Posted on May 12, 2008 by Thomas Withers

Third Circuit Delays Wecht Retrial

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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Posted on May 5, 2008 by Thomas Withers

Wecht Fur Continues to Fly

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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Posted on April 4, 2008 by Thomas Withers

Through the Looking Glass - The Wecht Jury is Deadlocked - Deliberations Continue

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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