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

By Douglas Lee
Special to the First Amendment Center Online
01.28.08

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 Post-Gazette, 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 juries.

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.


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