Federal appeals court removes Wecht judge

| Saturday, Sept. 6, 2008

A federal appeals court on Friday took the rare step of removing the trial judge from Dr. Cyril H. Wecht's public corruption case.

The 3rd U.S. Circuit Court of Appeals in Philadelphia removed District Judge Arthur J. Schwab from the case for "a reduced level of rancor."

Wecht's lawyers repeatedly have sought Schwab's removal from the case on the grounds of bias. In removing the judge, the appeals court rejected a defense request to dismiss 41 criminal charges against Wecht, 77, of Squirrel Hill.

Schwab declared a mistrial in April after the first trial because the jury could not reach a verdict.

Schwab could not be reached for comment.

Legal experts agree that it isn't often that an appeals court removes a trial judge, and it's even more unusual for that decision to come without a request by either party. The government does not keep statistics on judge removals.

"That's very rare. It's considered to be a disciplinary action," said Sheldon Goldman, a law professor at the University of Massachusetts-Amherst. "This case is likely unprecedented."

William Snyder, a former federal prosecutor in Pittsburgh who teaches law at Syracuse University, said "it is truly extraordinary that the court found it necessary to dismiss Judge Schwab from the case - even more so because it took that step on its own without anyone currently asking it to do so."

Schwab repeatedly clashed with defense attorneys Jerry McDevitt and Mark Rush before and during the trial. The appeals court fielded 18 appeals related to the Wecht case since the former Allegheny County coroner's indictment in January 2006 on charges he abused his office for personal gain.

"The trial judge has been the referee in a heavyweight fight, and, as we have ruled, has generally made the correct calls, with some exceptions," Judge D. Michael Fisher wrote in the 44-page unanimous opinion. "The problem today is not so much the appearance of bias as it is the appearance of litigation at a combative tenor that likely will not abate were Judge Schwab to stay on the case."

Fisher, who was joined in the opinion by Judges D. Brooks Smith and Franklin S. Van Antwerpen, wrote of the need for "fresh eyes" and "fewer forays to this court by the parties."

The appeals court said Schwab was correct in declaring a mistrial after jurors twice said they were hopelessly deadlocked, but said the judge "reached that conclusion through a highly flawed set of procedures."

Following seven weeks of testimony and three weeks of deliberations, jurors in the first trial deadlocked on all counts and Schwab declared a mistrial on April 8.

Jurors first indicated on April 3 they could not reach a unanimous decision on any of the counts. Schwab sought advice from Wecht's lawyers and prosecutors on how to proceed, questioned jurors individually about their decision and ordered them to deliberate further.

When the jury again said on April 8 it could not agree on any of the counts, Schwab barred either party from making objections, did not seek their input and declared Wecht would be retried before dismissing the jury.

The appeals court said Schwab should have followed his first routine since the jurors deliberated further.

"The government is pleased the court of appeals accepted our position and reached the conclusion that the double-jeopardy clause does not preclude a retrial in this case," U.S. Attorney Mary Beth Buchanan said in a brief statement.

McDevitt said he hopes the government reconsiders a second trial, or that a new judge dismisses the case.

"This case has resulted in the expenditure of millions of dollars by both sides, and has not secured a conviction on so much as a single count," McDevitt said in a statement.

The Clerk of Courts office said it could take up to three weeks before the case is reassigned to another judge.

Schwab, 61, joined the district court in 2003 after being nominated by President Bush. He had headed civil litigation groups for two of Pittsburgh's largest law firms since 1973.

Appellate judges rebuked Schwab in 2004 for issuing an opinion dismissing a case as his own work when it had been ghostwritten by defense lawyers. This year, the appeals court twice ordered Schwab to release jurors' names from Wecht's trial after news outlets, including the Tribune-Review, fought his decision to seat an anonymous jury.

In June, lawyers ranked Schwab the lowest among federal judges in Pittsburgh in the Allegheny County Bar Association's annual judicial survey. Schwab earned poor marks in impartiality and temperament.

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