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Wecht Trial Blog: Jury May Be Deadlocked
POSTED: 9:49 am EDT April 3,
2008
UPDATED: 5:53 pm EDT April 3,
2008
PITTSBURGH -- 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 33 - April 3, 2008: Jury Watch Day 9 8:15 AM I arrived early to check for the prosecution's response to the defense motion to undo removal of the juror by Judge Schwab. I could hear the sound of laughter from the jury room.Late yesterday afternoon, Wecht defense attorney Jerry McDevitt filed a motion that argued, among other things:- "The hasty removal of Juror No. 1 was, under the circumstances here, completely unwarranted on the existing record and extremely prejudicial to the defense."-"...the specter of a hung jury.... is a distinct possibility..."-"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."- "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..."Here's the prosecution's response, just filed electronically.8:30 AM As of now, no sign of a ruling by the judge, so it would appear that the Wecht jury may now be resuming deliberations. We have no indication either way.9:53 AM There's word that the jury has a new question. It will be read in open court at 10:15 AM. Dr. Wecht, the prosecution and the defense are expected in the courtroom in a matter of minutes.10:03 AM. Prosecutor Steve Stallings, who's office is in this building, has just arrived in the courtroom.10:15 AM Judge Schwab is on the bench. Wecht and his lawyers are here.The judge says we've received another inquiry from the jury. It says:"We found material documents of facsimile of False Expense Reimbursement Invoice dated May 20, 2004 but count 32 calls for faxes for April 20, 2004. Are there exhibits we may not have for April 20, 2004? (as charged in count #32) "10:18 AM The judge is giving the attorneys time to confer on what the response to the jury question should be.10:24 AM (Reporter note: You may recall that the last juror question raised the prospect that the jury might be deadlocked. This question suggests that they are currently examining the details of the evidence.)10:30 AM The prosecution asks if they can determine the day the evidence was offered, in order to answer the jury's question. The court staff is checking.10:33 AM The judge says they've found the date on which the document was entered into the record: February 21, 2008. He says the document is in evidence for that date. The court will have an index of evidence for that date printed out. The jury will have indexed notebooks containing the evidence. The judge says "since it's clear that document is in evidence, we can make it easy for the jury or we can make it hard for the jury". He suggests that rather than send the jurors searching through the notebooks, they provide a printout of the evidence. Defense attorney McDevitt suggests they simply answer the question by telling them that the answer to their question is "no"-- that is to say that they have the information.The judge says he can't see any other logical conclusion but that the jurors can't find the document among the thousands they have in evidence.10:39 AM The judge asks for a formal proffer from the prosecution and defense on what to write back to the jury. Stallings for the prosecution: "On Feb 21, 2008 exhibits were offered and entered on count 32 and are identified one page 83 of the index of exhibits." McDevitt for the defense: says they should only be told that they have all of the exhibits offered by the government in support of count 32.The judge asks for the prosecution to write out its proposed answer; he says he doesn't need for the defense to do so because he can "spell the word 'no'". McDevitt says he answer was not simply the word "no"; the judge acknowledges this and asks him to write out his proposed answer as well.10:45 AM The judge thanks both counsel for writing out their questions. He says he will give the jury the government's proposed response, indicating it is coming from the court, overruling the defense objection. He says it's clear from the text they are unable to find a document that is in the record. He notes there are about 10,000 pages of exhibits for the jurors, and it's understandable that they might not be able to find them, even with a chart of exhibits. He says that to simply tell them that they have all of the documents is incomplete. . The judge says the government's proposed answer will be recopied in his staff's handwriting and provided to the jury.The judge says he doesn't know if they'll reach a verdict today or not. He notes that on Thursdays he re-reads his instructions to them about not discussing the case. He suggests he can give it to them in writing. The prosecution agrees. The defense asks that he continue to verbally give the instructions in court as he has in the past. The judge says he will do so at 1:45 PM today.10:50 PM The court adjourns for now.11:13 AM The prosecution's filing this morning raises the question of whether reporters who were within earshot of the Wecht jury's periodic outbursts of laughter have inadvertently become federal criminals as a result of the experience.Wecht's defense attorney Jerry McDevitt's filing Wednesday questioned how stressful the deliberations actually are, given reports that sounds of juror laughter have often been heard. The sounds have carried through walls and closed doors; reporters have heard it not only in Judge Schwab's courtroom, but in the public hallway of the seventh floor of the courthouse.U.S. Attorney Mary Beth Buchanan and Assistant U.S. Attorney Steve Stallings raised the specter of "inappropriately obtained information" in their brief today:-"...We must assume... that defendant is referring to information about ongoing jury deliberations from a source who has overheard what is transpiring in the jury room."- "Title 18, United States Code, Section 1508(b) provides thatWhoever knowingly and willfully, by any means or device whatsoever -- listens to or observes, or attempts to listen to or observe, the proceedings of any grand or petit jury of which he is not a member in any court of the United States while such is deliberating or voting . . . [shall be guilty of a federal crime]."- "To be clear, the government is not accusing anyone of intentionally violating this statute, but merely pointing out that defendant bases his motion on information that is either irrelevant or inappropriate. "- "If defendant's source is a report from a member of the media who sits immediately outside the jury room during deliberations, the government respectfully suggests that the Court consider reevaluating the current seating arrangements."We reporters who have been covering the Wecht trial are not in Judge Schwab's empty courtroom today. His staff tells us that nothing is scheduled in that room today and so it will be locked. We were told that we may use the attorney conference rooms, which are just outside the courtroom. One effect of this change is that we cannot see the judge's staff enter or exit the jury room by way of the courtroom. We would be able to observe if they enter by way of the public hallway.11:20 AM Here's the exact text provided by the judge in answer to the jury's question:"On February 21, 2008, exhibits were offered and admitted in connection with count 32. These are exhibits are identified on p. 83 of the index of exhibits."I notice that the footnotes contained in the government's filing were garbled in with the text I provided earlier in today's post. Watch for a reposting shortly that fixes that problem.11:37 AM Several minutes ago, the jury's lunch arrived. As the bailiff was leaving the jury room, I noticed that she had a sheet of paper in her hand. We don't know if it's a question or message from the jury or whether the paper is unrelated to the case.1:43 PM All parties have gathered in the courtroom, waiting for the judge and jury to enter. The judge is expected to give his usual instructions to the jury not to discuss the case with anyone and to avoid news coverage of the case.1:46 PM Judge Schwab has taken his seat. The jury is not yet in the room. The panel is about to conclude its ninthJudge: we are gathered back in open court. This is the time we were going to read the caution to the jury, but in the interim we've gotten a questionJury message: after consideration of all counts.... we have unanimously agreed that we've reached an impasse. We agree that additional deliberations would not be helpful.Judge says he will bring them out and ask them whether they are hopelessly deadlocked. If so, he'll give them standard instructions for deadlocked juries. Attorneys from both sides have asked time to confer privately before they proceed further.1:50 PM We are in a brief recess.1:57 PM Attorneys for both sides have returned. Wecht has just re-entered, accompanied by Dick Thornburgh.Stallings: The government is not convinced that the jury understands that a partial verdict is a possibility. He suggests a note asking if they have reached a unanimous verdict on any of the counts. If not, he suggests they should be read instructions then sent back to deliberate. He does not want individual polling of jurors at this time. Stallings think they should continue to deliberate tomorrow and next week.McDevitt: The jury says "after considering all counts... we have unanimously agreed that we have reached an impasse." Says there is not any ambiguity in that at all. He wants a polling of the individual jurors now. He suggests if they confirm they're unanimously at an impasse, the jury should be discharged and a mistrial declared. He says that should happen today.Pause.2:02 The judge says he's going to bring the jury in and ask them questions individually and then give them the deadlocked jury charge instructions and send them back to deliberate. Judge says he'll send them right back in to resume deliberations.McDevitt suggests the jurors be given some time reference. Judge says they've shown themselves to be mature and he's confident they can work through this without setting artificial deadlines. Says they'll return to deliberate until they don't want to deliberate any more today.McDevitt says he feels he's asking fair questions. Judge says he's not going to give them a specific time. He instructs to bring out the jurors.2:07 PM Judge tells jury he's impressed by how diligent they've been. Says obviously at an important time in the trial. Reads their question back to them.Jurors asked by number: Do you agree that you're hopelessly deadlocked? Do you agree that further deliberations would not lead to a unanimous verdict?Juror # 2 Yes. Yes.
Juror # 3 Yes. Yes.
Juror # 4. Yes. Yes.
Juror # 5. Yes. Yes.
Juror # 6: Yes. Yes.
Juror # 7: Yes. Yes.
Juror # 8: Yes. Yes.
Juror # 9: Yes. Yes.
Juror # 10 : Yes. Yes.
Juror # 11: Yes. Yes.
Juror # 12: Yes. Yes.
(NOTE: Juror # 1 was excused for a medical condition yesterday and is no longer a part of the jury.)Judge is asking them to return to the jury room and deliberate further. Says the difficulty they're facing is not unusual.Says it's past 2 p.m., but they'll wait here for them. If they wish to they can also return later on another day to deliberate as well.2:13 PM Jury exits. Prosecution repeats its request that the jurors be informed that they can return a partial verdict. Judge denies the request.2:15 PM The judge has the courtroom cleared.Jury Question was:
"After considering all counts in a variety of ways and in reconsideration of all individual opinions according to the court's instructions , we have unanimously agree(d) we have reached an impasse and respectfully request direction from the court. We agree additional deliberation would not be helpful."Judge's response: "Members of the jury, I am going to ask you to return to the jury room and deliberate further. I realize that you are having some difficulty reaching a unanimous agreement, but that is not unusual. And often after further discussion, jurors are able to work out their differences and agree.""It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.""What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry. With that instruction I will return you to the jury room. Thank you."2:27 PM We are call called back into the courtroom. It's 14 minutes since the jury was sent back to deliberate again.2:34 Jurors and judge re-enter. Judge says jury wishes to recess for the day and return on Monday. Many have already made plans for Friday and he will not interfere. Judge says he thinks a long weekend will be good for everyone. He will grant their request. He repeats his instructions not to discuss the case or follow media coverage of the trial.2:38 PM The jurors leave the courtroom. They'll be back on Monday.5:29 PM. Prosecutors were twice refused when they orally asked Judge Schwab to instruct jurors they can return a partial verdict; now they're asking him a third time, this time in writing.The written motion was filed late this afternoon. The government is asking that the judge give these instructions before deliberations resume on Monday. Wecht's attorneys are likely to file their written response tomorrow.
Wecht Trial Day 33 - April 3, 2008: Jury Watch Day 9 8:15 AM I arrived early to check for the prosecution's response to the defense motion to undo removal of the juror by Judge Schwab. I could hear the sound of laughter from the jury room.Late yesterday afternoon, Wecht defense attorney Jerry McDevitt filed a motion that argued, among other things:- "The hasty removal of Juror No. 1 was, under the circumstances here, completely unwarranted on the existing record and extremely prejudicial to the defense."-"...the specter of a hung jury.... is a distinct possibility..."-"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."- "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..."Here's the prosecution's response, just filed electronically.8:30 AM As of now, no sign of a ruling by the judge, so it would appear that the Wecht jury may now be resuming deliberations. We have no indication either way.9:53 AM There's word that the jury has a new question. It will be read in open court at 10:15 AM. Dr. Wecht, the prosecution and the defense are expected in the courtroom in a matter of minutes.10:03 AM. Prosecutor Steve Stallings, who's office is in this building, has just arrived in the courtroom.10:15 AM Judge Schwab is on the bench. Wecht and his lawyers are here.The judge says we've received another inquiry from the jury. It says:"We found material documents of facsimile of False Expense Reimbursement Invoice dated May 20, 2004 but count 32 calls for faxes for April 20, 2004. Are there exhibits we may not have for April 20, 2004? (as charged in count #32) "10:18 AM The judge is giving the attorneys time to confer on what the response to the jury question should be.10:24 AM (Reporter note: You may recall that the last juror question raised the prospect that the jury might be deadlocked. This question suggests that they are currently examining the details of the evidence.)10:30 AM The prosecution asks if they can determine the day the evidence was offered, in order to answer the jury's question. The court staff is checking.10:33 AM The judge says they've found the date on which the document was entered into the record: February 21, 2008. He says the document is in evidence for that date. The court will have an index of evidence for that date printed out. The jury will have indexed notebooks containing the evidence. The judge says "since it's clear that document is in evidence, we can make it easy for the jury or we can make it hard for the jury". He suggests that rather than send the jurors searching through the notebooks, they provide a printout of the evidence. Defense attorney McDevitt suggests they simply answer the question by telling them that the answer to their question is "no"-- that is to say that they have the information.The judge says he can't see any other logical conclusion but that the jurors can't find the document among the thousands they have in evidence.10:39 AM The judge asks for a formal proffer from the prosecution and defense on what to write back to the jury. Stallings for the prosecution: "On Feb 21, 2008 exhibits were offered and entered on count 32 and are identified one page 83 of the index of exhibits." McDevitt for the defense: says they should only be told that they have all of the exhibits offered by the government in support of count 32.The judge asks for the prosecution to write out its proposed answer; he says he doesn't need for the defense to do so because he can "spell the word 'no'". McDevitt says he answer was not simply the word "no"; the judge acknowledges this and asks him to write out his proposed answer as well.10:45 AM The judge thanks both counsel for writing out their questions. He says he will give the jury the government's proposed response, indicating it is coming from the court, overruling the defense objection. He says it's clear from the text they are unable to find a document that is in the record. He notes there are about 10,000 pages of exhibits for the jurors, and it's understandable that they might not be able to find them, even with a chart of exhibits. He says that to simply tell them that they have all of the documents is incomplete. . The judge says the government's proposed answer will be recopied in his staff's handwriting and provided to the jury.The judge says he doesn't know if they'll reach a verdict today or not. He notes that on Thursdays he re-reads his instructions to them about not discussing the case. He suggests he can give it to them in writing. The prosecution agrees. The defense asks that he continue to verbally give the instructions in court as he has in the past. The judge says he will do so at 1:45 PM today.10:50 PM The court adjourns for now.11:13 AM The prosecution's filing this morning raises the question of whether reporters who were within earshot of the Wecht jury's periodic outbursts of laughter have inadvertently become federal criminals as a result of the experience.Wecht's defense attorney Jerry McDevitt's filing Wednesday questioned how stressful the deliberations actually are, given reports that sounds of juror laughter have often been heard. The sounds have carried through walls and closed doors; reporters have heard it not only in Judge Schwab's courtroom, but in the public hallway of the seventh floor of the courthouse.U.S. Attorney Mary Beth Buchanan and Assistant U.S. Attorney Steve Stallings raised the specter of "inappropriately obtained information" in their brief today:-"...We must assume... that defendant is referring to information about ongoing jury deliberations from a source who has overheard what is transpiring in the jury room."- "Title 18, United States Code, Section 1508(b) provides thatWhoever knowingly and willfully, by any means or device whatsoever -- listens to or observes, or attempts to listen to or observe, the proceedings of any grand or petit jury of which he is not a member in any court of the United States while such is deliberating or voting . . . [shall be guilty of a federal crime]."- "To be clear, the government is not accusing anyone of intentionally violating this statute, but merely pointing out that defendant bases his motion on information that is either irrelevant or inappropriate. "- "If defendant's source is a report from a member of the media who sits immediately outside the jury room during deliberations, the government respectfully suggests that the Court consider reevaluating the current seating arrangements."We reporters who have been covering the Wecht trial are not in Judge Schwab's empty courtroom today. His staff tells us that nothing is scheduled in that room today and so it will be locked. We were told that we may use the attorney conference rooms, which are just outside the courtroom. One effect of this change is that we cannot see the judge's staff enter or exit the jury room by way of the courtroom. We would be able to observe if they enter by way of the public hallway.11:20 AM Here's the exact text provided by the judge in answer to the jury's question:"On February 21, 2008, exhibits were offered and admitted in connection with count 32. These are exhibits are identified on p. 83 of the index of exhibits."I notice that the footnotes contained in the government's filing were garbled in with the text I provided earlier in today's post. Watch for a reposting shortly that fixes that problem.11:37 AM Several minutes ago, the jury's lunch arrived. As the bailiff was leaving the jury room, I noticed that she had a sheet of paper in her hand. We don't know if it's a question or message from the jury or whether the paper is unrelated to the case.1:43 PM All parties have gathered in the courtroom, waiting for the judge and jury to enter. The judge is expected to give his usual instructions to the jury not to discuss the case with anyone and to avoid news coverage of the case.1:46 PM Judge Schwab has taken his seat. The jury is not yet in the room. The panel is about to conclude its ninthJudge: we are gathered back in open court. This is the time we were going to read the caution to the jury, but in the interim we've gotten a questionJury message: after consideration of all counts.... we have unanimously agreed that we've reached an impasse. We agree that additional deliberations would not be helpful.Judge says he will bring them out and ask them whether they are hopelessly deadlocked. If so, he'll give them standard instructions for deadlocked juries. Attorneys from both sides have asked time to confer privately before they proceed further.1:50 PM We are in a brief recess.1:57 PM Attorneys for both sides have returned. Wecht has just re-entered, accompanied by Dick Thornburgh.Stallings: The government is not convinced that the jury understands that a partial verdict is a possibility. He suggests a note asking if they have reached a unanimous verdict on any of the counts. If not, he suggests they should be read instructions then sent back to deliberate. He does not want individual polling of jurors at this time. Stallings think they should continue to deliberate tomorrow and next week.McDevitt: The jury says "after considering all counts... we have unanimously agreed that we have reached an impasse." Says there is not any ambiguity in that at all. He wants a polling of the individual jurors now. He suggests if they confirm they're unanimously at an impasse, the jury should be discharged and a mistrial declared. He says that should happen today.Pause.2:02 The judge says he's going to bring the jury in and ask them questions individually and then give them the deadlocked jury charge instructions and send them back to deliberate. Judge says he'll send them right back in to resume deliberations.McDevitt suggests the jurors be given some time reference. Judge says they've shown themselves to be mature and he's confident they can work through this without setting artificial deadlines. Says they'll return to deliberate until they don't want to deliberate any more today.McDevitt says he feels he's asking fair questions. Judge says he's not going to give them a specific time. He instructs to bring out the jurors.2:07 PM Judge tells jury he's impressed by how diligent they've been. Says obviously at an important time in the trial. Reads their question back to them.Jurors asked by number: Do you agree that you're hopelessly deadlocked? Do you agree that further deliberations would not lead to a unanimous verdict?Juror # 2 Yes. Yes.
Juror # 3 Yes. Yes.
Juror # 4. Yes. Yes.
Juror # 5. Yes. Yes.
Juror # 6: Yes. Yes.
Juror # 7: Yes. Yes.
Juror # 8: Yes. Yes.
Juror # 9: Yes. Yes.
Juror # 10 : Yes. Yes.
Juror # 11: Yes. Yes.
Juror # 12: Yes. Yes.
(NOTE: Juror # 1 was excused for a medical condition yesterday and is no longer a part of the jury.)Judge is asking them to return to the jury room and deliberate further. Says the difficulty they're facing is not unusual.Says it's past 2 p.m., but they'll wait here for them. If they wish to they can also return later on another day to deliberate as well.2:13 PM Jury exits. Prosecution repeats its request that the jurors be informed that they can return a partial verdict. Judge denies the request.2:15 PM The judge has the courtroom cleared.Jury Question was:
"After considering all counts in a variety of ways and in reconsideration of all individual opinions according to the court's instructions , we have unanimously agree(d) we have reached an impasse and respectfully request direction from the court. We agree additional deliberation would not be helpful."Judge's response: "Members of the jury, I am going to ask you to return to the jury room and deliberate further. I realize that you are having some difficulty reaching a unanimous agreement, but that is not unusual. And often after further discussion, jurors are able to work out their differences and agree.""It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.""What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry. With that instruction I will return you to the jury room. Thank you."2:27 PM We are call called back into the courtroom. It's 14 minutes since the jury was sent back to deliberate again.2:34 Jurors and judge re-enter. Judge says jury wishes to recess for the day and return on Monday. Many have already made plans for Friday and he will not interfere. Judge says he thinks a long weekend will be good for everyone. He will grant their request. He repeats his instructions not to discuss the case or follow media coverage of the trial.2:38 PM The jurors leave the courtroom. They'll be back on Monday.5:29 PM. Prosecutors were twice refused when they orally asked Judge Schwab to instruct jurors they can return a partial verdict; now they're asking him a third time, this time in writing.The written motion was filed late this afternoon. The government is asking that the judge give these instructions before deliberations resume on Monday. Wecht's attorneys are likely to file their written response tomorrow.
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