Last updated: September 30. 2013 11:51PM - 2574 Views
By - smocarsky@civitasmedia.com

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Read the order denying Musto’s appeal at timesleader.com.

A panel of federal judges on Monday dismissed former state Sen. Raphael Musto’s appeal of a lower court’s order denying his request to indefinitely postpone his corruption trial because of his health issues.

Circuit Judges Michael A. Chagares, Thomas I. Vanaskie and Patty Shwartz issued an opinion written by Schwartz that stated the U.S. Court of Appeals for the Third Circuit had “no appellate jurisdiction” to consider Musto’s appeal based on the constitutional issues Musto’s attorneys raised.

Musto was indicted in November 2010 on charges he abused his position as state senator by accepting money and gifts from a local real estate developer, identified by Musto’s attorneys as Robert Mericle.

A judge had set Musto’s trial date for November 2012 after Dr. Rajender Reddy, a medical expert hired by the court, issued a report stating Musto was healthy enough to stand trial.

But in their motion, Musto’s attorneys argued Reddy only reviewed Musto’s medical records and never personally examined him, even though the attorneys agreed to a physical examination.

In contrast, Dr. Cataldo Doria, a physician hired by Musto, and Dr. Ian Schreibman, a physician hired by the U.S. Attorney’s Office, each examined Musto and concluded he was too ill to stand trial, the attorneys said.

In his report, Schreibman confirmed Musto “is unable to read any more than two paragraphs without getting distracted.” He also noted Musto has “good” and “bad” days, and that if he is taxed by trial preparation on his good days, he “will become tired and unable to adequately partake in his defense.”

U.S. District Judge Robert Mariani denied the motion for indefinite continuance and Musto’s attorneys filed an appeal of that ruling to the Circuit Court.

Musto’s attorneys grounded his motion for an appeal in two constitutional claims:

• That a trial would violate Musto’s Sixth Amendment rights because he would be physically impaired from assisting his attorneys; and

• That compelling him to endure the stress of a criminal trial would present life-threatening complications that constitute cruel and unusual punishment in violation of the Eighth Amendment.

Schwartz wrote in her opinion that the Circuit Court has jurisdiction only of appeals from final decisions of U.S. District Courts, except for a small class of rulings that meet certain conditions, including the condition that the matter raised on appeal couldn’t effectively be appealed after a District Court reached a final decision in the case.

Schwartz wrote that the Sixth Amendment claim could be raised on an appeal if he were ultimately found guilty in District Court. She also noted the District Court “is free, and evidently willing, to reassess Musto’s medical needs as trial approaches and progresses.”

And while Musto raised the Eighth Amendment claim before the District Court, he withdrew the claim on appeal, Schwartz wrote, so the appeals judges did not consider that argument.

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