Tuesday, April 15, 2008

The Wecht Case - Should There Be A Retrial?

Cyril Wecht's possible retrial is receiving close scrutiny, as it should. The 77 year old gentleman's trial went for 7 weeks, had hundreds of exhibits, and the government presented 44 witnesses. It probably cost the taxpayers a pretty penny to try this case, and most certainly the defense tab was likely to have been high. As I stated here:

"The case is a relatively simple one.  The government charges corruption with expansive statutes like wire fraud and honest services fraud under section 1346. They take each fax and make it into separate counts, even when the faxes were sent the same day. The Indictment makes one wonder what a case like this is doing in federal court, except for the fact that the accused is charged with activities while in his role as a county coroner."

See Indictment. It seemed like the government was throwing spaghetti against the wall and hoping something would stick.

But the jury was not as hungry as the prosecution hoped. And despite many days of deliberation, it was hung. A press report states that it was a hung with a majority in favor of acquittal (see here).

The happenings since the jury was dismissed have been disappointing.  It seems the FBI has engaged in post-trial conduct that includes contact with jurors. (see here)  There is question about the source of the names and contact information of the jurors, especially in light of a prior court order (see here)  One can't help but wonder here if the tables were reversed and the defense were engaged in such conduct if the FBI would tolerate this conduct.

The defense has filed a new motion, premised on double jeopardy. Argued is whether Federal Rule of Criminal Procedure, Rule 26.3 was violated in how the court determined it was a hung jury and whether there was "manifest necessity" for a mistrial.  (See Defendant's Brief in Support of his Motion to Dismiss the Indictment and to Preclude the Government From Further Prosecution in Violation of the Prohibition Against Double Jeopardy) - Download double_jeopardy_brief.pdf  Interesting commentary on this motion is offered by Professor Robert Weisberg in this comprehensive article by Jonathan Silver of the Pittsburgh Post Gazette.

But more important questions remain here.  First, is this case important enough to expend tax dollars on a retrial?  Has the accused, irrespective of guilt or innocence, been sufficiently punished by the physical, emotional, and actual cost of this long first trial? Second is DOJ's criminal division providing sufficient oversight here or are they leaving this decision to an individual US Attorney's Office? Third is someone scrutinizing the post-trial government conduct?

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/04/wecht-retrial-t.html

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