Friday, July 11, 2014

Prosecutors must give up Selenski’s health data

Judge rules prosecuting attorneys were not entitled to mental health records.

May 24. 2013 12:00AM

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WILKES-BARRE — A Luzerne County judge on Thursday imposed sanctions on prosecutors in the Hugo Selenski case regarding what defense attorneys said was “misconduct” in obtaining the double-homicide defendant’s medical records.

Judge Fred Pierantoni, in an 18-page ruling, said prosecutors must get rid of any medical records they obtained regarding Selenski, but he did not impose a defense-suggested penalty of a $1,000 daily fine for each day prosecutors had the records.

Selenski, 39, of Kingston Township, is awaiting a June 24 trial in the May 2002 deaths of Michael Kerkowski and Tammy Fassett, both 38 at the time. Their bodies were unearthed from the property where Selenski was living in June 2003. He might face the death penalty if convicted of first-degree murder.

In December his attorneys, said prosecutors obtained medical and psychiatric records of Selenski, even though at no time has Selenski made either his mental or physical health an issue.

Court papers say prosecutors obtained the records in August and have been holding the “ill-gotten gains” silently and “intentionally” issued subpoenas to obtain the records. A county judge and the defense attorneys previously denied a request by prosecutors to obtain the records.

Attorneys Shelley Centini and Edward Rymsza asked that the District Attorney’s Office be barred from prosecuting the case, that the documents obtained by prosecutors be destroyed, or that the District Attorney’s Office pay a $1,000 fine for every day it possess the records, among other requests.

It is unknown if prosecutors will appeal Pierantoni’s decisions. Attorneys are prohibited from commenting due to a court-imposed gag order.

Pierantoni ruled that: prosecutors may not use a report written by a psychiatrist who reviewed the records, a District Attorney’s Office administrative assistant must remove or delete the medical records from the office’s computer system, the office cannot keep any records in any manner or place, records must be returned to defense attorneys within 48-hours of Thursday’s ruling and prosecutors must file an affidavit stating they have retained no copies.

Pierantoni said in his ruling Selenski’s attorneys never filed a notice making his mental status an issue and that no other presiding judge made Selenski’s mental health an issue.

If prosecutors wanted a psychiatrist to examine Selenski’s mental health records, they could have subpoenaed the records to be forwarded to the psychiatrist, or could have done so in “a number” of other ways, Pierantoni wrote.

A previously presiding judge, Pierantoni wrote, also denied a request to secure mental health records.

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