Prosecutors face battle for death penalty sentence

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

WILKES-BARRE – Luzerne County prosecutors will return to the courtroom this morning to try to convince jurors to do something no county jury has done in more than decade: sentence a convicted killer to death.

Joseph D’Andrea, attorney for Harlow Cuadra, will face off against the lead prosecutor, Assistant District Attorney Michael Melnick, in what’s expected to be a day-long death penalty hearing.

Cuadra was convicted Thursday of first degree murder and 11 other charges for stabbing Brian Kocis to death inside his Dallas Township home on Jan. 24, 2007.

The death penalty hearing is a separate phase from the trial. If history is any indication, Melnick faces an uphill challenge to secure a death sentence.

Since 1985, Luzerne County prosecutors have tried 10 death penalty cases, securing a death sentence in only one – Michael Bardo, who was convicted in 1993 of killing his 3-year-old niece.

Jurors in the Cuadra case will weigh aggravating factors – those that make a crime more heinous – against mitigating factors – those that lessen a defendant’s culpability.

If the aggravating factors outweigh the mitigating, Cuadra will be sentenced to death. If not, he will be sentenced to life in prison without possibility of parole. The panel must vote unanimously for a death sentence, otherwise they will be considered deadlocked and a life sentence will be imposed.

Prosecutors say Cuadra and his one-time co-defendant, Joseph Kerekes, killed Kocis because he was their rival in the gay pornography industry. Kerekes previously pleaded guilty to second degree murder and was sentenced to life in prison.

Attorneys in the case were precluded from discussing the penalty phase due to a gag order that is in effect.

Court documents filed by the prosecution reveal Melnick will present two aggravating factors: the killing was committed during the perpetration of another felony – robbery – and that Cuadra put other lives at risk – those of firefighters who responded to a blaze Cuadra set at Kocis’ home to cover up the homicide. The robbery charge stems from the theft of several items from Kocis’s home.

For the mitigation, it’s anticipated D’Andrea will present experts to testify regarding Cuadra’s background and mental state. It’s also possible he will submit testimony regarding claims Cuadra made during his trial that he was sexually molested as a child by his stepfather.

The defense can also ask the jury to show mercy, which is a legally recognized mitigating factor. It, by itself, can outweigh all other factors in a jury’s decision.

The hearing is scheduled to begin at 8:30 a.m. before Judge Peter Paul Olszewski Jr.