Harlow and Joe's Proposed Voir Dire

Defendant's Proposed Voir Dire

I. HARDSHIP:

A. We anticipate that the trial in this case may last at least two to three weeks. Would service as a juror in this case impose a substantial hardship on you?

B. Do you suffer from any kind of physical impairment, infirmity or disability which would prevent you from sitting for long periods of time for several weeks and hearing and concentrating on testimony and evidence, or do you have any condition which would impede your service as a juror in this case?

II. PUBLICITY:

A. Have you read, observed or heard anything about the charges or facts of this case from any source, including but not limited to internet, newspaper, radio, television or person?

B. Based upon what you have read, observed or heard, have you discussed what you have learned with any person?

C. Based upon what you have read, observed or heard, have you formed or expressed any opinion as to the facts of the case, the guilt or innocence of the defendants or any sentence that should be imposed?

D. Is the opinion you have formed or expressed one that is firm or resolute in your mind?

E. Is your opinion of such a nature that you will not set it aside unless and until you hear evidence that convinces you that your opinion is wrong?

F. Would you require one or both of the defendants to take the stand and testify in order to change your opinion?

G. Would you disregard the judge’s instruction that the defendants have the right not to testify in their own defense because of the opinion you have formed?

H. Would you disregard the judge’s instruction that the defendants are right now and throughout the trial presumed innocent unless and until proven guilty by the Commonwealth beyond a reasonable doubt because of the opinion you have formed?

I. Because of anything you may have read, observed or heard, would there be any reason you could not be a fair and impartial juror in this case?

III. BIAS RELATING TO SEXUAL ORIENTATION:

The defendants in this case are homosexual. Further, the defendants were partners in a committed homosexual relationship. The victim in this case was also a homosexual. Testimony may be elicited from both the Commonwealth and defense regarding the sexual orientation of both the defendants and the victim. Given those facts:

A. Do you perceive that homosexuals are more or less likely to commit crimes or engage in criminal conduct?

B. Have you, members of your family or close friends ever made a joke about homosexuals?

C. Have you, members of your family or close friends ever referred to homosexuals by using a derogatory term such as “fag,” “queer,” etc?

D. Have you, members of your family or close friends ever felt uncomfortable in the presence of a homosexual, whether in a public facility, metropolitan area or neighborhood?

E. Have you, members of your family or close friends ever avoided situations where contact with homosexuals would be anticipated?

F. Have you, members of your family or close friends ever avoided television or media programs where homosexuals would be depicted simply because of that fact alone?

G. Have you, members of your family or close friends ever commented about the propriety of homosexuals living in committed relationships?

H. Have you, members of your family or close friends ever remarked about or objected to the demonstration of homosexual civil marriage ceremonies?

I. Have you, members of your family or close friends ever refused to associate yourselves with homosexuals?

J. Have you, members of your family or close friends ever commented on a perceived connection between homosexuals and disease including but not limited to HIV and the AIDS virus?

K. Would the fact that homosexuals are accused of killing another homosexual in any way affect your ability to serve as an impartial juror in this case?

L. Would you find the testimony of a homosexual less credible than that of a heterosexual simply because of their sexual orientation?

M. Would the fact that the defendants were in a committed homosexual relationship at the time of the commission of the alleged offense in any way affect your ability to serve as an impartial juror in this case?

N. Has anything ever occurred involving you, a member of your family or close friend which involved a person of homosexual orientation that would in any way create a feeling of animosity or hostility towards either of the defendants?

O. Are you conscious of any prejudice or bias against homosexuals?

P. Are you, any member of your family or close friends a member of any group or organization that advocates against homosexuality?

Q. Would the fact that either defendant may have a homosexual orientation or have a lifestyle different than yours in any way affect your ability to sit as a fair and impartial juror in this case?

IV. BIAS RELATING TO HOMOSEXUAL PORNOGRAPHY INDUSTRY:

Both the defendants and the victim in this case were engaged in the production of homosexual pornography. The majority of this business was conducted over the internet. Testimony may be elicited from the Commonwealth and the defendants about the homosexual pornography industry. Given those facts:

A. Do you perceive that people in the pornography industry generally are more likely to commit crimes or to engage in criminal conduct?

B. Have you, members of your family or close friends ever remarked about or objected to the display of homosexual activities through pornographic media?

C. Have you, members of your family or close friends ever remarked about or objected to those who profit from the display of homosexual activities?

D. Have you, members of your family or close friends ever commented on a perceived connection between homosexual pornography and disease including but not limited to HIV and the AIDS virus?

E. Would the fact that the defendants were involved in the homosexual pornography industry in any way affect your ability to be a fair and impartial juror?

F. Are you conscious of any prejudice or bias against those who work in the homosexual pornography business?

G. Do you, members of your family or close friends hold the belief that pornography of any kind generally leads to the degradation of the morals of the individuals involved in the industry and/or society as a whole?

H. Have you, members of your family or close friends ever spoken out against the pornography industry generally?

I. Would you find the testimony of an individual involved in the homosexual pornography industry less credible than that of a heterosexual simply because of their employment?

V. WITNESSES:

The Commonwealth is under a burden to prove each and every element of each and every crime charged beyond a reasonable doubt. They may attempt to do so through the presentation of testimony given by witnesses. The defense is under no burden whatsoever to call any witnesses on their behalf or to take the stand in their own defense. That is because both defendants are presumed innocent and remain innocent unless the jury says otherwise. The only burden in the courtroom is upon the Commonwealth. When witnesses testify, you are to judge their credibility. Given those facts:

A. Is there any reason you could not accept the principles of burden of proof, presumption of innocence and assessment of credibility of witnesses I have just discussed and within that framework sit as a fair and impartial juror?

B. Do you know anyone employed by the Luzerne County District Attorney’s Office?

C. Do you know any of the attorneys for the defendants?

D. Do you know any employees of any prosecuting or investigating police agency?

E. The victim in this case is Bryan Kocis of Midland Drive in Dallas, Pennsylvania. Does anyone know Mr. Kocis or any member of his family?

F. The defendants are Joseph Kerekes and Harlow Cuadra of Virginia Beach, Virginia. Does anyone know Mr. Kerekes or Mr. Cuadra or any member of their family?

G. The Commonwealth has identified the following individuals who may be called as witnesses to testify on behalf of the prosecution: [ witnesses]. Do you know any of those individuals?

H. Several law enforcement officers from different law enforcement agencies may be called to testify. Would you find the testimony of a police officer more credible simply because he is a police officer?

I. Have you, members of your family or close friends had any law enforcement training or experience?

VI. CIRCUMSTANCES OF CRIME:

The Commonwealth is alleging that the defendants both individually and acting in concert with one another entered Bryan Kocis’ home, killed him by slicing his throat, stabbed his remains 28 times, stole items from his home and set his home on fire. The defendants have pled not guilty. Given these facts:

A. Is there anything about the nature of these allegations which would substantially impair your ability to sit as a fair and impartial juror?

B. Given the nature of the factual allegations, do you have any bias or prejudice against either of the defendants because they are charged with committing these acts?

C. Do you favor the prosecution because they are seeking to hold someone responsible
for these acts?

D. Because the defendants are charged with these acts, would you require either or both of them to prove their innocence by testifying and presenting evidence? Would you impose this requirement despite any instruction that the Court would give you that the defendants are presumed innocent, that they do not have to testify or present evidence, that if one or both of them do not testify or present evidence it cannot be held against them and that the Commonwealth must prove guilt beyond a reasonable doubt?

E. Because of the nature of the charges, do you have any substantial doubt as to whether you could enter a verdict of not guilty in the event that the Commonwealth does not prove the crimes charged beyond a reasonable doubt?

F. Are you afraid of either defendant? If so, does this fear substantially impair your ability to sit as a fair and impartial juror?

G. If the Commonwealth did not prove its case beyond a reasonable doubt, would you nevertheless be reluctant to return a verdict of not guilty simply because you would fear public or community sentiment or opinion regarding your verdict?

H. During jury selection and trial you will observe security and sheriffs deputies in the courtroom. Such security is designed to ensure that the proceedings are conducted in an orderly fashion. Given the fact that security will be in the courtroom, would that in any way substantially impair your ability to sit as a fair and impartial juror?

I. Evidence will be presented that references modern technology, including but not limited to computer forensics, emailing, internet, IP addresses, cellular tower signals, laptop computers and mobile air cards. Are you uncomfortable with such modern technology? Do you lack basic understanding about such technology? If so, would your lack of basic knowledge and/or your discomfort in any way impede your ability to listen to such testimony or cause you to disregard such testimony, thereby impacting your ability to fairly consider all evidence presented?

J. Have you, a member of your family or a close friend been charged with any offense similar to those charged in this case?

L. Have you, a member of your family or a close friend ever witnessed any crimes similar to those charged in this case?

M. Have you, a member of your family or a close friend ever been a victim of a crime similar to those charged in this case?

VII. CONSOLIDATED TRIALS:

The Commonwealth has joined the individual cases against each defendant together for purposes of trial. This means that some evidence that will be presented during this trial that may only pertain to one defendant, and other evidence will be presented that may pertain to both defendants. Nevertheless, you must hear all of the testimony and decide what would be relevant in considering the guilt or innocence of each defendant separately. Given those facts:

A. Do you believe that you would have a substantial problem considering evidence that only relates to one defendant when considering that defendant’s guilt or innocence and not considering it for the other defendant?

B. Do you believe that hearing evidence regarding the separate actions of each defendant would in any way impact your ability to assess the actions of each defendant separately, fairly and impartially?

VIII. CAPITAL PUNISHMENT:

The Commonwealth has charged an open count of Criminal Homicide against each defendant relating to the death of Bryan Kocis. An open count of Criminal Homicide in Pennsylvania encompasses three degrees of murder and two degrees of manslaughter. When an open count is charged, the jury must decide what degree is appropriate, if any. The Commonwealth intends to seek the death penalty if and only if the jury returns a verdict of first degree murder. If a verdict of first degree murder is returned, the Court must conduct a separate hearing after which the jury must decide whether the defendant(s) will be sentenced to death or life imprisonment without parole.

This separate proceeding is only reached upon conviction of first degree murder. If any other verdict is reached, the death penalty is no longer an option. Following the proceeding, the jury actually imposes the sentence. It is more than a recommendation.

During the penalty phase proceeding, the Commonwealth must prove what it considers to be aggravating circumstances beyond a reasonable doubt The jury must unanimously find these aggravating circumstances. If they do not, the sentence will be life in prison without parole. The defense may present mitigating evidence such as character, background, mental illness, etc. If the defense presents mitigating evidence, the jury must then weigh the aggravating evidence proven by the Commonwealth against the mitigating evidence presented by the defense. If the aggravators outweigh the mitigators, death is imposed. If the mitigators are equal to or outweigh the aggravators, life without parole is imposed. Given those facts and what you now know about the case:

A. Would you reject evidence or give it little or no weight presented by the defendants regarding character, background, mental health or anything else as mitigation to support a claim that life without parole should be imposed?

B. Would you automatically hold that in a case such as this, the death penalty should be imposed, without regard to the weighing process I have described?

C. Do you believe the death penalty should automatically be imposed every time a person is convicted of first degree murder?

D. If the Commonwealth does not prove one or more aggravators, would you have any problem returning a verdict of life without parole?

E. Can you follow the instructions regarding the weighing process even though if you reach penalty phase you would have been part of the same jury that convicted the defendant(s) of first degree murder?

F. Can you return a verdict of something less than first degree murder or acquit one or both defendants entirely if warranted by law and evidence, even though the Commonwealth is seeking the death penalty for the intentional, premeditated killing of Bryan Kocis?

G. Given the nature of the case, can you perceive of any problem returning a sentence of life without parole in the event that first degree murder is the verdict?

H. Do you have any religious, moral or other objections to the death penalty to such a degree that it would prevent you from sitting as a juror or imposing a sentence of death?

I. Under the law, the death penalty cannot be imposed for an accomplice. In other words, if you find that one defendant was only an accomplice to first degree murder, you will not be required to consider the death penalty against that defendant. Nevertheless, do you believe that the death penalty should be imposed anytime that someone is a mere accomplice to an intentional premeditated murder?

J. Have you ever supported or been a member of any group or organization that advocates in favor of the death penalty?

K. Have you ever opposed, ridiculed or advocated against any group or organization that is against the death penalty?

Respectfully Submitted,

SHELLY L. CENTINI, ESQ.
Attorney for Defendant Kerekes

JOHN PIKE, ESQ.
Attorney for Defendant Kerekes

STEVEN MENN, ESQ.
Attorney for Defendant Cuadra

MICHAEL B. SENAPE, ESQ.
Attorney for Defendant Cuadra