Wecht's attorneys claim double jeopardy
Share with others:
Nearly two years after appearing before the 3rd U.S. Circuit Court of Appeals on a set of entirely different issues, the attorneys in the case against former Allegheny County Coroner Dr. Cyril Wecht will do it again.
They will meet in the federal courthouse on Grant Street this afternoon instead of in Philadelphia, where they met in September 2006.
That time, there were three issues before the appeals court, including whether U.S. District Judge Arthur J. Schwab should be removed because of the appearance of bias. The court then found in a 2-1 decision that Judge Schwab would remain.
This time, Dr. Wecht's defense will argue that Judge Schwab erred in declaring a mistrial in April following the declaration of a hung jury after 10 days of deliberation. They will also argue that their client should not be retried on 41 counts of misusing his public office for private gain based on double jeopardy.
The three-judge panel, composed of U.S. Circuit judges D. Brooks Smith and D. Michael Fisher and Senior U.S. Circuit Judge Franklin S. Van Antwerpen, will give each side 20 minutes to argue.
Judge Fisher is the only one on the current panel that was assigned to the first case. The argument will be heard at 1:30 p.m. in Courtroom No. 6A.
Dr. Wecht's defense cites several examples of mistakes made by Judge Schwab in declaring the mistrial, including that he failed to poll the jury, that he failed to question the foreman and that he mischaracterized the split by calling the jurors "hopelessly" deadlocked when they wrote in their note that they were "essentially" deadlocked.
David Harris, a law professor at the University of Pittsburgh, said a double jeopardy argument is a tough one to make, but that in this case, he wouldn't rule anything out.
He wasn't sure how long the court would take to issue a decision -- the last time it took seven months -- but typically, he said, appellate courts will not be rushed.
The Wecht case, though, could be an exception.
"I would not be surprised if we saw the Court of Appeals move more quickly than usual because this is about retrying a public figure in a high-profile case, in which the judge has attempted to set a fast pace to get to retrial," Mr. Harris said.
Judge Schwab set the date for retrial for the end of May immediately after finding that the jury was hung.
However, the 3rd Circuit issued a stay on all proceedings pending the outcome of the appeal.
Though there has been some speculation on whether the 3rd Circuit judges might purposefully drag their feet in issuing a decision to see what happens with the presidential election, Mr. Harris doesn't think so.
"We ask our judges to evaluate the questions in front of them -- not as a political matter but strictly on legal grounds," he said.
He also noted that even if a Democratic administration takes over, it would be many months before a new U.S. attorney would be nominated and confirmed by the Senate.
First Published August 4, 2008 12:00 am