Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

Last Thursday, the U.S. District Court for the Western District of Pennsylvania, District Judge Sean J. McLaughlin presiding, ruled that the government could not use evidence obtained from two search warrants against former Allegheny County Coroner, Dr. Cyril H. Wecht, as reported by the Pittsburgh Post-Gazette. The warrants were issued for Dr. Wecht's pathology laboratory in 2005. Agents seized 20 boxes of private autopsy materials, as well as a laptop computer beloning to a former assistant of Dr. Wecht. The Court held that the warrants were not sufficiently specific, overbroad, and ran afoul of the Fourth Amendment.

Dr. Wecht's attorney, Jerry McDevitt, told the media that, without the evidence, the government has nothing left with which to prosecute Dr. Wecht. Mr. McDevitt states that the government will be precluded from using evidence obtained with the help of the tainted evidence as well. Mr. McDevitt had originally filed a motion to suppress back in April of 2006.

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The sounds emanating from the U.S. Attorneys Office in Pittsburgh this week were more nails being pounded into the coffin of the Cyril Wecht prosecution. No doubt realizing that the efforts of the last two years in the office were going down the drain, it was announce that Stephen Stallings, the lead prosecutor, is leaving the office to return to private practice. Stallings, as you might recall is the zealot who immediately announced, following the declaration of a mistrial, that his office would prosecute the case again. Since trial began in this case, it has become more and more apparent that this case had no business being prosecuted in federal court.

• Jurors expressed the view that this case was politically motivated;
• Congress is investigating whether the case is politically motivated; and 
• The Third Circuit issued a stay so that Stallings' attempted retrial could not take place immediately following the declaration of the mistrial, and oral arguments are scheduled before the Third Circuit on July 25.

My take is, however, that as long as U.S. Attorney Mary Beth Buchanan stays in office in the Western District of Pennsylvania that this case is at peril of being resurrected. She simply can't afford to have fresh eyes look at this case and make the decision to put this case where it belongs - the trash bin. 

Stallings can enter private practice comforted by the fact that the last two years of his practice in the Department of Justice court were marred by his myopic pursuit of a case that should have never been brought!

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In an Order issued Thursday, the Third Circuit Court of Appeals has delayed the retrial of Dr. Cyril Wecht. By way of brief background, the jury in Wecht’s case (a case that I’ve previously stated needs to be canned by Main Justice) hung on all 41 counts against him.

Wecht’s counsel then filed a Motion to Dismiss based on Double Jeopardy grounds. The district court subsequently found that the attempt to delay a retrial on the basis of that claim would be frivolous and would not delay the retrial, jury selection for which was to start today. An immediate appeal followed, and the Third Circuit issued an Order putting the retrial on hold and setting a rather ambitious briefing schedule.

Raising a Double Jeopardy claim following the declaration of a hung jury is a reasonably dense legal issue, and I would be surprised if the Third Circuit can turn out its opinion within a month of the final brief, which is scheduled for May 20, 2008.

In the meantime, the trial judge has issued a deliberate and studious Order denying another motion to recuse.

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The fur continues to fly in the Wecht case in the run up to the retrial, currently scheduled for May, 27 2008. 

As I have previously stated in this blog, it is my hope that this blog will raise the standard of the criminal defense bar by posting pleadings that can be accessed and then used in one’s own practice. In that respect, the filings by Wecht’s counsel provide us with an excellent standard to emulate:

•             The defense has recently filed a Motion to Dismiss for Prosecutorial Misconduct (the brief is available here), alleging that the investigating agent and the lead AUSA have committed prosecutorial misconduct which infected the search warrant affidavit and the trial by suggesting that the movement of certain evidence occurred on one day in an effort at concealment, when, in fact, it occurred on a different day, such that no concealment could have occurred. This post trial motions practice is of an exceptionally high quality and brings to light some very disturbing allegations related to the prosecution’s handling of this troubling case.
•             The defense has Renewed its Motion for Verdict of Acquittal under Federal Rule of Criminal Procedure 29 alleging that the government failed to prove any misrepresentation or concealment. It is particularly interesting how interwoven these pleadings are because the Renewed Motion for Verdict of Acquittal ties in nicely with the prosecutorial misconduct motion and the government contention of concealment of evidence, which, is at the very least mistaken.  
•             And, finally, the defense has raised a Double Jeopardy claim related to the manner in which the mistrial was declared (this is no doubt a long shot, but generally a litigant is entitled to a direct appeal from the denial of a double jeopardy claim), and now seeks to appeal the trial judge’s denial of that motion.

Wecht is being capabably represented. These pleadings provide all of us in the defense bar with exceptional post judgment guides.

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The case of the Wecht jury deliberations gets curiouser and curiouser. Remember now, since deliberations began on March 18, 2008, the jury has deliberated on only 8 of the intervening 22 days, and they have had two consecutive four day weekends. The irony here is that the defense has blasted the district court for months now, alleging judicial bias, but if there is a way to interrupt the continuity of jury deliberations, it is to have them deliberate only 5 hours and a half hours  a day and only 3 days a week. The result, 22 days after deliberations began, the jury has deliberated a total of approximately 44 hours. Not surprisingly, out of this jumbled deliberation arises jury confusion, over what appears to have been a weak case to begin with (see earlier post here).  

The latest saga began when a male juror took ill on Tuesday (see here). Judge Schwab then dismissed the juror, apparently without any inquiry of the juror’s physician, and without taking any testimony from the juror. A rare move indeed. The defense filed a motion to vacate that order (see brief here). I would argue that the defense has an absolute right to have the issue of the juror’s physical ability to continue deliberations vetted in open court, on the record. Not surprisingly, defense counsel objected vehemently, and now we know why – this juror was a male prison chaplain.

In an earlier post, I posed the question, whether the stuff of this case had the makings for a federal criminal prosecution. Not to prejudge before the case is done, but the jury’s apparent deadlock suggests the obvious answer.

To complicate things and to move the case further down Alice’s rabbit hole, the jury today announced that “they are deadlocked”. The court then individually questioned each juror about whether they were, in fact, deadlocked, and then, each juror having answered in the affirmative, the court sent them back to continue deliberations!! Not surprisingly, the defense was apoplectic. And, to round this bizarre course of events out – no deliberations tomorrow – the jury returns to continue deliberations on Monday.

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