Date: January 10, 2012

Joseph Augello throws out psychiatric reports in Cody Lee homicide trial.

By Sheena Delazio sdelazio@timesleader.com
Staff Writer

WILKES-BARRE – Luzerne County Senior Judge Joseph Augello has barred testimony and any reports a psychiatrist has made in the homicide case of now-18-year-old Cody Lee. Augello also removed himself from the case.

In a three-page order, Augello said any report written by John O’Brien, and any testimony by him is not permitted at any of the proceedings in Lee’s case.

“This is another win for Cody Lee,” his attorney Peter Paul Olszewski Jr. said.

Lee is charged in the December 2009 shooting death of his 80-year-old great-grandfather, Herbert Lee, in Lake Township.

At a hearing in November, Augello heard arguments from Lee’s attorneys and prosecutors regarding a request by defense attorneys to have O’Brien’s testimony and reports thrown out.

Lee’s attorneys, Olszewski, Melissa Scartelli and Charles Rado, argued O’Brien’s testimony and reports should be disallowed because he likely based his opinions on evidence that had been previously suppressed in the case, including statements Lee made to investigators about the shooting.

The report could be used at a hearing in which a judge would decide if Lee’s case should stay in adult court or be handled in the county’s juvenile system.

That hearing has not yet been scheduled.

Defense attorneys argued it would be impossible for O’Brien to disregard or set aside what he has already read.

Prosecutors said at the November hearing that O’Brien said his opinion about Lee would not change, whether he read the statements or not.

Augello sided with the defense.

“The commonwealth witness should not be basing opinions upon matters which have been appropriately suppressed,” Augello wrote. “For this reason it would be inappropriate based upon our review of his report, for Dr. O’Brien to testify at the transfer hearing.”

Augello also said in his filing that because he also reviewed evidence, reports and opinions of experts, he believed it would be appropriate for another judge to conduct the request to transfer to juvenile court. Special Courts Administrator Kathleen Hubbard assigned newly elected Judge Joseph Sklarosky Jr. to preside over Lee’s trial and any further court proceedings.

A trial in the case has not yet been scheduled.

Assistant district attorneys Michael Melnick, Frank McCabe and Mamie Phillips are prosecuting the case. First Assistant District Attorney Sam Sanguedolce said Monday he and District Attorney Stefanie Salavantis are in the process of reviewing Augello’s decision with Melnick.

The prosecutors will then decide if the ruling should be appealed, Sanguedolce said.