Wednesday, February 13, 2008

Co-Defendant’s Fair Trial Rights May be Hindered, Prosecution Says

Update @ 6:15 AM - The Citizen's Voice also covers the story, with much of the same news, with a few new bits of information: The prosecution’s motion outlines a scenario where the potential conflict could arise during the death penalty phase of the case. If both are convicted, “Kerekes and Cuadra may point the finger at one another as to who slit the victim’s throat,” prosecutors argue.

Kerekes, 34, would waive any potential conflict, Fannick said in a Jan. 29 article in The Citizens’ Voice. But in Tuesday’ motion, prosecutors said the court has an obligation to review the issue.

Kerekes’ alibi will be rebutted.

Also among the potential witnesses prosecutors have identified to rebut Kerekes’ alibi defense include local firefighters, police officers, as well as record holders for several phone and bank companies. Prosecutors also list several reporters for national and local media outlets, including The Boston Globe newspaper, MTV and Rolling Stone magazine.

In an update to yesterday's story, the Times Leader is reporting that Luzerne County prosecutors say attorney Demetrius Fannick should not be allowed to represent homicide suspect Harlow Cuadra.

Fannick should be disqualified from the case, the prosecutors say, because he had met with Cuadra’s co-defendant, Joseph Kerekes, eight times before becoming Cuadra’s attorney. Those meetings, the prosecutors say, create a conflict of interest that could hamper Kerekes’ right to a fair trial.

But Fannick said there is no conflict. And he thinks there’s an “ulterior motive” behind the prosecution’s request.

“I simply think they’re raising it because I kicked their ass in the last homicide case I did,” said Fannick, who successfully defended Hugo Selenski on two homicide charges in 2006. “I think the DA is just doing it out of spite.”

The exchange between the parties started Tuesday morning, when District Attorney Jackie Musto Carroll and a team of assistants filed court papers asking Court of Common Pleas Judge Peter Paul Olszewski Jr. to remove Fannick from the case.

Both have been represented by public attorneys outside the public defender’s office. But Fannick in November announced to the press he had met with Kerekes, discussed the case with him and might represent him, the prosecution’s court papers said.

Those court papers said Fannick met with Kerekes eight times between Oct. 26 and Jan. 11. Then, on Jan. 28, Fannick filed court papers indicating he would be representing Cuadra.

“Fannick’s office should not represent (Cuadra) because of the conflict of his having met and discussed the case with (Kerekes),” the prosecutors said.

But Fannick doesn’t think prosecutors should be sticking their noses into the issue. If a conflict truly existed, Kerekes and his defense team, not prosecutors, should be asking for Fannick’s removal. They have not made such a request.

“Quite frankly, I don’t see where the DA even has standing to raise it,” Fannick said. “I don’t think the DA should be arresting people and then decide who their lawyer is going to be.”

Fannick said he never discussed anything with Kerekes during the meetings that would create a conflict.

“No details about the offenses or possible defense were discussed during those meetings,” he said.

Fannick said Cuadra has a “right to hire a lawyer of his choosing.” If Fannick saw a conflict with defending Cuadra, he would not have gotten involved, he said.

Even if there was a conflict, Kerekes would waive it and clear the way for Fannick to stay on board, Fannick said.

But the prosecutors claim a judge “has an independent obligation … to ensure such waivers are valid.”

They also think the “unprecedented shuttling between co-defendants is a ploy in order to create a spurious reason and argument for severance.”

Fannick said the prosecutors should be “spending their time preparing their case rather than” worrying about who is going to represent the defendants. And the prosecution’s claim that they are merely trying to avoid any possible appeals issues is a farce, he said.

“That’s just a bunch of crap,” he said.

Also Tuesday, Fannick filed court papers asking for Cuadra to remain jailed at the Lackawanna County Prison. Cuadra’s past attorneys had asked Cuadra be transferred from there to the Luzerne County Correctional Facility.

But Fannick on Tuesday said he wants Cuadra to stay in Lackawanna because he is in the general population rather than isolated, has a job, and prison officials have been accommodating to him and Fannick.