Neither side relishing retrial in Wecht case
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After more than 40 years as a trial lawyer, Stanton D. Levenson didn't mince words when describing the prospect of facing a retrial.
"Oh, God," he said, "it's just horrible."
From poring over trial transcripts to reviewing strategy, from replanning opening statements to mustering the energy and passion for a second go-around, retrials require a commitment from attorney and client that is physically, emotionally, mentally and financially draining.
Now imagine the prospect of living with a case for years, preparing for a seven-week trial, grilling 44 witnesses, familiarizing yourself with 260,000 pages of exhibits, enduring 10 days of jury deliberations -- and then having to do it all over again.
That is the unenviable prospect facing Dr. Cyril H. Wecht, his attorneys and federal prosecutors -- not to mention the judge, his court staff, investigators and witnesses.
On April 8, a jury said it could not decide unanimously whether the U.S. government proved its allegations that Dr. Wecht used public resources to enrich himself and defraud private clients while he was Allegheny County coroner. The case ended in a mistrial.
Prosecutors said they wanted to try the 41 counts again. A second trial is set for May 27 before U.S. District Judge Arthur J. Schwab, who presided over the first trial.
"From a judicial perspective, it reminds one of going to a play for the matinee session and staying for the evening play," said retired U.S. District Judge Donald E. Ziegler. "It's boring."
Attorneys compared retrials to eating three-day-old leftovers (not as good as the first serving), kissing one's sister (emotionally disturbing), and watching late-night TV reruns (nobody's interested).
"I think the first trial there's a lot of enthusiasm. I think the second trial's pure drudgery," said veteran defense attorney Thomas Ceraso. "It's tough to get up twice, it really is. The adrenalin's just not there the way it is the first time through."
Jerry McDevitt, Dr. Wecht's lead attorney, said he'll make do for what would be the first retrial in his 28-year career. At 58, Mr. McDevitt said he's prepared -- though not happy -- to return to seven-day work weeks and sometimes 20-hour days.
"You have to be able to function at a high level on three to four hours of sleep a night at best. It's a physical drain unlike most people realize. You don't have time to eat. I lost 20 pounds during that trial," an already lanky Mr. McDevitt said. "I survive on caffeine and nicotine. I always say it's the food group of a trial lawyer."
Mr. McDevitt will again go up against lead prosecutor Stephen S. Stallings. The U.S. Attorney's Office declined comment for this story, but court records show that Mr. Stallings tried a drug case three times while working as a federal prosecutor in Florida before the defendant was found guilty.
Mr. Stallings' partner, Assistant U.S. Attorney James Wilson, also has experience with retrials. He prosecuted video poker kingpin John "Duffy" Conley twice in the 1990s. Jurors deadlocked the first time, forcing a mistrial. Prosecutors won a conviction on some counts during the retrial.
"You've got to be careful that you don't fall into a trap of saying, 'I know everything.' You've got to stay well-prepared both times. You can't assume that because you've cross-examined this witness before you're not going to have trouble. You can't be lax," said defense attorney James Wymard, who has had his share of high-profile retrials -- including going up against Mr. Wilson in the Conley case.
Experts are split as to which side benefits from a retrial. Some say it is the defense, since they have had access to all the prosecution's evidence following the first courtroom clash, including grand jury testimony and FBI interviews of witnesses.
That might be especially true in this case, since Dr. Wecht's legal team opted not to call any witnesses or put on a defense beyond cross-examining people testifying for the government.
"Usually a retrial is a huge disadvantage for the defense, but where you haven't put your witnesses in, that's a different story. Once you put your case on, the cat's out of the bag," Mr. Levenson said.
Others counter that prosecutors can tighten up their case during a second trial, eliminate weak witnesses and focus their direct examinations so they don't create openings for defense attorneys to exploit on cross-examination.
"It places the prosecution as a general rule in a very strong position," Mr. Ziegler said. "It will generally have a parry for every thrust."
No matter how familiar each side is with the other's tactics, much in a criminal trial depends not on the lawyers, but on the 12 people who weigh the evidence, some experts say.
No two juries are the same, and lawyers have loads of stories about how they goofed in trying to guess which way a jury was leaning by reading their body language.
"It sort of points out the unpredictability of juries and the fact that what impression one jury may draw from a trial could be vastly different from a subsequent jury," said Philadelphia attorney and former federal prosecutor Henry E. Hockeimer, who handled a bank fraud retrial.
Mr. Hockeimer said prosecutors face a letdown after a hung jury.
"From the prosecution's standpoint, you've already been deflated because you had an across-the-board hung jury," Mr. Hockeimer said. "A lot of times you'll have some sort of compromise verdict where if there's anything to the case the jury will come back and acquit on some counts and convict on others."
The final piece of the retrial puzzle concerns the person at the center of the action: the client.
While retrials might be agonizing for everyone involved in the mechanism of trying a case, no one suffers more than the defendant whose fate is on the line.
"It's a grueling experience," Mr. Levenson said. "It's like a constant physical pain that won't go away, so you learn to live with the pain. You learn how to compartmentalize it and get on with your life. That's easy advice to give but hard to live by."
First Published April 20, 2008 12:00 am