Cobra Killer (33 page)

To resolve the issue, Olszewski summoned Lockhart and attorneys for both sides to his chambers and questioned Lockhart about the need for counsel. Olszewski told Lockhart in chambers that his response in court could equate to an admission to criminal conduct and “I think it’s my obligation to, at least, advise you that you may want to consult with an attorney prior to being asked any additional questions.”
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Lockhart was rock-solid in his desire to go forward. “With all due respect, this is something that has been going on for about four, five years now,” Lockhart told the judge. “We went through civil disputes and we went through (a) very heated public battle; and we contacted all kinds of authorities about the matter, and nothing happened. So that’s why today, I am comfortable being able to tell the truth despite being party to what happened.”
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With that, Lockhart declined any counsel and questioning by prosecutors continued.

Cross-examining Lockhart and Roy

Under a withering cross examination, Lockhart and Roy remained steadfast in their telling of the story, including retelling of incriminating statements by Cuadra on Black’s Beach in California.

Defense attorney D’Andrea continually moved questions with Lockhart and Roy toward the nature of the relationship they witnessed between Cuadra and Kerekes, just as he did with most every witness who had met the two. However, only Cuadra’s friend Mitch Halford, was much help on that line of questioning. Halford said he witnessed Cuadra acting like “a puppy” and “a battered spouse” under Kerekes’ influence and that Kerekes exerted unusual control over the younger Cuadra.

D’Andrea also tried to make headway with witnesses about the depth of anger that existed between Lockhart and Roy against Kocis, and raise questions about whether e-mails purporting to be from Cuadra were actually written by Kerekes.

When Roy was under cross-examination, D’Andrea engaged a provocative line of questioning meant to impeach Roy by highlighting his role as a pornography producer, and emphasizing the age difference between himself and Lockhart.

D’Andrea elicited from Roy that he was thirty eight years old when he began his sexual relationship with Lockhart, twenty years his junior at age eighteen. Emphasizing the age difference, D’Andrea remarked, “And you saw an opportunity to take this teenager and exploit him and sell him like a piece of meat, didn’t you?”
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Roy denied that description and said the two men started their relationship in a purely platonic manner, with Roy offering Lockhart a room to rent. He said it was not until later that the two men fell in love with each other and started an intimate relationship.

D’Andrea took issue with that as well, asking, “You indicated…that you had an exclusive relationship with Sean (Lockhart), right? I guess that doesn’t count all the men that were having sex with him in your films…How does one love somebody and allow them to have sex with multiple people?”
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Melnick had reached his limit and objected to the relevancy of D’Andrea’s line of inquiry. D’Andrea immediately withdrew the pointed questions, but had succeeded in placing them before jurors nonetheless.

During the exchange, Roy became visibly irritated and defended gay porn as “art” and said that his reasons for producing porn were “to do something positive and creative and give these boys an avenue other than just being exploited by, like, a lot of the industry does.”
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D’Andrea pounced and said, “So, as a gay pornographer, you’re making it out to this jury that you’re like a savior, you save young boys to give them a great opportunity while you line your pockets with money, right?”
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Roy disagreed with that characterization but D’Andrea pushed on: “Well, tell the jury how you’re helping these young boys (by) engaging them in sex. Tell that to the jury.”
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Surprisingly, Roy took the bait and attempted to explain that his films provided young men “an opportunity” and that his productions offered the actors a chance “to come together, interact in a normal setting; like take them to dinner, showing them San Diego…we more or less try to make it a working vacation for them, an experience they couldn’t get anywhere else.”
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Roy then took the unusual step of comparing work in gay porn videos as “an all-around experience” that some of his actors had claimed was “even better than Disney World.”
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D’Andrea wasn’t done. He later succeeded in getting Roy to admit that the people he hired for porn videos were actually “sex workers” and mocked his profession as “works of charity.”
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D’Andrea then walked Roy through the lengthy battle with Kocis, including his admission that he started the “Cobra Killer” blog. D’Andrea also attempted to get Roy to admit he had engaged a conversation at one point in 2006 about hiring a “cleaner” to get rid of Kocis. Roy denied he ever suggested such a thing, instead saying a model made that suggestion to him and said “I laughed, I thought it was ridiculous.”
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Also disclosed under cross examination was the fact that Roy had obtained a proffer letter from the U.S. Attorney for the Southern District of California that indicated they would not attempt to prosecute him on any related charges in exchange for his assistance with the Kocis investigation.

Through more than six hours of questions about intricate details of the wiretap recordings, D’Andrea repeatedly asked Roy to point out instances where it was Cuadra (rather than Kerekes) who was pushing for a video deal.

At one point, Roy had had enough, his overall testimony now covering more than twelve hours over two days. Roy declared, “Joe was the mouthpiece” and then stated, “I don’t really want to go through this whole thing again right now.”
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Roy’s statement drew a warning from the bench, “Well, you’re
going
to go through it.”
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Pinned to the wall by D’Andrea’s insistence that he point out every single instance where Cuadra had interjected or pushed the deal, Roy folded and said, “I will take it back then” and agreed to D’Andrea’s statement that “Harlow wasn’t really interjecting, it was Joe on the financial side and the doing the deal side.”
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D’Andrea didn’t let up, however, still walking Roy through intricate details of almost every page of the transcript. D’Andrea was meticulous in noting repeatedly that the tape (and transcript) never indicated a direct statement by Cuadra that he had killed Kocis or was aware he was going to be killed.

“Read to the jury something in there where it says from Harlow Cuadra, ‘I killed Bryan Kocis’ or ‘I agreed to kill Bryan Kocis with Joe Kerekes’ or ‘I planned to kill Bryan Kocis with Joe Kerekes,’” D’Andrea said, pointing to the transcript once again. “Read at least one of those to the jury and I’ll sit down.”

“It’s not in there,” Roy said.

“That’s right,” D’Andrea replied.
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The uncooperative witness

On March 10, 2009, almost two weeks into the trial, defense attorneys surprised most observers by opening their case by calling Cuadra’s lover and former business partner, Joseph Kerekes to the stand. If they had hoped for Kerekes to help Cuadra’s case, their hopes were dashed almost immediately.

Led into the courtroom in jail garb, including leg shackles, Kerekes who had previously pleaded guilty to a murder charge in the case, said he was not willing to testify. “I’ve been thinking a lot about my parents,” Kerekes said. “I think it will destroy them to say something that I didn’t do.”
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Kerekes said to D’Andrea, “What I told you was not true” and with that, Kerekes was removed from the courtroom. As he left the courthouse, he was uncharacteristically silent, and didn’t respond to reporters’ shouted questions.
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Melnick said Kerekes’ appearance in court as a potential defense witness was one of the more “bizarre” moments of the trial. “We had heard rumblings that attorney Joseph D’Andrea had interviewed Kerekes at the prison,” Melnick said. “Then it became a little more imminent that they were really thinking about calling Kerekes as a witness at trial. I thought it was certainly an interesting legal strategy, but I did not think much of Kerekes as a witness.”
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Melnick said Kerekes’ previous participation in the hearings before Judge Olszewski regarding the potential participation of defense attorney Demetrius Fannick had eroded his credibility. “We thought that his being called as a witness was certainly a kind of a wild maneuver. The defense…called him and Joseph Kerekes took the stand in a spectacular drama and says he’s not going to admit to…something he didn’t do.”
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Unwilling to answer questions, Olszewski quickly dismissed Kerekes from the stand. As he was led from the courtroom, Cuadra’s mother shouted to Kerekes, “You stole my son!”
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Melnick said the turn of events seemed to startle D’Andrea who wore a look the prosecutor described as “What do I do now?” D’Andrea had reason, apparently, to believe that Kerekes could help Cuadra’s case.

“I was ready to go into court and lie for Harlow,” Kerekes said months after the trial concluded. “I had talked to his attorneys and I told them I would go in and back up their story about Harlow being at the house to model and that I burst in during a jealous rage and killed Bryan. But that (story) is not the truth,” Kerekes said. “I’m telling you just as I told my parents this…I told them and I tell you, I did not kill Bryan. I was not (at the murder scene), I was back at the hotel and there is nothing that proves I was there.”
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Kerekes said beyond the fact that he did not directly participate in the actual slaying of Kocis, he remained concerned by suggestions from representatives of the district attorney office that “more than implied” that if he provided testimony that was helpful to Cuadra, it could mean they would have to go forward with a more formal investigation of Joe’s parents. “The DA indicated they may seek some sort of ‘aiding and abetting’ charge against my parents,” Kerekes said. “I couldn’t put my parents through anymore and they hadn’t done anything wrong.”
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Harlow on His Own Behalf

“The right to testify (for one’s self) is a mixed blessing.”

—Dr. Sherry F. Colb,
Cornell University School of Law

Defense witness: Harlow Cuadra

Their plan to get Joseph Kerekes to pull blame for Kocis’ slaying toward himself now out of play, D’Andrea and Walker took the unusual step of calling their next witness: the defendant, Harlow Cuadra.   

Putting Cuadra on the stand was a risk. Without him and without Kerekes’ testimony, it’s unclear what direction the defense could have taken. They had failed in efforts to keep the undercover tapes and transcripts out of evidence. They had even failed to shield jurors from seeing some of the autopsy and death scene photos that they believed were inflammatory.

There were few options left.

Regardless, most criminal defense and prosecuting attorneys agree, defendants testifying on their own behalf is a risky prospect. If the defendant is sympathetic and credible, they may help their case. More times than not, however, they don’t do well under cross-examination and find their stories being picked apart bit by bit.

Defendants also face the problem that a mountain of circumstantial evidence against them creates: which part of that mountain do you go after first and do you risk confusing or losing the jury’s interest if you try to take apart the mountain, rock by rock, pebble by pebble?

Interestingly, criminal defendants were considered “incompetent” to testify at their own trials under the Common Law of England and then the United States until the nineteenth century, according to Cornell University law professor and former U.S. Supreme Court clerk Sherry F. Colb. In the nineteenth century, defendant incompetency “gave way to the notion that the basis for disqualification the defendant’s ‘interest’ in the outcome of the trial and could instead form the basis for witness impeachment following testimony.”
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Since that time, however, defendants were allowed (and later guaranteed) a right to testify under oath on their own behalf. These rights are granted, the high court has ruled, in the Fourteenth Amendment to the U.S. Constitution.

“The right to testify is a mixed blessing, however,” Colb says. “With the right comes an expectation on the part of the jury that it will hear from the defendant. Despite the defendant’s right
not
to take the stand (and the judge’s available instruction telling the jury not to draw negative inferences against the defendant for the exercise of this right), jurors nonetheless know that a defendant
could
testify if she wanted to, and this knowledge inevitably makes the jury wonder why the defendant has chosen not to take the stand.”
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Mixed blessing or not, Cuadra was called to testify under direct examination before the jury by Walker. Cuadra told jurors, deep into his own testimony, why he thought it was important to testify: “I take the stand and what is said here is the only thing that matters. That is evidence. Not what (Mr. Melnick) says, only what is said here on the stand.”
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Walker led Cuadra through the perfunctory data about his early life and family, including quickly introducing the financial and personal struggles Cuadra’s mother Gladis faced in raising her four children on her own. “It was just my mother caring for us, and she did her best,” Cuadra said. “She was a working mother.”
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