Last updated: February 16. 2013 2:12PM - 553 Views

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WILKES-BARRE – A Luzerne County judge has ruled the homicide case of a teen charged in the December 2009 shooting death of his great-grandfather will be tried in adult court.


Judge Joseph Sklarosky Jr. denied the request of attorneys for Cody Lee, 19, to have their client's case transferred to juvenile court because Lee was 16 years old when he allegedly shot and killed 80-year-old Herbert Lee.


"We have thoroughly reviewed the evidence and arguments … We note that Lee is presumed innocent, is denied no defense and enjoys all of the due process safeguards in the criminal court setting," Sklarosky wrote. "We believe that his case is inappropriate for juvenile court."


Sklarosky's ruling came this week after five days of testimony in July regarding the defense attorneys' request. It is possible that attorneys Peter Paul Olszewski, Melissa Scartelli and Charles Rado may appeal.


Attorneys are prevented from commenting on the case due to a court-imposed gag order.


Lee will now have a preliminary hearing to determine if prosecutors have enough evidence against him to bring charges to county court. No hearing date has been set.


If Lee's case had been transferred to juvenile court, he would have been scheduled for an adjudication hearing and he could have faced a maximum term of detention until age 21.


Sklarosky sent Lee's case to Senior Judge Joseph Augello, who had originally been hearing it but recused himself after statements Lee allegedly made to police were suppressed. Augello said he could not fairly hear the transfer request after presiding over the motion to suppress statements.


Sklarosky wrote in a 15-page opinion that accompanied his ruling that several witnesses who testified at the five-day transfer hearing were "pivotal" to his ruling. The judge said he considered information from Lee's grandmother, a Luzerne County juvenile probation officer, a school guidance counselor and a Luzerne County Correctional Facility teacher.


The judge also discussed at length testimony by psychiatrist Dr. Richard Fischbein, who said Lee suffered from a depressive disorder attributed to the loss of family members during his lifetime. Sklarosky said he "rejected" Fischbein's opinion.


Also considered was testimony from Lee's cousin, who said the rifle used in the killing did not have a "hair trigger" and testimony from a state trooper that there was a live cartridge in the gun, meaning the last operator had to manually reload the gun after discharging a spent casing.


Lee's uncle testified his father kept the guns in the home under lock. Testimony revealed hinges on the cabinet were tampered with and screwdrivers were found in Lee's bedroom.


The Cody Lee case

• Dec. 10, 2009: 16-year-old Cody Lee charged with the shooting death of his great-grandfather, 80-year-old Herbert Lee.


• Jan. 22, 2010: Former Luzerne County district attorney and judge Peter Paul Olszewski enters his appearance to represent Lee, along with Melissa Scartelli and Charles Rado, who took on the case just a few days after Lee's arrest.


• April 8, 2010: Judge Joseph Augello rules statements Lee made to police admitting he killed his great-grandfather will not be admissible at an upcoming trial. Attorneys for Lee argued the teen made the statements while suffering from hypothermia and was unable to discern whether talking to police was the right or wrong thing to do. The ruling was appealed by prosecutors, but the state Superior Court upheld Augello's ruling.


• Jan. 9, 2011: Augello barred testimony and any reports a psychiatrist made in Lee's case. Augello also removed himself from the case. 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 because O'Brien had based his opinion on the previously suppressed statements.


• July 9, 2012: The first day of a five-day hearing regarding a request by Lee's attorneys to have their client's case heard in juvenile court because Lee was 16 years old at the time of the alleged incident.


• Aug. 6, 2012: Judge Joseph Sklarosky Jr., ruled Lee's case will be heard in adult court.



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