Date: November 15, 2011

The defense wants a psychiatric report thrown out in the homicide case against 17-year-old Cody Lee.

By Sheena Delazio sdelazio@timesleader.com
Staff Writer

WILKES-BARRE – A Luzerne County senior judge said Monday he’ll soon rule whether a psychiatric report should be thrown out, and the psychiatrist prohibited from testifying further, in the homicide case against a 17-year-old.

Senior Judge Joseph Augello heard arguments from Cody Lee’s attorneys and prosecutors regarding a report defense attorneys say should be thrown out because it is based on evidence that had been suppressed in the case.

That evidence includes statements Lee allegedly made to investigators about the shooting death of his great-grandfather, 80-year-old Herbert Lee, in December 2009.

Because psychiatrist John O’Brien likely based his opinion in the report on the statements Lee made, his report and his testimony should be prohibited from any further court hearings, defense attorney Peter Paul Olszewski argued.

The report, attorneys said, will be used at a hearing where the judge will decide if Lee’s case should stay in adult court or be handled in the county’s juvenile system.

Olszewski, who represents Lee along with attorneys Melissa Scartelli and Charles Rado, argued it would be impossible for O’Brien to disregard or set aside what he has already read.

First Assistant District Attorney Jeff Tokach said when he spoke to O’Brien about the issue, O’Brien said his opinion about Lee would not change, no matter if he read the statements or not.

“He’s only giving his opinion to assist the court (in the transfer hearing), not (about) the nature and circumstances of the offense,” Tokach said.

Augello said he’ll need to review O’Brien’s report before he makes a decision on allowing its use and O’Brien’s further testimony in the case.

Augello also said a transfer to juvenile court hearing scheduled for next week will be put off until December, allowing him time to rule and attorneys to prepare for the hearing.

Lee’s attorneys also had requested that evidence seized in a search warrant of Lee’s home – a notebook and a backpack – be thrown out because they were illegally taken and should not be allowed to be used at a trial.

Augello said the request to throw out the evidence will not be decided until closer to a trial date, which has not been scheduled.