Last updated: February 20. 2013 2:19AM - 859 Views

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WILKES-BARRE -- The Luzerne County District Attorney's Office has filed a motion seeking to have the second preliminary hearing for homicide suspect Cody Lee transferred to a district judge other than James Tupper.

The motion claims Tupper erred when he ruled prosecutors had not presented sufficient evidence to bind Lee, 19, of Lake Township, over to court for trial on charges he fatally shot his great-grandfather, Herbert Lee, on Dec. 9, 2009.

Tupper on Friday dismissed the homicide charge after a hearing that lasted several hours. Police then immediately rearrested Lee on the same charge.

In the motion, Assistant District Attorney Mamie Phillips said prosecutors were not obligated to produce all evidence they have, and that the evidence they did present was more than sufficient at this stage of the criminal proceeding.

By law, prosecutors at a preliminary hearing must show only that a crime was committed, and that the accused probably committed that crime.

The purpose of a preliminary hearing is to avoid incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Its purpose is not to prove defendant's guilt, Phillips said.

The evidence presented at the preliminary hearing included a notebook, found in Lee's bedroom, which had his name on it, that outlined his plan to kill his great-grandfather, as well as testimony of three of Lee's friends, who said he admitted the murder to them.

The law allows prosecutors to petition the court to have a temporary district judge, or a county court judge, assigned to hear a preliminary hearing. Prosecutors contend that should be done in this case in the interest of justice.

The Commonwealth respectfully submits that the honorable District Justice erred in dismissing the charges ... (and) would likely make the same finding if he presided over the preliminary hearing on the refilled charges, Phillips said.

Lee's attorney, Peter Paul Olszewski Jr., said he believes Tupper's decision was imminently fair and based on the evidence of law.

The evidence is the same no matter what judge they go before, he said.

President Judge Thomas Burke will now review the motion and issue a ruling at a later date.

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