Saturday, August 11, 2007

Prelim 2.0

As the date for Harlow Cuadra’s and Joe Kerekes’ preliminary hearing closed in once before (then got postponed), this post was designed to explain what was going to happen in court.

But your comments have shown that there are still questions about procedure and outcomes, so... here’s more info.

What the prosecution wants: for the case to proceed. The prelim takes place in front of a magistrate. He or she is a low-level judge; the kind of judge who literally fines people for spitting on the sidewalk. Magistrates don’t try felonies. What they do is act as gatekeepers to the Court of Common Pleas (that does adjudicate serious cases). The magistrate is there to decide whether or not the State has enough evidence to take the case higher in the system.

To take the case higher, the prosecution must satisfy the magistrate (Mr. Tupper, in this instance) that they have a prima facie case against Messers. Cuadra and Kerekes.

So what’s that mean? Well...“in other words, present evidence that a crime has been committed and that the defendant is probably the perpetrator of that crime.

What actually happens in court during a prelim? Harlow and Joe will be there with their lawyers. An Assistant District Attorney (ADA) will be there. The ADA will introduce the criminal complaint, and call a short list of witnesses to support the claims in the complaint, as well as whatever other essential evidence has been uncovered since the complaint was filed.

The witnesses will mostly be state troopers, somebody from the coroner’s office and perhaps an evidence technician or two.

Very occasionally, Harlow’s and/or Joe’s lawyers will object to the form of a question that’s put to a witness. The ADA will rephrase; they will continue. In all, it’s a pretty dull date; bring kettle corn.

What the defense wants: failing dismisssal, more info on the State's case, please. That's what’s important. The prelim is the first time anybody gets to see the thrust of the prosecution’s case. Understand, the prosecution doesn’t have to unveil every last bit of evidence it has—far from it—but we will almost certainly hear evidence presented at the prelim that has not been released thus far. The defense will object to some of that evidence, but the magistrate is likely to leave any suppression issue to the trial judge's discretion.
The defense will argue that the prima facie case has not been presented.

The hearing ends when both arguments are finished and the magistrate rules: either we’re one step closer to trial (meaning the prima facie case was demonstrated) or the State sends Harlow and Joe home with the apologies of the court. From what we’ve seen of the case so far, it’s pretty clear which way this one’s going to go.

So far, the prelim is set for 20 August. We'll keep you posted.