The Trial: It'a Gonna Be a Long One...

In today's Times Leader a little more is added to the story: Assistant District Attorney Mike Melnick expects his case to last about two weeks. Defense attorneys for both suspects said they expect their cases to last two to three days.

But if the suspects are tried separately, only one of them will go to trial in September.

Cuadra could still appeal a ruling that forbids attorney Demetrius Fannick from defending him, essentially putting off Cuadra’s trial for about a year.

Plan "A", Plan "B", or Plan "Me"?

Ever since Harlow Cuadra and Joseph Kerekes where considered suspects in the murder of Bryan Kocis, Joe's always seemed to have had a 'plan', and he was never afraid to state it... from 'we never knew the guy and Harlow was in VA with a client' to... 'I was at the Fox Ridge Inn doing e-mails, while Harlow was visiting Bryan.'

Joe's 'plans' don't make a whole lot of sense... but then again, is that really a surprise:

Plan A: "Alibi defense that stated he was out of the state the night Kocis was killed".

One quick look at the registration he signed (showing his Virginia Driver's Licence Number) when checking in at the Fox Ridge Inn would find that statement invalid. Not to mention the pings from PA towers to his cell phones numerous times... yep, bad idea... scrap Plan "A".

Plan B: "Alibi that states he was at a Plains Township motel when the murder occurred."

I'm not sure how Joe plans to prove this, as it's fairly obvious that his previous statements about having an email alibi, can easily be debunked.

And again... we have evidence of wireless devices owned and registered to Joe, pinging from cell towers in Dallas, PA. ( too far for it to be from the Fox Ridge Inn).

Plan Me: Throughout this entire ordeal, it's been pretty easy to see who Joe's looking after... forget about being 'partners' with Harlow for years... it's time for the survival of the 'fittest'... and it doesn't appear that Joe has any problem with taking prisoners... or at least giving them up first.

Date Set for Kocis Murder Trial

(Update 04/17/2008): The Citizens' Voice has posted a correction to an article in Wednesday’s edition about the scheduling of a Sept. 2 trial for accused killers Harlow Cuadra and Joseph Kerekes misstated Kerekes’ attorneys’ position on a possible alibi defense. Kerekes’ attorneys have maintained he was at the Fox Ridge Motel in Plains Township the night Bryan Kocis was killed in Dallas Township last January. Prosecutors had raised the possibility of Kerekes having two potential alibis, “Plan A” and “Plan B,” but no documents filed by Kerekes’ attorneys ever mentioned a second alibi.

----
(Update 04/16/2008): The Citizens' Voice is also reporting that during yesterday's status conference, Justin Hensley, a prosecution witness serving with the Army National Guard in Iraq, might be able to testify at the trial, Melnick said.

Prosecutors submitted a motion last week claiming Hensley’s military duty would make him unavailable. The motion also sought to admit testimony Hensley gave at a preliminary hearing.

Hensley, who worked with Cuadra and Kerekes in the making of homosexual pornographic movies, recently had his tour of duty extended into next year, but may be able to obtain temporary leave, Capt. Sonny Louie said in an e-mail to prosecutors.

“Mr. Hensley is a very material commonwealth witness,” Melnick told Olszewski. “He sets the scene for the events that transpired that evening.”

----
The Citizens' Voice is reporting that Joseph Kerekes and Harlow Cuadra will stand trial for the murder of Brian Kocis beginning on Sept. 2, Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. ruled at a hearing Tuesday.

Also Tuesday, Kerekes' attorneys said he will abandon a "Plan A" alibi defense that stated he was out of the state the night Kocis was killed.

Kerekes will instead offer a "Plan B" alibi that states he was at a Plains Township motel when the murder occurred.

The dual potential alibis had compelled prosecutors to submit a list of 385 alibi rebuttal witnesses. Kerekes' attorneys argued the list included immaterial witnesses who had no knowledge of Kerekes' whereabouts.

Prosecutors agreed Tuesday to submit a new witness list, with significantly fewer names, once Kerekes' attorneys said he would only offer the motel alibi.

----
The Times Leader is reporting now that the confusion over who will defend suspect Harlow Cuadra has temporarily settled, a judge on Tuesday was able to resolve several other disputes in the homicide case.

Luzerne County Court of Common Pleas Judge Peter Paul Olszewski Jr. on Tuesday scheduled the trial of Cuadra and Joseph Kerekes to begin Sept. 2.

But if the trials end up being severed, only one of the suspects will go to trial in September.

The judge also gave Cuadra's attorneys until May 9 to file their pre-trial motions. A hearing on all of the motions will be scheduled. He said the hearing will likely occur in about a month.

He also ordered prosecutors to revamp their list of witnesses who are expected to rebut Kerekes' alibi defense.

Kerekes' attorneys have said they might present a defense to show Kerekes was at a Plains Township motel when Kocis was being killed inside his Dallas Township home.

Prosecutors later presented a list of 385 potential witnesses to rebut that alibi.

But Kerekes' attorneys said the response was illegal because many of the witnesses had not been contacted about their potential testimony. And they would need more resources and time to interview all 385.

Olszewski on Tuesday said the prosecution's list must contain witnesses who have knowledge that Kerekes was not at the motel at the time.

Assistant District Attorney Mike Melnick said that will significantly reduce the list.

Olszewski has yet to rule on whether Kerekes' charges should be dismissed for a lack of evidence and whether he has to undergo a psychiatric evaluation for prosecutors, as they had requested.

A Kerekes attorney, Shelley Centini, said the defense team had not yet had their own evaluation done. They need to do that first and then decide if they will use it at trial.

Once the defense make that determination, Olszewski said he will decide whether Kerekes should undergo an evaluation for prosecutors.

A Taxing Day Indeed...

The next status conference for Harlow Cuadra and Joseph Kerekes is scheduled for April 15, 2008 @ 1:30 PM. During this hearing, there will be several issues Judge Peter Paul Olszewski will hear testimony and arguments on:

1. Prosecution's request for independent pyschiatric evaluations.
2. Prosecution's request for handwriting exemplars.
3. Kerekes' petition for Writ of Habeas Corpus.
4. Prosecution's request to include Justin Hensley's previous testimony.
5. Kerekes' attorneys want Prosecutors sanctioned.

Other motions that were filed months ago, and are still not ruled upon include:

1. Kerekes' attorneys want the trial moved out of Luzerne County.
2. Kerekes' attorneys want a separate trial for Kerekes and co-defendant Harlow Cuadra.
3. Kerekes' attorneys want to prevent the Prosecution from using any statements Kerekes made to police, the contents of any conversations recorded at a California beach, and the contents of any evidence seized from Kerekes' e-mail account and Virginia home.
4. Kerekes' attorneys want to keep any past criminal record of Kerekes out of trial.

All-in-all, it should make for an interesting afternoon, and a taxing day indeed for PPO. I don't expect the judge to schedule a new trial date though... as Harlow will still have a couple of more days after this hearing, to file an appeal for the removal of his previous attorney Demetrius Fannick.

A Snail's Pace... or Just the Norm?

Both Harlow Cuadra and Joseph Kerekes have been sitting in jail for almost a year now... yet... to date there's been no trial. Some will exclaim that it's a normal process of the judicial system, while others will surely claim that it's unfair, or even worse... a conspiracy. Let's take a look at the 'average time it takes to go to trial' for a capital case, then you can decide:

Recent Capital Cases in Luzerne County:

• William Roland: Arrest: 08/17/2006; Trial: 09/19/2007
• Joseph Gacha: Arrest: 06/02/2004; Trial: 09/05/2006
• Larry Tooley: Arrest: 11/11/2002; Trial: 09/09/2003
• Henry Stubbs: Arrest: 02/26/2002; Trial: 04/23/2003

With the excepton of Joseph Gacha (many twists and turns before trial - sound familiar?), the average time between arrest and trial was just a little over a year. Harlow and Joe were arrested in Virginia on May 15, 2007... they chose to fight extradition... and weren't even brought into Pennsylvania's custody until July 17, 2007. (There's 2 months wasted already).

While the original trial date (March 24, 2008) has come and gone... based on what appears to be the average time from arrest to trial, this case actually seems to still be 'normal'. In some States the average time from arrest to disposition can be as high as 26 months: New York (Full Capital Trials Since 9/1/95).

Let's hope it doesn't take that long.

Kerekes' Attorneys: Witness List Designed to Hamper Defense

Update: Prosecutors said in a brief filed Friday that Kerekes may be planning two potential alibis — one in which he claims he was at the motel and another in which he claims he was out of the state at the time.

“The Commonwealth must be prepared to meet any and all proposed alibis espoused by (Kerekes),” the prosecutors, Jackie Carroll Musto, Michael Melnick, Timothy Doherty and Shannon Crake, said.

----
The Citizen's Voice is reporting that attorneys for Joseph Kerekes filed a memorandum Friday arguing a prosecution witness list of 385 people is designed to hamper his defense.

The attorneys said the witness list is "inclusive of immaterial witnesses," who have little or no knowledge of the case. They said the tactic "unlawfully hampers the defense from effectively preparing its case."

Attorneys John Pike, Mark Bufalino and Shelley Centini requested the court prohibit prosecutors from introducing evidence or testimony to rebut Kerekes' alibi defense.

"The said list identified 385 prospective witnesses, some of which have no knowledge of Kerekes' whereabouts on the day and time of the alleged crime," the attorneys said.

If Judge Peter Paul Olzsewski Jr. rules that prosecutors can present a rebuttal of Kerekes' alibi, his attorneys said they would request additional funding from the district attorney's office to hire investigators to interview all 385 witnesses.

Motion to Include Former Testimony of Justin Hensley

(Note: This motion was filed on 11/06/07 - the trial date and counsel(s) have changed since that time)

--------
Due to Justin Hensley being stationed overseas in Iraq, he must be deemed unavailable at the upcoming trial that is, scheduled to begin on March 28, 2008. The Pennsylvania Rules of Evidence clearly states that "Unavailability of a witness includes a situation where the declarant is unable to be present or to testify at the hearing because the Commonwealth is not able to procure the witnesses testimony by process or other reasonable means. Pennsylvania Rule of Evidence 804(a)(4).

According to 42 Pa. C.S.A. § 5917, "whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards dies... notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue." 42 Pa. C.S.A. § 5917.

The Appellate Courts of Pennsylvania have consistently held that a deceased witness's preliminary hearing testimony is admissible in the subsequent trial at the Common Plea Court level where the defendent was provided with a full and fair opportunity for cross examination. See Commonwealth v. Williams, 460 A.2d 1178, (Pa. Super. 1983), Commonwealth v. Thompson, 648 A.2d 315 (Pa. 1994), Commonwealth v. Scarborough, 421 A.2d 147, (Pa. Super. 1980), Commonwealth v. Werner, 282 A2.d 258, (Pa. Super. 1971).

Justin Hensley was cross examined by Attorney Tom Cometa, defense counsel for Harlow Raymond Cuadra and asked approximately sixty-eight (68) questions and by Attorney Frank Nocito, defense counsel for Joseph Manuel Kerekes, who asked approximately forty-seven (47) questions. Furthermore, Attorney Cometa asked an additional seventeen (17) questions on re-cross-examination of the witness and Attorney Nocito asked and additional twenty (20) questions on re-cross-examination of the witness. Attorney Melnick did not enter any objections during the defense counsel cross examination and re-cross examination.

The Commonwealth at no time attempted to limit areas of inquiry or subject matter of either defense counsel's cross examination. Furthermore, defense counsel was given the witness statement of Justin Hensley prior to his testimony.