Wecht lawyers call a second trial double jeopardy, ask for dismissal
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Dr. Cyril H. Wecht's lawyers yesterday asked a federal judge to toss out the case against him on the grounds that a second trial would technically amount to double jeopardy -- even though the former Allegheny County coroner was not acquitted the first time.
Double jeopardy is the constitutional principle that a defendant cannot be tried twice on the same set of facts.
Dr. Wecht's public corruption case ended last week with a mistrial. A second trial on the same 41-count indictment is scheduled to begin May 27.
Defense attorneys also implied that the government might have violated rules set down by U.S. District Judge Arthur J. Schwab regarding compiling information about jurors.
Dr. Wecht's legal team based its double jeopardy argument on technicalities, writing that Judge Schwab did not follow federal trial rules and protocols suggested by an appeals court.
Citing an 1824 U.S. Supreme Court opinion, lead defense attorney Jerry McDevitt wrote that Judge Schwab did not meet a legal standard of ensuring there was a "manifest necessity" to declare a mistrial.
Judge Schwab should have given both sides a chance to comment on "the propriety" of declaring a mistrial, to say whether they consented and to offer alternatives.
If the court declares a mistrial too hastily, "any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause," Mr. McDevitt wrote, quoting the 3rd U.S. Circuit Court of Appeals.
Mr. McDevitt also said Judge Schwab did not follow a protocol suggested by the 3rd Circuit that includes questioning the jury foreman.
A Stanford University law professor who reviewed the Wecht team's brief for the Pittsburgh Post-Gazette said the defense made a legitimate argument but doubted it would prevail before an appeals court.
"It is true that on a couple of points especially involving the [jury] foreperson there seems to be some 3rd Circuit precedent which this judge wasn't paying much attention to," Robert Weisberg said. "But the remedy of dismissal with prejudice is really extreme. Even if the judge was a little careless here, it's sort of an excessive reward for the defense."
The defense's other filing deals with FBI agents contacting discharged jurors after the mistrial to "learn about their experience as a juror," according to an e-mail Assistant U.S. Attorney Stephen S. Stallings sent Thursday to the court.
Mr. McDevitt, who has jumped on some jurors' characterizations of these contacts as "intimidating," wrote that both sides were under "strict orders" from the judge not to record the jurors' names during jury selection.
Judge Schwab took great pains to shield jurors' names from the public, citing what he considered "unprecedented" news media coverage of the Wecht trial.
Mr. McDevitt questioned whether prosecutors and the FBI complied with court orders.
"Absent strong action by the court, designed to flush out how the FBI got jurors' names, every prospective juror now has to fear the specter of FBI agents calling them if they do not vote to find Dr. Wecht guilty," Mr. McDevitt wrote.
First Published April 15, 2008 12:00 am