Jerry McDevitt on the Wecht Trial - Part II

Jerry McDevitt, famed Pittsburgh trial lawyer, comments on Dr. Wecht's trial and his successful defense:

Q: The trial of this case ended in a hung jury in April of last year, tell us a little bit about your theories of defense and your strategies in trying the case.

Mr. McDevitt: It was obvious going into the trial that the prosecution would be allowed to put in whatever it wanted and that our theories of defense were gutted by limine rulings. I don't even remember the number of limine orders against us there were so many. We were not allowed to tell the jury truthful things about the facts of the case. We were not allowed to tell the Jury that the lead FBI agent had been disciplined twice for dishonesty. We were not allowed to show the jury the statements made at the press conference which we intended to then show were false. They were allowed to put half the story in on certain issues, and we were not allowed to put the full picture in. I think that there were eight or so objections sustained in my opening alone. In the entire trial which ran for a few months, Judge Schwab sustained exactly two relevance objections of ours, compared to sustaining a very high percentage of relevance objections made during cross examination.

Nevertheless, I made up my mind that we would concentrate on the known holes in their case by focusing on the sloppiness of the investigation. In the suppression hearings, it came out that the Government had made a prosecutorial decision not to call the lead agent as a witness. Thus, we honed in on the failure to even contact alleged "victims" until after the charges were made, their failure to document exculpatory evidence when they finally did talk to those "victims' and essentially challenged them to call the FBI agent to the stand or suffer adverse inferences about him if they didn't do so. Knowing that the nun would kill them, and that they didn't really know what to do with her, I also emphasized in opening statement that any prosecutor worth his salt would call a Nun as their first witness if that Nun supported the most sensational charges they had made . Throughout the ensuing trial, we used every witness they brought in as a character witness for Dr. Wecht, and brought out time and again questionable tactics by the lead FBI agent and the prosecution. We taught the jury about 302's, and what they are, and every time a witness testified that they told the agent favorable information to Dr. Wecht we then brought out that the agent hadn't included that in his 302 or wrote none at all. We used their own witnesses to show how they had mislead key witnesses about key facts in the Grand Jury. In short, I decided that if they were going to try to keep the jury from hearing about what they had done they would have to object in their presence and make the Judge rule in their presence so the jury could see what was going on in the courtroom.


Q: This case appeared to be particularly contentious. Were you worried about being too aggressive with the government counsel and witnesses, so that the jury wouldn’t like you?


Mr. McDevitt: My own view is that a jury wants the lawyer to defend his client, and that was especially true with a man of the stature of Dr. Wecht. I think most jurors come to court with a basic sense that the proceedings are going to be fair, and that if they sense that the Judge is not being fair then they will come further to the side of the defense to even things out. As to our demeanor before the jury, we were always extremely professional, never aggressive with a witness in the sense of being insulting or anything like that, and focused on the content of the questioning and the themes of the case we defined for them in opening statement. The simple truth is there are two parties in all criminal cases, and the Government is always on trial also. The way to lose all credibility is to take cheap shots, but an unrelenting attack based on what you can show via cross of their own witnesses is very powerful.


Q: At the trial of the case, you did not put up any witnesses and Dr. Wecht, who has testified hundreds of times in civil cases did not testify. What factors went into that decision making and how difficult was the decision to not have Dr. Wecht testify?

Mr. McDevitt: The decision whether to put on a defense is the one that you know when you make it will either be said to have been brilliant or boneheaded depending on what the jury does. It goes with the turf. But as a general matter not calling a witness really allows one to focus all attention at closing on what the jury is to decide-did the Government prove a case. The focus is then all on their witnesses, their case, and their shortcoming. The jury isn't deciding whether they believe defense witnesses or the defendant. It permits a closing which puts the prosecution on the defensive about their case, as there is nothing else to talk about.

Moreover, in a long trial, putting on a defense means it is the defendant who is keeping the jurors from their jobs and family. And, during a trial, all counsel try to read jurors and it was my sense that there were several jurors who were disgusted by what they had seen and heard and would never vote to convict him of anything.

Thus, in the end, it wasn't a hard decision to make here. I also didn't want to give dignity to their case by making Dr. Wecht take the stand, and frankly wanted to beat the charges without calling a single witness. I thought doing so sent a message to the jury about what we thought of the case, and set up closing argument better.


Q: After the Third Circuit removed Judge Schwab so that a “less invested adjudicator” could take over, you renewed your motion to suppress which was successful, which lead to the dismissal of the case - why didn’t the “law of the case” doctrine bar relitigating that issue?

Mr. McDevitt: We did brief that issue, as it was an obvious impediment. Here, the Third Circuit had expressly directed that a "fresh set of eyes" look at the case when they removed Judge Schwab. We reminded the new judge that was his mandate, and in our brief cited to over a dozen cases where the Third Circuit had reversed Judge Schwab for doing the same thing he had done on the dispositive motions he had denied - failing to explain his reasoning, not articulating how he was avoiding controlling precedent, applying the law of other circuits instead of Third Circuit law and the like. We also pointed out to him several exceptions to the law of the case doctrine, including an omnibus one that allows a successor judge to revisit rulings if not doing so would produce an unjust result. We then argued that Dr. Wecht had already stood trial once with evidence that was seized by invalid warrants, and they couldn't get a conviction, and that to do so again would be most unjust if he agreed that the warrants were bad.

In his eventual opinion, Judge McLaughlin agreed that the mandate gave him the right to do so, and specifically found "that a court may depart from the prior ruling of a coordinate court when necessary to avoid an unjust result".

Q: Most folks don’t know that you were almost held in contempt - tell us a little about that and how much did that concern you?

Mr. McDevitt: Judge Schwab repeatedly cited to us a Fourth Circuit case where the lawyer was actually imprisoned for extrajudicial speech. He did so one time right when we were headed to Court for the original suppression hearings at the time he had the disciplinary reports of the lead agent under seal and us under an order that we couldn't talk about it even in court. He also issued an order prior to the original recusal motion that there would be contempt hearings after the trial. After the Third Circuit issued its rulings expanding free speech rights, and as noted above, the United States Attorney filed a motion seeking to have me incarcerated the first time we spoke. He did not threaten contempt then, but did refer it to the disciplinary board, which later tossed it out completely.

It is a weird feeling to see your picture on the front page of the paper under a headline that the prosecution is seeking to have you jailed in the midst of the case. Quite frankly, it angered me and just gave me more resolve. When that happened, instead of retreating, I called all the members of the media and gave an interview that we don't bully well and would continue to represent Dr. Wecht with even greater vigor. And we did.


Q: Jerry - is there anything you’re particularly proud of having litigated this case to the Third Circuit at least three times and having tried the case for almost two months?

Mr. McDevitt: Mostly, I am very proud that Dr. Wecht is now a free man again and that we were able to beat all 84 charges without calling a witness. Also, the law which came out of this case will help all defense counsel in high profile cases, especially when trying to preserve the presumption of innocence in the face of prosecutor remarks. The constitutional law on the First Amendment rights of counsel, coming from a unanimous circuit, should be very helpful to many, and the Fourth Amendment has been reinvigorated by the final decision in the case.


Q: Finally, are there any lessons learned from this case that you can share with us out here in the trenches?

Mr. McDevitt: To those trench warriors out there, I am reminded of an old maxim from my days in the Marine Corps-Don't jump out of the foxhole, because if you do you will usually be the first one shot.

Jerry, thanks very much for your time and again, congratulations.

Interview With Jerry McDevitt on Dr. Wecht's Trial

In the first of two posts, Pittsburgh criminal defense attorney, Jerry McDevitt, comments on his successful defense of famed pathologist, Dr. Cyril Wecht.

Q: Jerry congratulations on the dismissal of all charges in the Wecht case in the Western District of Pennsylvania earlier this month. (Readers can find earlier posts here) I want to talk with you first about the pretrial battles in the case - was there any part of the motions practice that you think the others of us in the trenches can learn from?

Mr. McDevitt: In the unique circumstances of Dr. Wecht's case, motion practice was aimed at constructing the legal defenses and was also the first chance to tell the other side of the story in a cohesive fashion. The United States Attorney had convened a high profile press conference in which she both touted the sheer number of charges hurled by her office (84) and highlighted especially inflammatory charges that Dr. Wecht had "literally traded" unclaimed cadavers for free lab space at a local Catholic University at which to conduct his private autopsy practice. This had caused intense adverse publicity which threatened his presumption of innocence.

Thus, we used the vehicle of a suppression motion not only to point out the problems with the key warrants, but to demonstrate the questionable origins of the investigation in the first place. It all started because the local District Attorney didn't like the independent manner of death decisions made by Dr. Wecht in cases involving deaths of citizens at the hands of local police. Put simply, the local DA wanted Dr. Wecht out of office so that the control over the manner of death determinations would be by an appointed official rather than an independently elected medical examiner. We then linked that motive to the manner in which federal agents obtained and executed search warrants on Dr. Wecht's place of business to show they just went into his office and grabbed anything, then started looking for anything they could find. By emphasizing that they took things like his files on JFK, Vincent Foster, and other high profile cases, and even books, it made it obvious they were not looking for evidence of specific crimes. We also drew into question the honesty of the lead FBI agent, although at the time we filed the motion we did not know the full extent of his prior misconduct.

At the same time, I started to attack the legal theories involved to show that the law was being bent in a unique, one of a kind prosecution, and that the case involved truly trivial charges, such as using the office fax machine to do personal business. We did so in order to combat any thought that the sheer number of charges was significant by showing that they larded up the indictment with dozens of counts that literally involved pennies. Doing so made the prosecution take some ridiculous positions regarding the honest services charges, and committed them to disastrous trial positions.

Given the nature of the charges and the press conference held by the United States Attorney, we also constantly honed in on one big point to make the overall point that the investigation was a shabby one by pointing out that the body trading charges necessarily meant that the head of the local Catholic University, who happened to be a nun, would have had to be the other side of that transaction. We then stated time and again that they had not even bothered to interview her before making those charges, and that they knew by the time of motion practice those allegations were categorically false, but continued with them rather than suffer the embarrassment of admitting that a United States Attorney would make such wild allegations without confirming the accuracy before doing so.

Ironically, I truly believed at the time that the suppression motion would be granted given the many glaring problems with the facial validity of the warrants and the manner by which those warrants had been executed.

Q: You moved to disqualify the district court judge several times, Judge Schwab - what brought that about, and why were you eventually successful in that endeavor?

Mr. McDevitt: The thought of moving to recuse a federal judge never occurred to me in nearly thirty years of practice, and no trial lawyer worth his salt ever wants to do that. But in this case, it really did become a matter of honor driven by respect for what a federal court is to stand for and almost always does stand for. Thus, we moved twice to have the Judge recused. The first time was after it was obvious that the Judge was acting more as an adversary against us, and doing things that are unheard of in criminal cases. He had entertained ex parte advocacy from the Government on their Giglio obligations regarding the OPR's own adjudicated findings that the lead case agent had twice been involved in dishonest behavior, telling us we had no right to even know what the government had submitted to him under seal. The Judge also devised ways to save the search warrants on grounds not even argued by the government.

Judge Schwab refused oral argument on everything, and then wrote opinions where he would not even address case dispositive issues we presented. While the contents of the OPR reports remained under seal and we were gagged by a protective order from even discussing them in open Court, he wrote opinions for public consumption trivializing those reports and making it sound as they were inconsequential records. He held contempt over our heads for our criticism of the prosecution’s conduct, at one point saying he would hold contempt hearings after trial. Then, after saying he would have four days of hearings prior to trial to determine whether the Government's 200,000 pages of exhibits were admissible, an alien concept to me, he sent out an order sua sponte declaring all their exhibits admissible because we supposedly had not given him a list of objections to all those 200,000 pages of exhibits. We then moved the first time to have him recused. By a two to one vote of the Third Circuit, he narrowly escaped recusal, and the plurality opinion strongly criticized many of his actions, including some of his decisions on the search warrants and prohibitions he had placed on our use of the disciplinary records of the FBI agent. No doubt, the Circuit thought its instructions would be heeded. At the same time, the Third Circuit ordered public disclosure of the FBI disciplinary records and exercised its supervisory authority to expand the First Amendment rights of defense counsel to publicly advocate on behalf of the client.

After that decision came back down, things did not get better. Despite the Third Circuit order expanding free speech rights of defense counsel, the first time we spoke about problems with the case the United States Attorney filed a motion seeking to have me imprisoned and my license revoked.

Judge Schwab also convened suppression hearings sua sponte with an ill-defined order rather than waiting for any adversarial guidance. After the hearing, the Government could not even muster a response to key Fourth Amendment problems made manifest by the hearing record, but once again Judge Schwab denied us relief without even addressing suppression arguments that were uncontested by the Government.

At the same time, Judge Schwab came out with a sua sponte order that the jury would be anonymous and that we were not even allowed to take the jurors real names out of the courtroom. These and other factors lead us to ask the Circuit a second time to remove him. Although reversing his anonymous jury order, he was left in charge of the case.

After trial, and his declaration of a mistrial using procedures that the Third Circuit found to be highly flawed, the Third Circuit sua sponte removed him and directed that a "less invested adjudicator" take over and examine the case with a fresh set of eyes. That was done, and Judge McLaughlin held two oral arguments on suppression issues, and eventually quashed the two major warrants, effectively killing the case on the very grounds we had presented as our first substantive motion to Judge Schwab back in April of 2006. 


 

All Charges Dropped in Wecht Case

The U.S. Attorney's Office for the Western District of Pennsylvania announced yesterday that it would drop all charges against former Allegheny County Medical Examiner Dr. Cyril Wecht, in a major victory for the defense, as reported by WTAE in Pittsburgh. The government had charged the 78 year-old Dr. Wecht with various alleged offenses, including using his county staff and resources to benefit his private practice, overbilling private clients for limousines and air fares and ripping off prosecutors for mileage fees as an expert witness.

All but 14 of the charges against Dr. Wecht had been dismissed by the time Dr. Wecht was tried in April of 2008. The trial resulted in a hung jury and U.S. District Court Judge Arthur Schwab declared a mistrial.

Dr. Wecht reacted to the announcement by criticizing U.S. Attorney Mary Beth Buchanan and her office for spending hundreds of thousands of dollars pursuing the case, and calling for President Obama to fire Buchanan. Dr. Wecht's attorney, Jerry McDevitt, said Buchanan's comments showed "the same lack of judgment that has fueled this case from day one," and suggested she resign.

Dr. Wecht told reporters that the prosecution had used up all his and his wife's savings, and that they were very much in debt. Dr. Wecht had been a celebrated Medical Examiner, conducting examinations on Elvis Presley, JonBenet Ramsey and Vince Foster.

Buchanan had given a press conference earlier yesterday in which she maintained that prosecuting Dr. Wecht had been the right decision, however she acknowledged that there were problems with the warrants issued in the case. In response to allegations that the prosecution had costs millions, Buchanan claimed that the cost of prosecuting Dr. Wecht had actually been less than $500,000.

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.

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.

Wecht Prosecutors Must Go

The United States Attorneys Office for the Western District of Pennsylvania should be removed from further duties related to the Cyril Wecht case. The public statements they are making to the press and in pleadings are duplicitous and misleading.

When it was discovered that the FBI was interviewing jurors in the case after the declaration of a mistrial last week, the spokesperson for the office stated:

“It is commonplace for the prosecuting attorneys and investigating agency, in this case the FBI, to participate in the post-verdict discussion with the jurors. Often that occurs before the jury leaves the courthouse. In this case the jury was excused before the attorneys and agents had an opportunity to speak with the members.”

Nothing could be further from the truth. In nearly 25 years of practice in a variety of federal courts, I have never seen, or heard of government prosecutors, or federal agents, trying to speak with jurors. In this case, that contact is even more remarkable, given the trial judges instructions for the jurors to keep their own counsel at the conclusion of the trial.

Now, in filings in district court, AUSA Stephen Stallings is railing against what he calls the defense counsel’s singular attempt to wage a media campaign to generate prejudicial pretrial publicity. Stallings was even so brazen as to write that the defense had “coordinated a false and prejudicial media blitz of staggering proportions” that was “amplified by the media”. 

Mr. Stallings – here’s a crazy idea – when you bring a case that has no merit, and the jury deadlocks in favor of the defendant, and then you send your stormtroopers out to interview the jurors – guess what – it looks bad. But, the only one making you look bad is yourself because you’ve lost all sense of perspective in your myopic efforts at conviction. 

A new set of eyes from Main Justice needs to review this case.

Retrial for Wecht - Shame on the Government

After fighting for months to get the district court removed from the Cyril Wecht case, defense counsel finally have some meat to that bone.  As set out below, the government has begun interviewing jurors from the case, much to the dismay of some of the jurors.  The authorizing official for that contact, my bet is, was the district court judge who presided at trial. 

Wecht's extremely capable counsel today filed a motion to require the disclosure of how the government obtained those names.

A little background is needed here, for Immediately after Judge Schwab declared a mistrial in the   case last Tuesday, the government inexplicably announced that it was going to retry Mr. Wecht. The government needs to face facts - the stuff of this case, is not the stuff of which federal criminal cases are made. (See this post here.)

The government’s immediate announcement of its intentions after the mistrial was declared only lends credence to former Attorney General and now Wecht criminal counsel, Richard Thornburg’s allegation that this case is politically motivated.

Following the mistrial, there started what can only be described as a bizarre set of happenings:

  • Judge Schwab queried AUSA Stephen Stallings on whether the government’s future plans for the case included a retrial. Stallings replied, “We do, and we will.”
  • Judge Schwab immediately set the retrial for May 27. Several days later the government announced that it would proceed to retrial on all remaining counts in the indictment. Let’s be clear here – the black eye the Department of Justice incurred under the disgraceful bumbling of Attorney General Alberto Gonzales was an embarrassment to our country, but that branch of our government is supposed to be motivated to do justice in its cases, not pursue some petty political vendetta. Long ago, the Supreme Court stated what have come to be the guiding light for the prosecutor's duty: "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Berger v. United States, 295 U.S. 78, 88 (1935).
  • But, within days of the mistrial, the FBI was out interviewing jurors in the case, which, quite frankly, is embarrassing. Many of the jurors were said to be surprised and upset by what they thought were heavy handed tactics.
  • Now, the defense has moved to dismiss the case on double jeopardy grounds, and has requested to find out how the FBI obtained the juror names.

My guess, the public pressure will force main justice to examine the propriety of wasting more government resources on this case.

The U.S. Attorneys Office in the Western District of Pennslyvania should be ashamed. They brought a petty case. They spent considerable, precious resources pursing the petty case. The jury was, apparently, split heavily in favor of acquittal. And, the government, apparently, can’t take their thrashing like adults.

Hey guys – your case stinks. Stop wasting time and money and move on to some real crime.

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.

Wecht Trial Jury Deliberations

Trial in the Wecht case began January 28 and jury deliberations now in only their sixth day will resume on Tueday, April 1, exactly three weeks after hearing the last witness testify. What is of note is the painfully slow progress of the trial occasioned in part by the court's habit of not holding trial on Friday’s, so that it could tend to other court business. On several other occasions, court was recessed for other reasons with the result being that from January 28 until the last witness was called on March 11, only 44 witnesses testified in 23 trial days.

Even MacBeth, Act V, Scene 5, would be unhappy that this trial has crept along at such a petty pace. That same slow pace has continued through jury deliberations. Jurors are deliberating only from 8:30 a.m. until 2:00 p.m. And, for the second consecutive week the jurors have been given a four day weekend

This lack of continuity during deliberations is rare. Many judges in high profile cases will, if the jury has not been sequestered during trial, begin sequestration during deliberations. This practice insures that jurors devote their undivided attention to the case.

Last week, the jury submitted the following question to the Court: “Out of the 41 counts, if any one or more count the jury cannot come to unanimous agreement on, does that constitute a hung jury?" (sic) The court, of course, answered in the negative. 

It will be interesting how this slow progress affects the outcome of the case. This reminds me of the first Scrushy trial, where he was acquitted following jury deliberations that took place in fits and starts over six weeks.