Pleading Out

What are the chances that before this case is over, either Mr. Cuadra or Mr. Kerekes (or both) will throw in the towel and just plead guilty to the charges? The short answer would be, “mighty high,” if only because that’s what most defendants do.

A video from the Criminal Justice channel has some basic information. But what makes a proper plea bargain? Well, it has two parts: the information and the waiver. Both are required.

First, the client has to know what he’s doing. He has to be represented by counsel, and has to be informed of all the consequences incumbent with his plea.

Next, he has to voluntarily waive certain of his rights. In effect, a plea bargain is like a supercharged version of that Miranda waiver that police try to get bad guys to sign so that they might be questioned. Only in this instance, the defendant is essentially waiving his Fifth Amendment right against self-incrimination in toto.

If proof of one of the two elements is missing, the judge will throw out the plea deal. That’s right, before it’s done, the whole thing has to go before the trial judge to get him or her to sign off. The judge is under no legal compulsion to agree to the deal.

In practice, however, plea agreements are seldom invalidated by the bench. The agreements do get breeched from time to time—usually because prosecutors find out that the defendant lied about something during the course of plea negotiations.

Now, there is also a special sort of guilty plea that pops up very rarely: the Alford plea. That’s a plain, old guilty plea with a twist: the defendant does not admit guilt. In all other ways— in sentencing, as a record of previous bad acts in subsequent trials, as a criminal step toward Habitual Offender status— the Alford plea is just like a standard guilty plea. It's also peculiar and passingly infrequent.

Finally, there’s the plea that uniquely splits the difference between guilty and not guilty: No contest (AKA nolo contendere, among the guys who took Latin in prep school to boost their SAT Verbals.)

A defendant who pleads ‘no contest’ is basically refusing to put up a legal fight. In essence, he gets treated thereafter just as if he had pleaded guilty, except the plea “is in no way an admission of guilt and [differs from an Alford plea in that] it cannot be introduced in future trials as evidence of incorrigibility. Nevertheless, courts do not have to accept a plea of nolo contendere, and usually do not, except in certain nonviolent cases.” [*]

-KM

Preliminary Hearing Continued Again...

The 'new' date for the preliminary hearing is August 20, 2007.

Harlow's Docket
Joe's Docket

Harlow's House Redux & Some Serious Charges

Harlow Cuadra’s self-appointed ‘Angel of Truth’ has now confirmed what we reported here two weeks ago: that the Commonwealth of Virginia has decided to stop forfeiture proceedings on the house Cuadra owned along with fellow murder suspect Joe Kerekes.



At the time of that earlier story, there were angry denials from Cuadra’s former ‘bloggist,’ but today a new spokesperson for Cuadra posted the following to HarlowCuadraOnline.com: “The Document for them [Cuadra and Kerekes] to get the house has been signed by both Harlow and Joe, but needless to say they are loosing [sic.] all of there [sic.] other property to get back this one thing, the state refused to give them back anything else....

“We will hope that the house will sell for something to help pay anything to the attorneys, anything is better then nothing!”

As we reported in July, the house may indeed be worth less than nothing. Publicly available credit records show that, as of now, Harlow and Joe owe approximately $533,400 in primary and second mortgages on the 1028 Stratem Court property. Those records also indicate that primary mortgage payment is 30 days past due, while the second mortgage payment is 60 days overdue.

Clearly, only a quick sale at a premium price will turn the house from a liability to an asset. That’s why the house was to be returned, according to law enforcement sources, speaking last month on condition of anonymity— there is “little, to no equity” in it.

In today’s long statement, the Harlow camp makes other remarkable comments, as well, including sharp criticisms leveled at Virginia authorities for their handling of the forfeiture case, and another utterly outrageous allegation: that the incomplete forfeiture proceedings led to a Catch 22 wherein Harlow and Joe were somehow adjudged too wealthy to qualify for public defenders in the murder case in Pennsylvania, yet still had all of their assets in state hands in Virginia, thus unavailable for use retaining private counsel.

That latter charge of denial of counsel is a serious one— as such a combined action by the Commonwealths of Pennsylvania and Virginia would be, of course, in total contravention of all court rules, procedures, laws and Constitutional precepts. Such a move by the State—on its own— could constitute reversible error in the Pennsylvania prosecution.

In fact, the ‘Angel’s’ allegation describes a move so extreme and so far outside of ordinary legal practice that one is perhaps excused for wondering if he or she is not somehow mistaken about it.

-Both PC and KM contributed to this story.

'The Angel' Gives Harlow's Side of It

Harlow Cuadra’s official spokesperson, the bloggist on HarlowCuadraOnline.com, has released some new information about the case. The info is reputedly meant to correct the misapprehensions of ‘some bloggers’ interested in the case.

We at Harlow and Joe... On Trial believe in covering the whole story. So the Harlow camp deserves to have its say here. Let’s get to it.



The Angel of Truth writes: "Some bloggers have been noting on a few things taken from Harlow and Joes home when they searched it, the video tapes in question that are listed were videos that Harlow and Joe had made, the police confiscated all of the videos in the home...."

Good to know. Presumably, however, the police had hopes of finding those missing ‘master tapes.’ The question has to be asked then: is it Harlow and Joe themselves who have affirmed just what those tapes were? Or someone else who’d clearly know? Unless the source of that assertion is known, we must remain skeptical as to whether or not it is true.

The Angel again: “Joes mother has been notified by the police that they are going to return the guns to her, so as we can see there is no question as to whether a gun was used or not....”

As far as I know, no one has suggested that a gun was used.

and, "...the knife that he bought at the pawn shop that day was in the glove box of the BMW still in the paper and box it was sold to him in, never used...."

If true, that would be wonderful news for the Defense.

The bloggist Angel also has a remarkable view of the Vegas dinner, one never before released: "[Neither] Harlow nor Joe approached Sean or Grant about doing anything to Brian, the conversation was the other way around, there is an existing tape, that is the tape that Joe talks about in his email to Sean."

That would definitely disrupt the prosecution’s angle on things... if the tape could be produced. Where is it? Was it seized during the house search? Is it in the hands of Harlow and Joe’s attorneys?

More from Harlow’s spokesperson: "The situation at the restaurnt is not as it believed, Sean and Grant gave a good story but Harlow did them one better by breaking two very expensive glasses in the restaurant when they brought up the demise of Brian, at that point Harlow knocked over the glasses and asked the wait person for the check to get out of there."

That is good. Well-played.

Of course, putting the shoe so firmly on the other foot opens Harlow and Joe to all those criticisms that Sean and Grant have weathered.

For example, why didn’t Harlow and Joe try to warn this Kocis fellow that someone wanted him dead? Why did they send those demanding emails to Grant and Sean after they knew that these guys were potential killers? Who would want to work with people you had to shatter glass to escape?

Then, too, one must also ask why Harlow wrote on his blog at the time that the glasses were broken while he was ‘toasting Grant?’ And which is the more spontaneous recollection? The one written a few days later, or the one that arises in a prison cell?

Beyond that is Harlow's own description of the end of the party: "We all decided to leave before they kicked us out. Once out side I [had] mark take some pics of us mostly for myspace."

Why ever would you want souvenir photos of your encounter with such vile, murderous people?

In closing, we would like to thank the Angel of Truth for providing so much new information. It’s truly fascinating stuff.

-Both PC and KM contributed to this story.

Parsing Homicide

Right now, the top charge that Cuadra and Kerekes face is defined under Title 18, Section 2501, Sub-section A of the Pennsylvania Consolidated Statutes. It’s better known as Criminal Homicide.

But the Commonwealth offers several flavors of Criminal Homicide to satisfy the tastes of prosecutors, defense lawyers, judges and jurors.

Question is, which of the tangy assortment will apply in this case?

Involuntary manslaughter is “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, [the defendant] causes the death of another person.”

Voluntary manslaughter is when “[a] person... kills an[other] individual...[but] at the time of the killing... is acting under a sudden and intense passion resulting from serious provocation by: the individual killed; or another whom the actor endeavors to kill, but [through negligence or accident] causes the death of the individual killed.”

Being mistaken about whether one is legally justified in killing another person is also voluntary homicide. Say, a misunderstanding of what self-defense really is.

Third-degree murder is mostly defined as what it isn’t: it’s “all other kinds murder” that aren’t first- or second-degree.

Second-degree murder is complex and relies not just on its overall definition but in specific definitions of the terms within that overall definition. From the statute: “A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”

“Perpetration of a felony" is thereafter defined as “[t]he act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.”

Those ancillary felonies are defined, of course in their own specific statutes.

Given that specific description of second-degree murder, we can perhaps see why Mr. Cuadra and Mr. Kerekes are also charged with all those lesser offenses: they are stepping stones to second-degree murder.

First-degree murder depends on the meaning of its terms, as well. To wit: “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.”

“Intentional killing” is “[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.”

Decide for yourself which of the above classifications the evidence supports, or is intended to support.

Preliminary Hearing

The preliminary hearing for Harlow Cuadra and Joseph Kerekes is now scheduled for 8/16/2007 - according to the criminal docket:

Joe's Docket:



Harlow's Docket:

It's All About Winning, Except When It Isn't

Imagine a trial wherein everyone openly agrees that those two fellows at the Defense table killed Bryan Kocis. Not only that, but imagine if everyone admitted it before the first juror was ever seated.

Mr. Cuadra and Mr. Kerekes may well have such a trial.

In fact, there are more murder trials that start that way than there are ‘I-really-didn’t-do-it’ kinds of cases. Yes, in both sorts of trials the plea is Not Guilty, but in the former type, one of the Defense’s first declarations is, “Oh yeah. My guy did it alright.”

For good or ill, that’s how criminal law operates in the United States. Every criminal case that actually goes all the way to a jury trial is seen by the State as a kind of failure— it only happens because prosecutors and defense attorneys failed to make a plea deal.

In those cases, everyone agrees about what happened on the fateful day (more or less), but they can't agree about what happens next. That's right, it means that the majority of jury trials are not about guilt, but which charges the defendants' are guilty of, the seriousness of those charges, and, ultimately about sentencing.

All US legal cases are, of course, adversarial proceedings. That is, when everything’s over, somebody wins and somebody loses. However, unraveling just who won is a whole lot more complex than what’s scribbled on the jury’s final note to the judge.

Texas defense attorney Mark Bennett: “If my client is acquitted, that's a 'win,' right? In most cases it would be. But what if, because we win one case, the government files a more serious charge (one that it can prove) against the client? I had a client whose 2-kilo cocaine case I beat in state court, only to see him receive six years in federal prison for the illegal reentry that the feds might not have bothered with had we not prevailed in state court. Is a pyrrhic victory a win?
[...]
“What about a guilty plea? Is a guilty plea a win or a loss? How can it be a loss if it's an outcome agreed to by the accused? If the accused goes to prison, how can it be a win?” [Unless it’s a guilty plea that, say, removes the threat of the death penalty. ]

So we have to wonder then, if all of Harlow’s and Joe’s dreams come true and they ‘win’ this case... what will their victories look like?

-KM

The Search Warrant Affidavit

Last February, when PA and VA authorities went a-gathering at Harlow and Joe's Stratem Court house with that search warrant in their hands, the VA folks were obviously looking for evidence of the high-life.



Now we have details on what the PA contingent was after...



The first thing to catch the savvy eye reads: "2 Boxes of Video Tapes". Remember how the arrest affidavit said that Cuadra and Kerekes had talked about viewing "approx. fifty five "master tapes" which came from Mr. Kocis' house? If— and underscore that 'if'—but if those recovered tapes are the long-lost Cobra "master tapes," their having turned up at Harlow and Joe's house would be a nasty blow to the 'Hey-we-didn't-kill-that-dude' defense.

Of course, the same reputed audio evidence that has Cuadra and Kerekes saying they saw the master tapes also reportedly has them claiming those tapes were destroyed. In this case, it's hard to spit without hitting an inconsistency, but sometimes it sure is fun to try.

These may or may not be the camcorders that police say were supposedly missing from Kocis' house. Those cameras found at Stratem Court had their serial numbers removed. That fact doesn't make it impossible to determine the origin... but it certainly makes it harder.



Receipts and other papers can be a boon to police. They can potentially help trace exactly where the SUV was driven (remember those missing miles?) And anything related to knife/gun/ammo purchases helps, too. In fact, any slip of paper that allows police to better determine Mr. Cuadra's and Mr. Kerekes movements at the time of the murder will certainly be used as evidence.

According to the arrest affidavit, paper documents went missing from Kocis' residence at the time of the murder. Are those the 'assorted documents' listed here, or are they just business documents related to Cuadra and Kerekes' business? We won't know until later.

This search-warrant information also suggests that more than one gun was removed from Stratem Court. But If Harlow and Joe already had at least one weapon, why buy a brand new revolver the day before the killing? We know from police that Kocis had a number of guns throughout his home... could any of the guns seized by PA searchers be one of those?

The seized clothes have likely been analyzed for blood, smoke, chemicals, and fibers... anything that would match with something at the crime scene, and could be used as evidence.



And the final item listed is the real head-scratcher: insulation. Apart from the possibility that it might be used to corroborate fiber analysis evidence from the crime scene, it's hard to know why investigators would want it. Anybody have any ideas?

- PC