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Westmoreland

Westmoreland DA will take future murder cases before district judge who has rejected 3

Rich Cholodofsky
| Wednesday, Sept. 13, 2017, 5:06 p.m.
District Attorney John Peck's office was accused of 'bullying' judges.
Evan Sanders | Trib Total Media
District Attorney John Peck's office was accused of 'bullying' judges.
District Attorney John Peck briefs the media on Dec. 1, 2016 about the slaying of Dana Remaley, 46, and her son Caleb, a third-grader at Stanwood Elementary. Jacob Roland Remaley is charged as an adult in the slaying.
Sean Stipp | Tribune-Review
District Attorney John Peck briefs the media on Dec. 1, 2016 about the slaying of Dana Remaley, 46, and her son Caleb, a third-grader at Stanwood Elementary. Jacob Roland Remaley is charged as an adult in the slaying.

Westmoreland County District Attorney John Peck said Wednesday he will continue to take murder cases before the Latrobe district judge who refused to sign off on three of them and accused prosecutors of “bullying” judges.

And President Judge Richard E. McCormick Jr. said he doesn't plan to issue a blanket order to have District Judge Michael Mahady of Latrobe removed from overseeing future prosecutions brought by Peck's office.

“It'll be decided on a case-by-case basis,” McCormick said Wednesday.

Following a court hearing last week, McCormick removed Mahady from presiding over the preliminary hearing of a Latrobe teen charged with fatally shooting a friend. Mahady initially refused to sign a complaint that charged 17-year-old Andrew Braddy with a general count of criminal homicide. McCormick ruled in the hearing that Mahady could not fairly preside over the case.

His ruling was based in part on evidence from Detective Ray Dupilka, who testified that Mahady told prosecutors he would not be bullied by the district attorney's office to accept criminal homicide charges against Braddy, McCormick said.

Mahady's refusal to accept the complaint against Braddy prompted prosecutors to wait several hours and file the criminal charges with District Judge Joseph DeMarchis of Jeannette, the on-duty night court magistrate. DeMarchis will preside over Braddy's preliminary hearing on Monday.

“He (Braddy) was already in custody. We had to do something. This was the first time he ever refused a complaint,” Peck said of Mahady.

Mahady did not return repeated calls for comment this week.

Deputy Court Administrator Don Heagy said district judges are required to verify that criminal complaints are complete and that a basis exists for an arrest before a defendant is arraigned and formally charged.

The Latrobe homicide case marks the fourth time in three years that Mahady has been removed from a case filed by county prosecutors. In two of those cases, Mahady dismissed murder charges following preliminary hearings. Peck was allowed to refile those charges before other magistrates.

In the Braddy case, according to testimony at last week's hearing, Mahady maintained that prosecutors had to charge the teen with a specific count of murder: first-, second- or third-degree or voluntary or involuntary manslaughter.

That legal issue has been litigated and state appeals courts have ruled that a general homicide count is an appropriate charge, Peck said. In making the ruling removing Mahady, McCormick said he agreed that criminal homicide is a charge that prosecutors can file.

Unusual events

Neither Peck, McCormick nor court officials could recall instances where any other magistrate was removed from a case over an issue of fairness.

Legal experts said the ousting of a district judge from a pending murder case is unusual but within the bounds of the law.

“I think it is not usual, but it is not improper,” said Gary Caruso, a retired president judge in the county.

Caruso, who spent 28 years on the county court, said that during his tenure he was asked several times to reassign a magistrate from a pending criminal case, but none of those instances involved allegations of improper behavior by a judge.

State court rules allow for prosecutors to seek the ouster of judges in certain cases for cause, such as a conflict of interest or a claim of potential bias, St. Vincent College law professor Bruce Antkowiak said.

“You don't see it happen that often, but the rules anticipate it. It is not supposed to be done just when there is a possibility that the judge will disagree. That's not a good enough reason,” Antkowiak said.

Art Heinz, spokesman for the Administrative Office of Pennsylvania Courts, confirmed that local president judges have supervisory authority over all judicial and case assignments.

“Cases can be reassigned based on needs,” Heinz said.

Judge to stick around

Mahady, who turns 70 this year, was set to retire at the end of 2017. A voter-approved amendment to the state constitution last year extended the mandatory retirement for judges to age 75. Mahady has said he will continue to work and is expected to serve until the completion of his current term in 2021.

A county plan to consolidate district judge positions called for Mahady's office to be eliminated next year, but that plan was scrapped after Mahady said he would not retire.

Antkowiak, who prior to his teaching career served as a federal prosecutor and worked as a private lawyer in Westmoreland, said he believed the issue between Peck and Mahady is nothing more than a legal disagreement.

“We're talking about two people who have been around forever and a day. You're going to have disagreements,” he said. “There's too much professionalism there, so there is no real chance this will bubble over and have a lasting effect.”

Rich Cholodofsky is a Tribune-Review staff writer. Reach him at 724-830-6293 or rcholodofsky@tribweb.com or via Twitter at @RichCholodofsky

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