Wecht ruling could end his trial: Prosecution loses key decision on search warrants

Source: Pittsburgh Post-Gazette
By Paula Reed Ward and Sadie Gurman
Friday, May 15, 2009

Nearly 3 1/2 years after it began, the government's criminal prosecution of former Allegheny County Coroner Dr. Cyril H. Wecht was dealt a crippling blow. U.S. District Judge Sean J. McLaughlin yesterday threw out crucial evidence in connection with the fraud and theft case the government has been pursuing against Dr. Wecht. Prosecutors claim Dr. Wecht used his public office for private gain.

"Now is the time to end this and let this man get on with his life," said defense attorney Jerry McDevitt.

The U.S. attorney's office must decide whether to appeal.

Margaret Philbin, a spokeswoman for the U.S. attorney's office, said the opinion was being reviewed to determine the appropriate course of action.

"We haven't backed down from the fight from day one and we won't now," Mr. McDevitt said. "They have a decision to make. I hope it's not one that is born out of a desire to retaliate."

No matter that decision, an elated Dr. Wecht said he felt vindicated by the court's ruling.

"I feel a great sense of relief," he said. "It has been a tremendous ordeal. I would not wish this on my worst enemy."

In a 55-page opinion issued late yesterday, Judge McLaughlin dismissed crucial evidence seized during the execution of two search warrants in April 2005.

Judge McLaughlin found that a warrant served at Dr. Wecht's private pathology offices on Penn Avenue, and another used to seize a laptop used by his administrative assistant, failed to follow the Fourth Amendment's requirement that the warrants be specific.

The warrant that was served on Dr. Wecht's business offices called for the seizure of approximately 20 boxes containing private autopsy files. But Judge McLaughlin found that the warrant provided no meaningful guidance to agents executing it to distinguish between valuable evidence and otherwise unimportant files.

Further, he added, that the government had sufficient information that could have allowed for more particularity in the warrant, but didn't include it.

Brad Orsini, the FBI agent leading the investigation, did not incorporate his affidavit of probable cause into the warrants or attach it, but instead kept it under seal, according to the judge.

"The warrant thus facially authorized government agents to rummage through a substantial volume of the defendant's work product and decide for themselves what to take."

Regarding the warrant for the laptop, the judge found that it was too broad and did not support what he called the "en masse" seizure of information and data it contained.

Judge McLaughlin was appointed to the case in October after the 3rd U.S. Circuit Court of Appeals said it would benefit from a fresh set of eyes.

In yesterday's opinion, the judge noted the intense public scrutiny given to the case, as well as what he called the "emotionally charged atmosphere," that led to the case taking on "a life of its own."

Judge McLaughlin, who is based in Erie, wrote that he recognizes that "suppression is a harsh remedy," and said that his decision was not undertaken lightly.

Instead, he concluded that his rulings were grounded on "well-established Fourth Amendment principles which serve as a bulwark against unwarranted governmental intrusion into the private affairs of every citizen, not just this defendant.

"The importance of these principles transcends this particular case."

Dr. Wecht was indicted in January 2006 on 84 counts in which the government claimed he used his public office for private gain. On the eve of trial nearly two years later, the government dismissed 43 of those counts.

The case was tried before U.S. District Judge Arthur J. Schwab over several weeks in early 2008 before ending with a hung jury in April of that year.

The government immediately announced it would retry Dr. Wecht, but then the case went to the 3rd Circuit Court on a number of appeals.

Late last summer, the appeals court sent the case back to the district court, but ordered that a new judge be appointed to hear it.

In January, Judge McLaughlin held an entire day of oral arguments, which he then followed with additional arguments in March. In the meantime, the government had further pared the case down to 14 counts, including mail and wire fraud, as well as theft from a program receiving federal funds.

While U.S. Attorney Mary Beth Buchanan will make a recommendation whether to appeal, the final say comes from the U.S. solicitor general.

"It's always the case, having nothing to do with the change in the administration, that a government appeal from an adverse decision has to be approved by the Solicitor General," said Harry Litman, former U.S. attorney in Pittsburgh.

The Obama administration asked months ago that all sitting U.S. attorneys remain in place, and Ms. Buchanan has done that. Sen. Robert P. Casey, D-Pa., earlier this week posted an application for potential U.S. attorney candidates on his Web site. Those applications are due June 5.

No matter what, it is extremely unlikely that a new U.S. attorney would be in place before time elapses for an appeal in this case to be filed.

Dick Thornburgh, a former U.S. attorney general who was part of Dr. Wecht's defense team, has said all along that the case never should have been prosecuted.

"It is reassuring to finally find a judge who recognized how flimsy these charges were," he said. "Perhaps Dr. Wecht and his family can now get on with their lives free of the unjustified cloud which has hung over them for far too long."

Dr. Wecht would not say how much money the case has cost him.

"It has wiped me out. If I remain active for 20 more years, there's no way I could begin to recoup what it has cost me financially," he said.

He also added that the public corruption charges carry a "stigma that no one wants." While he said that there is a lot that must be undone, he believes the community supports him.

For his part, Mr. McDevitt said that the case has also damaged the U.S. attorney's office.

"It's not a pretty picture when you stand back and look at the prosecution of Cyril Wecht," he said. "It is a black spot on this district and I hope this ends it."

Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620. Sadie Gurman can be reached at sgurman@post-gazette.com or 412-263-1878.

First published on May 15, 2009 at 12:00 am