Wecht Trial Blog: Juror Excused, Ordered Not To Talk

POSTED: 10:20 am EDT April 2, 2008
UPDATED: 9:54 am EDT April 3, 2008

Channel 4 Action News reporter Bob Mayo is covering the trial of Dr. Cyril Wecht at the federal courthouse in downtown Pittsburgh. He will be posting blogs as often as possible from court. These are the raw notes that were sent on his mobile device.

Wecht Trial Day 32 - April 2, 2008: Jury Watch Day 8

8:30 AM Prosecution and defense attorneys are in the courtroom. They tell me they were told by the judge to be here at 8:30 AM, but they weren't told why.

8:34 AM Defendant Dr. Cyril Wecht has just arrived, as has former U.S. Attorney General Dick Thornburgh, who is a member of the defense team.

8:35 AM The judge is on the bench. We're awaiting the arrival of the court reporter. Assistant U.S. Attorneys Steve Stallings and Jim Wilson are joined by FBI Agent Brad Orsini. Defense attorneys Jerry McDevitt and Mark Rush are seated with Dr. Wecht.

8:38 AM The judge says we're back on the record. The judge notes that yesterday around 1:30 the court staff received indication that one of the jurors was having a medical condition. The nurse in the courthouse was brought to the jury deliberation room to evaluate the situation. The nurse recommended that the juror from seat number one should immediately proceed to the hospital. The juror was transported with court staff and had tests in the afternoon into the evening . A series of tests are scheduled for this morning. the juror has requested to be excused, and is concerned that the continued stress of deliberations would be unwise in view of his medical condition. The juror has conveyed to the bailiff and that analysis is consistent with the doctor's recommendation. The judge says they're trying to get written documentation, but the juror has clearly conveyed that he has requested to be excused in light of his medical condition. The judge says that in light of privacy, the juror's exact medical condition is his business, not ours. Judge Schwab asks the attorneys to discuss continuing with a jury of eleven persons. The judge says that given the length he says the recommended procedure is to go with eleven jurors, rather than go with an alternate who has not been a part of the lengthy deliberations to date. Judge Schwab says he'll give the attorneys five minutes to discuss. The remaining jurors cannot deliberate until this is resolved. We are now in recess.

8:52 AM The attorneys have come back into the courtroom and the judge is on the bench.

8:53 AM What is the government's position? Stallings: We agree with the court's proposal to let the eleven remaining jurors deliberate. He says both the juror and his physician say that continued deliberations would endanger his good health. Stallings says case law shows that this is the preferred solution. McDevitt asks if the juror is the foreman. Stallings says asking that information would intrude on the deliberations. McDevitt says that it is a material fact that needs to be taken into account. Judge says he has received questions in the past from the jury and the signed notes indicate that the juror is not the foreman or bailiff.

McDevitt says that given the uncertainty, he can understand the stress for everyone involved, but he says we won't know until after the medical tests are concluded today if the juror's position will remain the same. He says then there will be a more meaningful medical evaluation. McDevitt notes that if this juror is allowed to go, we will be precariously close to a mistrial; that if we lose another juror there would be no provision to replace that person and there would be a mistrial. McDevitt suggests we wait a day for the doctor's medical advice.

Judge says that "the court rules there is good cause to excuse the juror"; the juror has a serious medical condition, not just a cold or flu. Says the juror has conveyed he wants to be relieved of the stress of the trial and that it would be unfair to keep him under the possibility of having to return. That it would be unwise and unkind to him. Judge says he'll tell bailiff to tell the jury to continue deliberating as eleven persons, citing applicable law and court rules. The jurors will also be told that if they want to deliberate on any day longer than their current 2 o'clock stop time, the court will accommodate them. He will also make it possible for them to deliberate on Fridays if they wish. Will convey thanks to juror number one and prayers for his improved condition. They've now recess.

9:05 AM As the judge's clerk and bailiff leave the jury deliberation room, I once again hear the brief sound of laughter.

9:21 AM Some additional notes on what was said in court:
-Judge Schwab noted that they had been aware over the course of the trial of juror number one's medical conditions.
-Defense attorney Jerry McDevitt's phrase was "precariously teetering" close to a mistrial.

The Wecht defense team initially refused comment when they left the courthouse, but when pressed McDevitt did speak briefly on camera. He explained that if they lose another juror for any reason, there is no provision to go with a panel of ten. He notes that if they lose another juror and bring in an alternate, the panel would have to restart their entire deliberations.

11:41 AM The following court order has just been distributed to reporters covering the trial:

"ORDER as to CYRIL H. WECHT. The court has been informed that attempts by the media have been made to contact the excused juror for comments concerning the pending proceedings, and that the inquirer was advised by the juror that he had been instructed by the court staff not to discuss the case while the verdict was pending. In light of these attempts to contact the juror, IT IS HEREBY ORDERED that said juror shall not discuss the case with anyone other than his doctor or medical reasons until further notice by the Court, and shall advise the Court staff or the United States Marshal Service if any further contacts are initiated. IT IS FURTHER ORDERED that no person shall attempt to contact any juror (including alternates) prior to the verdict being published in this case in open Court. The Court notes that earlier today, counsel for the parties advised the Court that no party or party representative would contact or seek to contact the excused juror. Signed by Judge Arthur J. Schwab on 4/02/08. Text-only entry, no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter."

I'll blog more on this later.

1:17 PM The Wecht trial jury has been deliberating since 9:30 this morning; we're approaching the end of the 42nd hour of deliberations on Day Eight of the jury watch.

I can fill you in now about some developments outside the courtroom from earlier. This will provide some context for the judge's 11:31 AM court order that I posted online at 11:41 AM.

At 10:45 AM I spoke by phone with the former juror No.1 , who was excused from the jury by Judge Schwab this morning. I asked him if – when he feels up to it -- he'd be willing to discuss his experience of serving on the jury. He told me, "I may not speak with you, Bob Mayo."

When I started to ask if that meant that he felt he was restricted from speaking with me, he answered, "Speak with the judge, Bob Mayo."

I immediately contacted the judge's clerk to seek a clarification. In our brief chat, I approached the former juror respectfully, making it clear that we wished to speak to him only when he felt up to the task. Judge Schwab had given no indication in the courtroom that he'd placed any restriction on the ex-juror speaking with anyone about the case.

2 PM. The 11 remaining jurors have gone home for the day without reaching a verdict. They'll be back tomorrow morning to resume their work.

2:15 PM Shortly after the jury was sent home for the day, I learned that Wecht's defense team filed an objection and emergency motion asking Judge Schwab to reverse his dismissal of juror number one.

3:15 PM The text of the brief in support of the motion appears below.

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ) Criminal No. 06-26
)
Plaintiff, )
) Honorable Arthur J. Schwab
v. )
)
CYRIL H. WECHT, )
) ELECTRONICALLY FILED
Defendant. )
DEFENDANTS BRIEF IN SUPPORT OF OBJECTION AND EMERGENCY MOTION TO VACATE ORDER DISMISSING JUROR NO. 1

The hasty manner in which the Court discharged Juror No. 1 and the record
made in
support of doing so do not comport with Fed.R.Crim.P. 23(b). Removal of a
juror and
proceeding with eleven jurors over defense objections is an unusual step
requiring compelling
equities to do so. United States v. Araujo, 62 F.3d 930 (7th Cir. 1995).
The defense was given
no advance notice the Court was even considering removing the juror,
fundamentally no time to
conduct legal research on the issue, and only five minutes even to discuss
the situation after
receiving the Court s hearsay rendition of events and statements attributed
to Juror No. 1 this
morning.
The Court made no attempt to learn the precise circumstances of the likely
duration of the
jurors absence and did not wait for the conclusion of medical testing
taking place this morning.
Likewise, there was no information from the physician regarding the
condition of Juror No. 1 or
the impact of Juror No. 1s condition on his ability to continue in
deliberations. This was error,
as the Court must attempt to learn the precise circumstances or likely
duration of the twelfth jurors absence.
See United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994); United States v. Araujo, 62 F.3d 930 (7th Cir. 1995).
The hasty removal of Juror No. 1 was, under the circumstances here, completely unwarranted on the existing record and extremely prejudicial to the defense. Based on the Court's comments, it appears that the alleged statement attributed to Juror No. 1 about the stress of deliberations and the impact on his medical condition (which is not known) was the principal reason for the discharge of Juror No. 1. That stress, to the extent it exists, is in one sense felt by all jurors on a divided jury and may well be caused by several factors, including inadequacy of the jury instructions; the lack of knowledge on the jurys part as to what they are to do if in fact a hung jury, or any number of factors, some of which may be eliminated in the near future. Moreover, all reports are that the jury is getting along well despite the stress of deliberations, including countless reports of laughter coming from the jury room, both before the situation yesterday with Juror No. 1, after being attended to medically, and even today after his removal. The jury has been deliberating several days; the specter of a hung jury on some or all of the counts is a distinct possibility; and the removal of Juror No. 1 may well serve to remove from the jury a juror who was not voting to convict Dr. Wecht on any charges. Indeed, the Government could hardly wait to have him removed, in sharp distinction to the way a prior juror illness was handled by the Court, where the juror was given a full day to return. Accordingly, the defense respectfully requests the Court immediately vacate the order dismissing Juror No. 1; cease jury deliberations; and take steps to obtain verifiable information on Juror No. 1s precise medical condition and likely duration of his absence.

Respectfully submitted,
S/ Jerry S. McDevitt