Ramesh Santanam, THE ASSOCIATED PRESS

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PITTSBURGH - A U.S. federal appeals court refused Friday to dismiss fraud and theft charges against celebrity pathologist Cyril Wecht and said he can be tried again - but ordered the judge replaced to help ease the "rancour in the courtroom."

The judge at Wecht's first trial did not follow proper procedure in declaring a mistrial after jurors said they couldn't unanimously agree on a verdict but that wasn't enough to dismiss the 41 counts against him, the appeals court ruled.

Wecht, 77, has earned millions investigating deaths, including those of JonBenet Ramsey, Elvis Presley and Vince Foster.

He was accused of using his former Allegheny County coroner's staff to benefit his private business and trading unclaimed county morgue cadavers for office and lab space at a university where he taught. Wecht was also charged with mail fraud for allegedly overbilling his private clients for bogus travel expenses.

His first trial lasted seven weeks and jurors deliberated for more than 50 hours before telling U.S. District Judge Arthur Schwab on April 8 they were "essentially deadlocked." Schwab then declared a mistrial.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia found "even though there was a manifest necessity to declare a mistrial...(Schwab) reached that conclusion through a highly flawed set of procedures."

Wecht's lawyers asked the court last month to dismiss the case on double jeopardy grounds. They argued Schwab made mistakes in not questioning jurors, not consulting with the lawyers and not considering other options. They also repeatedly have tried to paint Schwab as biased.

The appeals court judges likened Schwab to "a referee in a heavyweight fight...(who) has generally made the correct calls, with some exceptions."

They ruled Schwab should be replaced, not because of the errors or any perception of bias, but to try and ease the "combative tenor" of the case.

"Our view is that both sides and the interest of justice would benefit from a reduced level of rancour in the courtroom, fresh eyes on the case and fewer forays to this court by the parties," the judges wrote.

The appeals court said, although Wecht can be retried, their ruling "does not stand for the proposition that he must be retried."

U.S. Attorney Mary Beth Buchanan said she was pleased the 3rd Circuit said Wecht could be retried. She declined comment on the rest of the court's opinion.

Wecht's lawyer, Jerry McDevitt, said in a statement it is time for the government to cease prosecuting Wecht.

Considering the appeals court said Wecht doesn't have to be retried, "we hope the United States attorney's office dispassionately considers whether to do so," McDevitt said.