Wednesday, July 25, 2007

What Happens on Friday*

*Update (17:21 EDT): Media people in Wilkes-Barre expect the preliminary hearing scheduled for Friday to be continued to a later date yet to be decided.

In a couple of days, on 27 July, Harlow Cuadra and Joe Kerekes are scheduled to be in court for their preliminary hearing. There, the prosecution will seek to verify that there is sufficient probable cause to take the case to trial and (an ancillary point in this case) that the court has jurisdiction over said case.

The local magistrate presides over the prelim, not the eventual trial judge. Some witnesses will likely be called-- usually it's policemen-- and they will surely be cross-examined by the defense.

As such, this will be the first peek into what police have come up with since filing the criminal complaint and affidavit of probable cause last May. It also will very probably be one of the few times (before trial) that the defense will get to ask direct questions of the police: other communications about the cops' investigative activities coming thereafter indirectly through discovery, or through limited testimony at subsequent evidentiary hearings.

While the prelim looks and sounds a bit like a 'mini-trial,' there is no clear winning or losing other than the court's decision on whether to allow the prosecution to proceed... and that happens just about every time in cases like this one.

Mr. Cuadra and Mr. Kerekes will not testify on Friday.

The hearing will not judge guilt or its lack. It just declares 'yea' or 'nay' on continuation of the process.

Now, sometimes defendants waive the preliminary hearing. Cuadra and Kerekes are unlikely to do that, but it happens. Among other reasons, it happens when defendants are trying to curry favor with the magistrate in hopes of a reduction in bail (obviously not applicable here), or in an oblique attempt to cooperate with the prosecution in the early stages of plea negotiations.

In this case, we can be fairly certain that prosecutors have already made their first approaches, fishing for pleas. It's definitely not unheard-of for a defendant to demonstrate a desire to seek to keep that channel open by waiving the prelim, choosing to depend on discovery hearings and assorted pre-trial hearings to flesh out the prosecution's case.

But the complexities of overall trial strategy are for another post.