The law enforcement contingent huddled near the front of the idled courtroom Friday, plotting their next move if Magisterial District Judge James E. Tupper were to emerge from his chambers to dismiss the murder charge that had kept a Lake Twp. teenager in juvenile detention for the past three years.
Before leaving the bench, Judge Tupper asked whether prosecutors had met a fundamental threshold of evidence to show Cody Lee, now 19, knowingly, willfully or recklessly shot and killed his great-grandfather, Herbert Lee.
The prosecutors consulted with their boss, Luzerne County District Attorney Stefanie Salavantis.
"Based on the feeling that this was not going to go our way, we reached the agreement and I made the call to have Cody Lee rearrested and recharged," Ms. Salavantis said Friday night.
Mr. Tupper returned to his Trucksville courtroom shortly thereafter and ruled as the increasingly apprehensive prosecutors expected. State troopers swarmed Mr. Lee as he rose to his feet and turned toward his father. Mr. Lee's attorney, Peter Paul Olszewski Jr., objected.
Mr. Olszewski appealed the arrest Friday afternoon to Luzerne County Judge Joe Sklarosky Jr., and called Mr. Lee's second arrest "illegal," "warrantless."
Judge Sklarosky disagreed, saying prosecutors had "broad powers to rearrest and recharge" defendants.
The charges, Luzerne County Detective Gary Capitano said, were based on a modified version of the probable cause affidavit used to file the original set of charges against Mr. Lee in December 2009.
Mr. Lee was then arraigned before Magisterial District Judge Gerald Feissner in Freeland.
Mr. Lee was sent to the Luzerne County Correctional Facility and scheduled for a preliminary hearing at 9:30 a.m. Thursday before Judge Tupper. Ms. Salavantis said Friday night she would ask President Judge Thomas F. Burke Jr. to remove Judge Tupper from the case.
John Hakim, a Kingston criminal defense attorney not involved with the case, said prosecutors were within their rights to refile the charges because double jeopardy protections only apply once a judge or jury has acquitted a defendant - a different finding than a dismissal of charges.
"It happens frequently," Mr. Hakim said. "There are cases in which the same defendant is arrested multiple times for the same crime. I can't say that I agree with the practice but it is legal."
BILL WELLOCK, staff writer, contributed to this report.
Contact the writer: msisak@citizensvoice.com, @cvmikesisak on Twitter