest motion.
The counts dismissed include many of the mail fraud charges, as well as several wire fraud counts.
In explaining the prosecution's decision, Mr. Stallings said that the dismissal will allow for a substantial reduction in the number of exhibits and witnesses he plans to offer at trial. Previously, Judge Schwab admitted thousands of pages of documents as exhibits, and the government's witness list includes 250 people.
Despite its dismissal of the charges, the government contends that the four schemes allegedly used by Dr. Wecht to commit fraud remain unchanged.
Jury selection in the case is scheduled to begin Jan. 10, with opening statements slated for Jan. 28.
Mr. Stallings said the result of the dismissal will be "a substantially streamlined set of charges that may be proven more efficiently and with less use of court time and resources."
The motion was filed at 5:19 p.m. An hour later, Judge Schwab issued an order giving the defense until Thursday to respond.
There was no one in the U.S. attorney's office last evening to comment on the matter.
Bruce Ledewitz, a law professor at Duquesne University, called the prosecution's move unusual.
"As a tactical matter, a lot of counts for the prosecution is a good thing, because for a jury, where there's smoke there's fire," he said, calling the 41 remaining counts a substantial amount. "You don't dismiss counts because you can't prove them. You only dismiss counts where trying to prove them will make you look laughable and ridiculous."
Earlier yesterday, Dr. Wecht's defense lawyers filed a petition with the appeals court asking for the removal of Judge Schwab, citing "deep-seated favoritism in favor of the government and antagonism toward the defendant."
A similar motion was filed in the summer of 2006, alleging bias on the part of Judge Schwab, who was appointed to the bench in the Western District of Pennsylvania by President Bush in 2002.
The three-judge panel of the appeals court rejected the petition then in a 2-1 decision, which included a strongly worded dissent.
Dr. Wecht's lawyers now argue that Judge Schwab failed to take the advice of the appellate court in its ruling keeping him on the case.
"Rather than remedying those problems, Judge Schwab has cemented them and reduced this case to a farce and the perception of his court as a Star Chamber," Mr. McDevitt wrote. "The actions of Judge Schwab throughout this case have been so unusual and outside the norm of judicial behavior as to create an almost irrebuttable presumption of bias and lack of impartiality."
The emergency filing includes a litany of allegations against the judge, including that he failed to grant a suppression motion regarding evidence seized from Dr. Wecht's private offices; that he has improperly ordered an anonymous jury in the case; that he has canceled every pretrial conference the parties were scheduled to have; and that he has allowed the prosecution to run a "smear campaign" against Dr. Wecht in the media.
Much of the 68-page petition addresses a faxed letter Judge Schwab received from a prosecution witness on Dec. 5. The judge didn't disclose that he'd received the letter until issuing an order regarding the anonymous jury on Dec. 21.
In the letter, Gerald Schiller applauded Judge Schwab's earlier decision to empanel an anonymous jury, telling him that he felt threatened by letters he'd received from Dr. Wecht in the past.
The two men have been exchanging letters to the editor in local newspapers since 2004. In his fax to the judge, Mr. Schiller states in his opening paragraph, "We have never had any personal, professional or public dealings with Mr. Wecht or his family, yet on two occasions in the past three years we have received vile and threatening personal letters from Mr. Wecht and more recently also from his son, Ben Wecht."
In a footnote of his order, the judge said he'd received Mr. Schiller's letter, but that he based his decision on the anonymous jury on "unprecedented" media coverage in the case.
In the petition for removal, Mr. McDevitt argued that Judge Schwab acted inappropriately by not revealing sooner that he'd received the letter and by failing to hold a hearing on the matter.
He further stated that Judge Schwab erred by allowing Mr. Schiller to be named as a witness in the case in the first place, since he states in his letter to the judge that he never had any personal or professional dealings with Dr. Wecht.
The defense has asked for the case to be put on hold until the matters are resolved.
"The simple reality is that only recusal will restore public confidence in the federal judiciary so damaged by this particular jurist, whose actions and conduct fall far below the traditions of excellence of the other jurists in the Western District of Pennsylvania," Mr. McDevitt wrote.
First Published December 29, 2007 12:00 am