3rd Circuit lets sunshine in on famous coroner’s trial

Monday, January 28, 2008

Whatever the weather outside the federal courthouse in Pittsburgh this week,
the 3rd U.S. Circuit Court of Appeals recently ensured there would be sunshine
in the courtroom holding the criminal trial of celebrated forensic pathologist
Cyril Wecht.

Over the objection of Wecht and local news media, U.S. district judge Arthur
Schwab had ruled jurors’ names would not be released to the public until after
the trial. The court of appeals, however, overturned that ruling and ordered
Schwab to release those names — as well as the names of the prospective jurors
who were not selected — before starting the trial.

So as not to delay the case, the 3rd Circuit issued its ruling on Jan. 9
without a supporting opinion. That opinion, the appeals court said, will “follow
in due course.” Jury selection then began on Jan. 10 and concluded Jan. 23, with
the trial starting today.

Though the 3rd Circuit has not yet issued its opinion, it appears clear the
court rejected Schwab’s view that “intense, unprecedented, and relentless media
attention” justified the empaneling of an anonymous jury. Instead, as it had
done earlier in the case, the appeals court appears to have recognized that the
public’s right to attend trials and view judicial records trumps any
individual’s preference for secrecy.

Wecht was indicted in early 2006 for allegedly using his position as
Allegheny County, Pa., coroner for private financial gain. According to the
indictment, Wecht billed private clients improperly, falsified transportation
records, used county employees in his private practice and traded cadavers for
laboratory space at a local college.

Wecht, 76, became nationally known for his forensic work on the John F.
Kennedy assassination. A frequent guest on national news programs, he since has
studied and commented upon the death of Elvis Presley, the O.J. Simpson case and
the JonBenet Ramsey investigation. Most recently, Wecht was hired by Anna Nicole
Smith to investigate the death of her son, Daniel.

After the indictment was issued, Wecht claimed it was politically motivated,
pointing to his public feud with Allegheny County District Attorney Stephen
Zappala over Zappala’s alleged failure to investigate police-officer shootings
that Wecht had ruled homicides. The investigation of Wecht was led by FBI
special agent Bradley Orsini, who Wecht claims falsified search warrant
affidavits in the case.

Early in the case, prosecutors and Wecht’s lawyers clashed over a number of
issues, including statements Wecht’s lawyers had made to the news media and
Wecht’s right to inspect Orsini’s personnel file. Because these issues affected
the press’s ability to cover the case, Schwab allowed the Pittsburgh
the Pittsburgh Tribune-Review and television stations WPXI and
WTAE to intervene. After several hearings, Schwab held that a local trial-court
rule could constitutionally limit the lawyers’ speech and that Orsini’s records
could be released to the public.

Wecht and the news media companies appealed the first ruling, and the
government appealed the second. On appeal, the 3rd Circuit, following the U.S.
Supreme Court’s 1991 ruling in Gentile v. State Bar of Nevada, held on April 12, 2007, that the local rule is
constitutional only if it is narrowly interpreted to prohibit statements
“substantially likely to materially prejudice” the proceedings. The court then
affirmed Schwab’s ruling on Orsini’s records, saying such openness promoted
public confidence in the judicial system, diminished possibilities for injustice
and fraud and helped the public better understand the judicial process.

The commitment to openness shown in its April ruling undoubtedly drove the
3rd Circuit’s later decision requiring Schwab to release the names of jurors and
prospective jurors. While recognizing that trial judges are entitled to
significant deference in most procedural matters and cognizant of Schwab’s
concerns that releasing the jurors’ names could result in stories being
published about the jurors and their families, the appeals court still chose
openness over secrecy. Although the court’s reasoning will not be fully known
until its opinion is issued, it seems clear the court concluded that potential –
or even likely – news coverage of jurors is not enough to justify anonymous

Perhaps even more significantly, the court’s commitment to openness in this
case could help stem the tide of anonymous juries in other cases. Once used only
in organized-crime trials when necessary to protect jurors from intimidation or
retaliation, anonymous juries now are much more common, as judges seek to
protect jurors not from the mob but from the media. A forceful reminder from the
3rd Circuit that openness is more important than juror comfort and convenience
would be a useful tool in this ongoing struggle.

If the Wecht case takes the expected 10 weeks to conclude, the jurors likely
will spend several days behind closed doors deliberating their verdict. Thanks
to the court of appeals’ ruling, those deliberations will be the only part of
the case conducted in secret.