KINGSTON TWP. – Immediately after a district judge dismissed homicide charges against Cody Lee on Friday, state police rearrested the 18-year-old on the same charges.
Lee was handcuffed and shackled in front of his lead defense lawyer, Peter Paul Olszewski Jr., who had orchestrated a vigorous defense in convincing District Judge James Tupper to dismiss the charge after a three-hour preliminary hearing.
I think it is unprecedented that they would act as vindictively to Cody Lee as they did, said Olszewski. Immediately taking him into custody without any new evidence, without any new investigation. It was inappropriate; it's prosecutorial misconduct; it's illegal.
State police allege Lee, then 16, plotted to kill his great-grandfather, Herbert Lee Sr., 80, and his father, Scott Lee.
A few hours after Lee's classes ended at Lake-Lehman High School, where he was a junior on Dec. 9, 2009, he completed half of his alleged murderous plot by shooting Lee Sr. in the head inside their home at 443 Meeker Outlet Road in Lake Township, according to the criminal complaint.
Lee's father wrestled a rifle away from his son, who fled the house wearing only jeans, a T-shirt and socks, authorities said. He spent several hours wandering in the woods and talking to three friends on his cellphone, authorities said, before he was captured by state police as his father picked him up near the house.
During this week's hearing, Trooper Christopher King testified he found a backpack in Lee's bedroom that contained notebooks. Inside one of the notebooks, King said, was handwriting describing the deadly plot and a diagram of the Lee household.
Olszewski objected to an attempt to have the notebook introduced as evidence by assistant district attorneys Shannon Crake and Mamie Phillips.
Before the notebook was found, said King, he was made aware by other students that Lee allegedly had written the plot in a notebook. Crake and Phillips did not present witnesses to authenticate that Lee had indeed written the plot in the notebook.
Olszewski seized the opportunity, reminding Tupper several times that anyone could have written the plot. Crake countered that Lee's name appears throughout the notebook, which was found in Lee's backpack and bedroom.
Olszewski said there was no evidence that the shooting was intentional, noting it could have been an accident.
Investigators claimed Joshua Gleco saw Lee and Herbert Lee wrestling inside the house, and then Lee holding a rifle near his hip. Gleco was not called to testify at the hearing.
After two private meetings with Lee's attorneys and prosecutors, Tupper dismissed the criminal homicide charge. However, seconds later, Lee was rearrested in the courtroom. He sobbed for a short time and was allowed to hug his father before he was taken away.
Crake and Phillips declined comment after the hearing.
Luzerne County District Attorney Stefanie Salavantis declined comment on Friday afternoon when she entered the state police barracks in Wyoming.
Olszewski said prosecutors presented an extremely weak case.
Once again, Luzerne County prosecutors are distinguishing themselves these days in the wrong way, just absolutely unbelievable, Olszewski said about Lee's rearrest, asking rhetorically on what basis it was made.
They have no new evidence, they have no new investigation, he said. This was pure unadulterated vindictiveness that is just horrific. I certainly hope that the district attorney of this county is not going to allow her assistants to permit what happened here today.
Olszewski, along with attorneys Melissa Scartelli and Charles Rado, will continue to defend Lee.
We'll do what needs to be done and, believe me, there will be something done shortly, Olszewski said.
Later, Olszewski unsuccessfully argued before a Luzerne County judge to have Lee released based on an allegedly illegal rearrest. Lee was transported to the state police barracks in Wyoming and then to an arraignment before District Judge William Feissner in Freeland. Feissner was the scheduled overnight duty magistrate on Friday.
Asked by the judge if he had family in the area, Lee responded: I don't know where we are.
Told he was in Luzerne County, Lee said his dad, aunts and uncles live locally. Feissner asked if Lee's entire family was here, and Lee said half of his family was in Tennessee.
Lee's preliminary hearing is scheduled for 9:30 a.m. Thursday before Tupper. Until then, Lee remains at the Luzerne County Correctional Facility.
More than three years have passed between Lee's first arraignment on the homicide charge and Friday, because attorneys' various legal filings – including Olszewski's motion to have the case sent to juvenile court – had to be decided first. A judge ruled in August that Lee should be tried as an adult.
Steve Mocarsky, a Times Leader staff writer, contributed to this story.