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Time up again for DA office

Thursday, due to failure to provide speedy trial, local prosecutors see gun suspect’s charges dismissed.

WILKES-BARRE – A Luzerne County judge on Thursday threw out another criminal case after prosecutors failed to bring a gun suspect to trial in time.

The suspect, 27-year-old Demetrius Jordan, was initially brought to trial on a felony weapons charge in September. On Sept. 21, 2006, the jury told Court of Common Pleas Judge Chester Muroski it could not reach a unanimous verdict, leading to Muroski declaring a mistrial.

Prosecutors had 120 days to retry Jordan, but never met that deadline.

It led to Jordan’s attorney asking for the charges to be dismissed, claiming prosecutors violated Jordan’s right to a speedy trial.

Muroski on Thursday agreed, dismissing Jordan’s lone offense, a charge called persons not to possess, use, manufacture, control, sell or transfer firearms. District Attorney David Lupas immediately appealed the ruling.

The gaffe in Jordan’s case was the latest in a series of errors by prosecutors that have recently cost them cases.

They previously lost felony charges against William P. Jenkins Jr. by failing to bring him to trial on time and then missing a deadline in an appeal of the case.

In December, the state Superior Court overturned the conviction of Kurt Keiper, who wrote more than $478,000 in bad checks, because he was not brought to trial in time.

And, on Wednesday, Lupas said Assistant District Attorney Frank Barletta failed to timely file a court document detailing appeal issues in the case of Linnea Holdren, a school teacher accused of allowing her son to take a gun to school. That means prosecutors might be precluded from raising those issues before the appellate court.

In the latest case, Jordan was charged in September 2005 when Wilkes-Barre police Officer Erika Oswald was called to a North Main Street apartment where probation officers were conducting an unannounced inspection of Jordan’s residence.

There, the probation officers found a 9mm sticking out of a piece of luggage.

Jordan said the gun did not belong to him, but he was the only reported resident of the apartment. A background check showed Jordan was previously convicted of a crime that forbade him from carrying a gun, leading to the weapons charge and his September trial.

According to Muroski’s ruling and other court papers:

After the mistrial, prosecutors had until Jan. 19 to retry Jordan.

His case was not put on the court’s criminal trial lists for October or November, and the county does not have a criminal trial list in December.

The case was listed for trial again on Jan. 8. But the trial was postponed and rescheduled for the week of Jan. 15 before a judge other than Muroski because Muroski would be unavailable on Jan. 16 and 17.

Despite that order, Jordan’s case was still listed on Muroski’s trial list that week.

Muroski scheduled the trial for Jan. 18.

It was called for trial that day, but prosecutors told Muroski that Oswald was admitted to the hospital and unavailable for trial. The judge then scheduled the trial for Jan. 22. But Oswald was still unavailable, recovering from an emergency appendectomy performed Jan. 18.

Jordan’s attorney, Joseph Sklarosky Sr., then asked for the charges to be dismissed.

The issue of the request was whether prosecutors took sufficient steps in attempting to retry Jordan.

Assistant District Attorney Gene Molino said he did.

But, on Jan. 8, Muroski opted to hear another trial instead of Jordan’s, Molino said in his response to the motion.

The trial, Molino said, was then rescheduled for Jan. 10. He was ready to proceed, but Muroski again postponed it because of an unrelated hearing he had set for Jan. 11.

That postponement caused the trial to be scheduled for Jan. 16, when Muroski was unavailable. But the case ended up with Muroski because the other trial judges had full dockets that week.

That led to the Jan. 18 postponement because of Oswald’s hospitalization, Molino said. Without the arresting officer, Molino could not proceed to trial, he said.

Molino said the delays by the court, along with Oswald’s hospitalization, should not be used against prosecutors.

But Muroski, in his ruling, said Molino could have taken Jordan to trial in October or November.

Also, Muroski’s absence on Jan. 16 and 17 was well-known and can not be used as an excuse by prosecutors, he said. Plus, the judge said, Molino could have used a transcript of Oswald’s testimony from the first trial.

Lupas did not return a call seeking comment Thursday. He had said the past errors are not a reflection of the overall quality of the work his office does.

Jordan’s attorney, Joseph Sklarosky Sr., did not return a call seeking comment Thursday.

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