Judges hear Wecht oppose retrial
Former Allegheny County Coroner Dr. Cyril H. Wecht, left, jokes with reporters after arguments about whether Dr. Wecht should be retried were made before the 3rd U.S. Circuit Court of Appeals.
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It appeared yesterday afternoon in Courtroom No. 6A that nearly everyone involved in the case -- from the three appellate judges to the lawyers before them -- believed that the judge who presided at the trial of former Allegheny County Coroner Dr. Cyril H. Wecht did not follow the rules to the letter in declaring a mistrial April 8.
But whether that failure rises to the level of having all 41 counts dismissed remains to be seen.
In lively oral argument that was filled with give-and-take among the parties, the judges from the 3rd U.S. Circuit Court of Appeals heard Dr. Wecht's plea to have the charges against him thrown out based on double jeopardy.
Judges D. Brooks Smith and D. Michael Fisher were in the courtroom, while Senior Judge Franklin S. Van Antwerpen was patched into the courtroom via conference call from his offices in Easton.
David R. Fine argued to the court that Judge Schwab failed to follow specific federal court procedure that required him to consult with counsel in declaring the hung jury, poll the jury and canvass for alternatives to a mistrial.
The appellate judges interrupted Mr. Fine almost immediately, with Judge Van Antwerpen asking why the defense didn't object to the procedures Judge Schwab used at the time.
"There remained in place the express order that counsel remain silent," Mr. Fine answered, later referring to that as "a muzzling order."
When he complained again that Judge Schwab failed to question each juror individually, Judge Smith said that wasn't quite right.
"He did poll the jury at one point," Judge Smith interjected.
"At one point," Mr. Fine responded. "Five days before."
He also criticized Judge Schwab's failure to instruct the jurors that they could have reached a partial verdict.
"But you objected to that earlier," Judge Van Antwerpen said.
Mr. Fine agreed but said that by April 8, the defense had changed its mind on that issue.
"On April 8, we certainly did not want a mistrial," Mr. Fine said.
Later, Judge Smith asked how Judge Schwab could have known that.
"He would have had no inkling at all of the change in your position, would he?" Judge Smith asked.
Mr. Fine agreed he would not, but again referred to the "muzzling order."
"If this jury was capable of returning a partial verdict, we'd never know that," Mr. Fine said. "Wecht could have been acquitted of one or more counts."
Judge Fisher chimed in, saying that an instruction on a partial verdict could appear to the jurors to be coercion.
Mr. Fine didn't believe that was possible because of the light schedule Judge Schwab allowed for deliberations, which included only two-thirds of a day, for only three or four days each week.
Throughout his argument, Mr. Fine spent a large portion of his time saying that Judge Schwab mischaracterized the jury's note.
At the time of the mistrial, the judge said the jurors were "hopelessly" deadlocked when the actual language of the note was "essentially" deadlocked.
Assistant U.S. Attorney Rebecca R. Haywood, who argued on behalf of the government, said the language of the note should not be at issue.
Judge Fisher seemed to disagree.
"There is a difference between 'hopelessly' and 'essentially,'" he said. "Why shouldn't the court have given the opportunity to ask questions and explore that?"
Ms. Haywood said Dr. Wecht's counsel had already gone on the record days earlier requesting a mistrial.
"He believed he understood what the position of defense counsel was," she said.
Judge Van Antwerpen said: "This wasn't the previous week."
When Ms. Haywood responded with "I don't know how clearer the jury could be in that statement," Judge Van Antwerpen quickly jumped in.
"This could be a lot clearer. This is not the fault of the jury. This is the fault of the judge for not giving the parties the full content of the note," he said, his voice considerably louder.
Later, Judge Van Antwerpen said: "That jury could have been ready to acquit Wecht on every count but one ... but we'll never know," he said.
Before concluding, Ms. Haywood said there were other interests at stake in the matter besides Dr. Wecht's.
"The government and the public have the right to see this case to verdict, as well," she said.
Mr. Fine, in the final minutes of his rebuttal, said the public interest is much less than that of his client, who if forced into a retrial would face an emotional and financial toll, continued public scrutiny and the potential for an innocent man to be found guilty.
"Dr. Wecht's right is a constitutional right to be free of multiple jeopardy," Mr. Fine said. "The people have the right to one full trial to convict the defendant.
"We will simply never know the answer to too many questions, simply because of procedure here."
First Published August 5, 2008 12:00 am