Well, who knows about fair. The following articles discuss the separation of defendants issue. And as far as speedy, so far no luck there...



TNT DISCLAIMER: The following article is property of the cited newspaper and/or author. I did not write it nor do not make any claims to have written it. Read at your own risk!

Tried together or separate?
Judge must sort through the legal issues on how Selenski, Weakley will be tried.
By DAVID WEISS dweiss@timesleader.com

Posted on Fri, Mar. 09, 2007 here

WILKES-BARRE – It might appear as if the battle regarding the prosecution of homicide suspects Hugo Selenski and Paul Weakley is merely a battle over convenience. Should they be tried separately or together?

But there's actually a significant legal and strategic issue that could evolve from the squabble.

Here's the issue:

Investigators said Weakley gave them many statements implicating Selenski in the slayings of Michael Kerkowski and Tammy Fassett. Many of Weakley's own words also led to him being charged in the deaths, too.

That means Luzerne County prosecutors will undoubtedly want to use Weakley's statements as evidence against Weakley at trial, local attorneys said.

But there are also laws forbidding prosecutors from using Weakley's statements against Selenski, attorneys Demetrius Fannick, Ferris Webby and William Ruzzo said.

The issues leave Court of Common Pleas Judge Chester Muroski stuck with making the tough, yet very important decision in deciding whether to have a joint trial for the men.

If they are tried separately, like their attorneys want, it could allow Weakley's jury to hear all of his statements, while preventing Selenski's jury from hearing any of Weakley's words, unless Weakley testifies.

Or, Muroski could have a joint trial, like prosecutors want, and allow them to use a finely tuned, redacted form of Weakley's statements.

"It's not easy," Webby said. "It's not a cut-and-dry thing. It's case by case."

Muroski will try to use a recent state Supreme Court ruling in the case of Beth Ann Markman in making his decision.

The case, which stemmed from a Cumberland County homicide, had many of the same issues that are occurring in the Selenski/Weakley case.

In the Markman case, she and her boyfriend, William Housman, were charged with killing a woman.

They were tried together.

At trial, Housman opted not to testify. But prosecutors played for the jury an audio tape of Housman's confession. The tape was altered so references to Markman were redacted and replaced with the words "other person."

The judge instructed the jury to draw no inferences from that redaction and only use the statement as evidence against Housman.

Markman's attorneys objected. They said playing the tape violated Markman's rights to confrontation because they would not be able to cross-examine Housman on the statements.

The attorneys appealed.

And the Supreme Court in February agreed with them, reversing Markman's conviction.

The Supreme Court based its ruling on a few past cases.

One of those past cases, Bruton v. United States, said Bruton did not get a fair trial because prosecutors, at a joint trial for two defendants, used the unredacted statement of Bruton's co-defendant, who did not testify. The statement incriminated Bruton, but his attorneys were unable to cross-examine that co-defendant. That was a violation of Bruton's right to confront his accusers.

Another case, Richardson v. Marsh, said it was OK to use a statement like the one in Bruton, as long as the statement is redacted to not only eliminate the other defendant's name, but also any reference to his or her existence.

But another case, Gray v. Maryland, said it was illegal to use a redacted statement that contained an obvious deletion, such as a blank space or the word "deleted" when it came to another defendant's name.

So that leaves Muroski with figuring out how to handle the Selenski/Weakley case based on those rulings.

Webby, who is not involved with any of the cases at hand, said the judge will need to know how District Attorney David Lupas intends to handle the Weakley statements in making that decision.

Fannick, Selenski's previous attorney, believes Lupas will argue he "can legally and sufficiently redact (Weakley's) statements so that they are admissible" at a joint trial.

That's important to prosecutors, Ruzzo said.

Even though the jury, at a joint trial, would be instructed to use the statements solely as evidence against Weakley, the statements would surely weigh heavily in the jury's discussion of Selenski, Ruzzo said.

If the redaction in Weakley's statement is obvious, Webby and Ruzzo said, jurors will be able to use their common sense to determine who the "other person" in the statement is.

"Sometimes our jurists think the jury is a machine," Webby said. "They're not. They're human beings."

Prosecutors, Ruzzo said, would probably want the jury to infer that any other person referred to in Weakley's statements and linked to the killings is Selenski.

Ruzzo said defense attorneys will likely argue that separating the two trials is the best way to ensure a fair trial.

If Muroski does so, Fannick sees that as helping Selenski because his jury would not hear any type of implication from Weakley, unless he testifies.

"It's hearsay," Webby said.

Weakley testified at Selenski's first trial in the death of two suspected drug dealers. But Weakley wasn't facing homicide charges then.

Weakley has not confessed to any killings. Police said his changing stories, in part, led to his homicide charges.

Now, facing those charges, Weakley could not be forced to testify because of his constitutional rights. His testimony against Selenski, Fannick said, could rely on prosecutors cutting a plea deal with him to get him on the stand.

"The statements, or Weakley's testimony, are an important piece of evidence against Hugo," Fannick said. "I'm sure they would want the statements in or have Weakley testify against Hugo."

Muroski, at a prior hearing, told Lupas, Selenski's team, led by attorney John Pike, and Weakley's team, led by attorney Joseph Nocito, to file legal briefs indicating how they felt the Markman ruling applied to their cases. They must be filed by today.

Lupas, Pike and Nocito said they would not comment on their specific arguments on the issue.

"All that will be handled in court," Lupas said.

--------------------------------------------
David Weiss, a Times Leader staff writer, may be reached at 831-7397.



TNT DISCLAIMER: The following article is property of the cited newspaper and/or author. I did not write it nor do not make any claims to have written it. Read at your own risk!


Attorneys fight over Selenski/Weakley trial
By DAVID WEISS dweiss@timesleader.com

Posted on Fri, Mar. 09, 2007 here

WILKES-BARRE – - Prosecutors said they could adequately redact any statements Paul Weakley made to police about Hugo Selenski in order to present them to one jury without violating Selenski's rights.

But Selenski's attorneys don't think any redaction will stop a jury from thinking the alteration refers to their client. That, they said, is enough reason to have separate trials for the men.

The exchange came in court papers filed Friday in the fight over whether Weakley and Selenski should be prosecuted together or separately in the slayings of Michael Kerkowski and Tammy Fassett.

Attorneys for both suspects want separate trials. Prosecutors want one trial for both men.

The main issue complicating the matter revolves around statements Weakley made to police implicating Selenski. The statements also led to Weakley being charged in the deaths.

Prosecutors will most likely want to use those statements against Weakley at trial. But there are laws forbidding them from using the statements, in full, against Selenski, unless Weakley testifies.

That leaves Luzerne County Court of Common Pleas Judge Chester Muroski with the chore of figuring out whether the men should have separate trials so prosecutors can freely use Weakley's statements at his trial, or have one trial using redacted statements of Weakley so they do not violate the Selenski's right to a fair trial.

For more on the debate read tomorrow's Times Leader.



Yeaaaah, you know I'll be reading tomorrow's TL. It's a joke that the DA's office thinks they can 'redact' the affected statements as needed so as not to taint the jury- come onnnn!! Who the hell will they think the other person will be? No, certainly not the other defendant!! Riiiiiiiiiight....