Appeals Court: You Can Retry Wecht...That Doesn't Say You Should

U.S. Attorney Buchanan, Dr. Wecht, & Judge Schwab

UPDATE: Video of my Channel 4 Action News report with comments from Pitt Law Professor John Burkoff.

Here's are some key passages from the appeals court ruling, written by Judge Mike Fisher.

Our holding today that there is no constitutional bar to retrying Dr. Wecht does not stand for the proposition that he must be retried. That is a decision that rests with the Government. Indeed, Wecht’s prosecution is one that already has spanned more than thirty months. It has resulted in numerous appeals and emergency motions to this Court and, with the filing of this opinion, three lengthy precedential opinions.

If the Government chooses to proceed with a retrial, our view is that both sides and the interest of justice would benefit from a reduced level of rancor in the courtroom, fresh eyes on the case, and fewer forays to this Court by the parties, including intervening parties. This has been a highly charged, lengthy, and complex case involving serious criminal charges brought against a prominent public figure. 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...

...And in today’s decision, even though there was manifest necessity to declare a mistrial in satisfaction of the Fifth Amendment, the District Court reached that conclusion through a highly flawed set of procedures...

...Therefore, in the exercise of our supervisory powers... we will direct that Judge Schwab be relieved of further duties on this case and that the Chief Judge of the District Court assign a new judge to handle any future matters in the case including any retrial.

[Note: in the following passages, the opinion weaves in quotes from other courts' rulings.]

Although we tread cautiously because “[t]he decision to remove a judge from an ongoing trial should be considered seriously and made only rarely,” ... this case has progressed so unusually as to become sui generis [Note: unique or "of its own kind"]...

[The opinion then quotes heavily from other courts' case in which...]

... even absent allegations of bias, because of the highly unusual procedures the trial judge employed, “the appearance of justice requires reassignment on remand”... ..“that it is necessary to remand the case to a different district judge” because [the] court of appeals was “disturbed by the manner in which the district court treated this case on our initial remand"...

We thus end this chapter in the Wecht appellate saga by coming full circle. In Wecht I, the issue of whether Judge Schwab should be recused for bias figured prominently in the appeal. In that opinion our dissenting colleague concluded...“that another judge should preside over the trial of Wecht"...

As we have just described, 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. We therefore direct that a less invested adjudicator take over from here.

For the foregoing reasons, we will affirm the District Court’s order denying Wecht’s motion to dismiss the indictment. We nonetheless will exercise our supervisory power and remand this case to the Chief Judge of the District Court to reassign the case to a different judge.

Judge Michael Fisher adds in a closing footnote:

..Certainly Wecht should be pleased with our reassignment of the case. Not only did he move for Judge Schwab’s recusal at issue in Wecht I, he did so again.. in the form of a petition ...to our Court, which we denied on January 2, 2008. Wecht then moved for recusal again...more recently on April 21, 2008. Judge Schwab denied the motion on May 8, 2008.

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