A routine occurrence that has to be done in all Death Penalty Cases is that Harlow Cuadra and Joseph Kerekes will both have to undergo a psychiatric evaluation... from the Defendant's side and the Prosecution's. The following text is from a motion filed by the Prosecution on November 6, 2007:
INDEPENDENT PSYCHIATRIC EVALUATION:
The Commonwealth believes that the defendants may present expert psychiatric testimony during the penalty phase of the instant trial. As such, the Commonwealth filed a Motion to Compel an Independent Psychiatric Evaluation of the defendants in order to rebut psychological testimony presented by the defense.
The Commonwealth is entitled to have its expert conduct an independent psychiatric evaluation of each Defendant in a capital case where defendants may raise their mental capacity as an issue in the penalty phase of trial.
The Commonwealth of Pennsylvania filed a Notice of Aggravating Circumstances for both defendants on October 1, 2007, indicating its intention to seek the death penalty in the instant matter.
The Commonwealth is unsure of whether the Defendants intend to present any expert psychiatric report and testimony during the penalty phase of the instant trial.
If the Defendants intend to present psychological evidence during the penalty phase, the Commonwealth is entitled to the defense expert's report prior to the commencement of the the penalty phase.
In addition, pursuant to the decision of the Pennsylvania Supreme Court, the Commonwealth is entitled to have an independent psychiatric evaluation performed on each defendant prior to the guilt phase of trial when the defendants indicate that they may present psychiatric evidence in the penalty phase. Commonwealth v. Sartin 751 A.2d 1140 (Pa. 2000).
The Pennsylvania Supreme Court stated that the Fifth Amendment privilege against self-incrimination "does not preclude the government from gaining a balanced perspective of the Defendant's psychological make-up when the Defendant has expressed his intent to offer expert psychiatric testimony at the guilt or penalty phase. Commonwealth v. Sartin 751 A.2d at 1143.
The Pennsylvania Supreme Court recognizes that the Commonwealth "may only utilize the results of its psychological examination in a rebuttal capacity, and only as to those issues which have been implicated by the expert testimony of the Defendant's psychiatrist."
The Court, employing additional safeguards, required that the independent expert conducting the examination for the Commonwealth "not discuss his examination with anyone unless and until the results were released and that the results only be released if a penalty phase hearing took place at which the Defendant confirmed his intent to offer mental health or mental condition evidence in mitigation."
Any prior medical and psychological examinations of the defendants would be relevant in an examination of the defendants as requested herein.
In order to conduct a full and fair psychological examination of Defendants, the Commonwealth's expert is entitled to review any and all medical records obtained by or in the possession of the Correctional Facilities where the Defendants have been incarcerated, specifically any MMPI tests and any other records of medical and psychiatric tests or examinations.
In order to perform a full and fair psychological examination, the Commonwealth's expert must be provided with the results and raw data of any testing performed by the (doctors) who have already seen the defendants if such results and data exist.
The Commonwealth has retained the services of Dr. John O'Brien to conduct the examination of each Defendant. Dr. John O'Brien has advised the Commonwealth that he would be available to perform the examination.
WHEREFORE, the Commonwealth respectfully requests that this Honorable Court compel Defendants to undergo and independent psychiatric evaluation to be conducted by the Commonwealth's expert, Dr. John O'Brien, and that such report generated be submitted to the Court and placed under seal until such time as the Defendants confirm their intent to present mental health or mental condition evidence in mitigation at the penalty phase. The Commonwealth further respectfully requests that this Honorable Court compel the Lackawanna and Luzerne County Correctional Facilities and the doctors employed by the Defendants to submit any and all records of medical and psychological tests or examinations and the raw data from those tests of the defendants to the Commonwealth's expert, Dr. John O'Brien.