This past week, a federal appeals court put a second trial for former coroner Dr. Cyril Wecht on hold. The panel of judges will decide if a second trial should be forbidden on the basis of double jeopardy. That overshadowed another development: Judge Arthur Schwab's refusal of the latest defense call to remove himself from the case, should it go forward.
Here are some highlights from Judge Schwab's 33 page opinion.
"...The Court denies defendant’s Renewed Motion for Recusal because a reasonable observer, aware of all of the facts and circumstances of record, could not find an appearance of partiality or bias..."
"...There is nothing about this Court’s fair and impartial rulings and statements throughout these proceedings that present, to any reasonable observer who knows all of the facts and circumstances of record, any degree of favoritism or antagonism -- let alone the sort of “deep-seated” or “high degree” of favoritism or antagonism that might qualify as one of the rare exceptions to the general rule..."
"...It is crucial to the proper functioning of our justice system for judges to remain upright in face of political and media clamour that occasionally accompanies high profile cases, and resist the temptation to “capitulate,” so as not to encourage such extraneous pressure on judges in the future..."
"...Defendant’s Brief... attaches an affidavit executed by [dismissed juror] Stanley Albright... which defendant contends contradicts this Court’s statement in open court...that he had requested to be excused. This convoluted ground for recusal suggests, frankly, that this Court lied about Mr. Albright’s condition when it discharged him...for the purpose of securing an advantage for the government..."
"...some additional observations are appropriate in order to correct a few of defendant’s distortions of the record and dispel his untenable claims that this Court was less than accurate about the reasons it discharged Stanley Albright and that the Court was attempting to help the government obtain a conviction by Mr. Albright’s discharge."
"First, this Court has never spoken with Mr. Albright. All communications with the Court were through the Court’s bailiffs on April 2 and 3, 2008, and the Court’s statements in open court were accurately based on what Mr. Albright told one of the bailiffs the morning of April 3rd (as he later confirmed to the other bailiff)..."
"...Second, Mr. Albright’s April 17th affidavit is not materially different from the Court’s explanation in open court, or the letter he faxed to the Court later on April 3rd...."
"...Third, there is nothing on the record that indicates which way Mr. Albright might have been leaning before the Court discharged him, and he does not disclose his vote on any count ofthe indictment in his affidavit..."
"...The Court also shares Mr. Albright’s regret that he was unable to remain with the jury through its final day of service, when the Court declared a mistrial and discharged the jury on April 8, 2008. However, there is no doubt on the record before the Court, including Mr. Albright’s affidavit of April 17th, that he was unavailable for jury deliberations on April 2nd and 3rd, and that the Court exercised sound discretion in discharging him for good cause and directing the jury to continue..."
"...One knowing all of the facts of record could not possibly infer that this Court “wielded the club of contempt” when it directly issued a much needed (and probably overdue) reminder to counsel for both parties to conduct themselves professionally, as Officers of the Court, so as to protect the integrity of the jury pool from the possibility of contamination by the media maelstrom. Cases and controversies before a federal district or appellate court must not be adjudicated in the court of public opinion..."
"...the transcript of the proceedings -- will find some rulings that favor the government, and some that favor defendant. The record also shows that many significant rulings on motions and on disputes as to jury instructions favored the defendant, and that the unhurried, non-coercive jury deliberations were beneficial to him as well."
"...The record contains no hint of bias, prejudice or ill-will toward the defendant or his attorneys. Despite defendant’s continued threats and filings of recusal motions and his abuse of the writ of mandamus, this Court will, as it always has done, faithfully endeavor to follow its constitutional obligations and continue to provide defendant with a fair trial before an impartial jury of his peers..."
"...Defendant has every right to appeal any and all of the rulings and decisions of this Court in the event of an adverse jury verdict upon retrial, at the proper time... Defendant has no right, however, to disrupt ongoing criminal proceedings by engaging in repeated, frivolous attempts to judge-shop by removing the presiding District Judge based solely on defendant’s disagreement with some of the Court’s rulings..."
"...For all of the foregoing reasons, defendant’s Renewed Motion for Recusal is DENIED."
"SO ORDERED this 8th day of May, 2008.
s/ Arthur J. SchwabArthur J. Schwab
United States District Judge "
