WILKES-BARRE – Luzerne County President Judge Thomas Burke ruled late Wednesday afternoon that the magistrate who dismissed a criminal homicide case last week should not preside over a preliminary hearing for the same suspect on the same charge this week.
A petition filed by the Luzerne County district attorney’s office asked Judge Burke to reassign the case, after magistrate James Tupper heard more than three hours of testimony before ruling there wasn’t enough evidence for Cody Lee to face trial for criminal homicide on Jan. 11.
Troopers accuse the Lee, 19, of shooting and killing his great-grandfather in his home near Dallas in December of 2009.
Moments after the homicide charge was dismissed, prosecutors ordered state police to re-arrest Lee inside the courtroom and charge him again with criminal homicide.
A preliminary hearing on the new charge was scheduled to take place at magistrate Tupper’s office Thursday morning, but Burke reassigned the case to magistrate Paul Roberts in Kingston.
The date for a new preliminary hearing has not yet been set.
Former Luzerne County District Attorney Robert Gillespie told Newswatch 16 that he could not remember a district magistrate dismissing a homicide charge in the past three decades and that current District Attorney Stefanie Salavantis was within her rights as a prosecutor to have Lee re-charged with the same evidence.
"In this case, it's obvious that this is a war, and the war is going to be fought out. In a preliminary hearing, the prosecutor merely has to show probable cause that a crime was committed, and that it is more probable than not,” said Gillespie. "In order to disqualify that district justice, you've got to show more than that district justice found against you the last time. I think that you have to show that there was some kind of bias.”
Burke’s order did not elaborate on the reasoning behind his decision.