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

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 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.

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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.

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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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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.

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