The Third Circuit Court of Appeals has refused to dismiss charges against Dr. Cyril H. Wecht but it also ordered that a new judge must be assigned if prosecutors proceed with a retrial.

Dr. Wecht had sought to have his case dismissed on double jeopardy grounds, and the appeals court said that although U.S. District Judge Arthur J. Schwab did not follow proper procedure in declaring a mistrial April 8, that was not enough to require that the 41 felony counts be dismissed.

In its ruling the court said, "we will direct that Judge Schwab be relieved of further duties on this case and that the chief judge of the District Court assign a new judge to handle any future matters in the case including any retrial."

U.S. Attorney Mary Beth Buchanan issued a statement saying: "The government is pleased that the Court of Appeals accepted our position and reached the conclusion that the double jeopardy clause does not preclude a retrial in this case. We have no comment at this time with respect to the remainder of the court's opinion."

Judge Schwab was out of town and not available for comment.

Dr. Wecht is charged with using his previous public position as Allegheny County coroner for private gain.

Dr. Wecht's first trial ended with a hung jury after 10 days of deliberations following seven weeks of testimony. Jerry McDevitt, one of Dr. Wecht's defense lawyers, filed a motion first in U.S. District Court in April, arguing that his client could not be retried based on double jeopardy, the legal concept that a person cannot be tried twice on the same charges.

Among the failures Mr. McDevitt cited were the judge's decision not to poll jurors individually to ensure they were, in fact, deadlocked; not asking the attorneys if they consented to a mistrial; not showing the attorneys the final note from the jurors that said they were "essentially" deadlocked; and not questioning the jury foreman.

On May 2, Judge Schwab issued an opinion denying the request. Dr. Wecht appealed to the Third Circuit.