Judge denies Kendrick death penalty, jury motions

May 9—SOMERSET, Pa. — Motions seeking to drop the death penalty in Paul Kendrick's homicide case and either bring in an outside jury or move his proceeding to another county were all denied by a county judge.

The rulings were among dozens of denials by court-appointed senior Judge Patrick Kiniry.

Kendrick, 28, is accused of attacking Sgt. Mark Baserman, 60, in a housing unit's day room at SCI-Somerset on Feb. 15, 2018.

Investigators have said Kendrick hit Baserman in the face and kicked him in the head, then attacked another officer before he was apprehended.

Baserman died two weeks later of injuries he sustained in the assault, officials have said.

In recent rulings, Kiniry addressed dozens of motions by both the defense and prosecutors as the case continues heading toward trial.

That included denials to at least 11 motions by defense attorneys seeking to have the death penalty pulled.

Somerset County District Attorney Molly Metzgar said her office appreciated "the Court's and fair rulings on the Kendrick omnibus."

"And (we) are as devoted as ever to seeking justice for Sgt. Baserman with a Somerset County jury."

Kendricks' attorneys Timothy Burns and Kenneth Sottile previous argued the move was "cruel and unusual punishment" and that a death penalty phase — and the lengthy conviction appeals process — were a waste of county tax dollars because current Gov. Josh Shapiro has pledged to veto any executions.

The defense also noted that an Allegheny County judge recent decided against seating a death-qualified jury for that reason — but Kiniry noted the fellow Court of Common Pleas judge's decision is not binding in Somerset County.

"Additionally," Kiniry wrote, "(the Allegheny County decision) is currently being appealed."

Burns reacted to the ruling Wednesday in an interview with The Tribune-Democrat, saying he was disappointed by the death penalty decisions.

"Particularly in light of the fact that it's clear there's not going to be any executions in Pennsylvania any time soon," Burns said, referencing the fact recent governors have rejected executing anyone.

That typically leaves the court system — and taxpayers — to cover costs for decades of appeals regardless, he said.

"That's an issue we'll be raising again — not just during trial — but on appeal afterward (if necessary)," he said.

Burns and fellow court-appointed defense attorneys also previously sought to have the death penalty dropped due to their concerns about the possibility of an alleged "Brady disclosure" violation.

Brady refers to the Supreme Court's Brady vs. Maryland ruling that established prosecutors must turn over all evidence that might exonerate a defendant.

In February, fellow defense attorney Edward Rymsza said the Somerset County District Attorney's Office told the defense that a relative of Baserman's had notified them that Baserman had been investigated over an unspecified accusation and, later, exonerated at some point.

But Rymsza said prosecutors made no attempt to learn anything more about the matter, such as when and why it occurred.

During the same February hearing, Kiniry directed prosecutors to check into the matter and get more answers about the accusation to see if it raises any questions important to the case.

In his April follow-up ruling, Kiniry said the motion has now been "resolved."

Burns also said prosecutors have provided additional information to resolve the matter.

Among other rulings, Kiniry ruled against the change of venue/venir request by citing past case law establishing a defendant is not entitled to those changes unless he or she can show that pretrial publicity resulted in "actual prejudice."

"(Kendrick) is unable to prove that publicity about the present case has been sensational, inflammatory or slanted toward conviction," he wrote, noting that most reports and articles were published four years ago or more.

That "cooling off period" makes it far less likely it will be difficult finding local jurors, Kiniry said.

Kiniry also ruled that just because District Attorney Molly Metzgar's husband, state Rep. Carl Metzgar, made comments about Baserman's death, the argument Somerset County DA's Office should be disqualified from handling the case "had no basis in fact or merit."

The longtime judge did grant defense attorneys' motion to have criminal histories disclosed of any witnesses they may call on the witness stand — and provide those histories to defense counsel.

Prosecutors allege the injuries that caused Baserman's death occurred inside the prison while numerous inmates were in a "day room" for approved leisure time.

That means inmates could be called to testify about what they heard or saw.

Kiniry noted prosecutors have agreed to provide that information — and that if any promises of immunity or "favorable treatment" would be offered to a witness in the future for testimony, that too would be disclosed.

But the judge denied other requests, including a motion to cover up Baserman's name from a plaque at the courthouse entrance, and he rejected the defense's argument to have statements allegedly made by Kendrick blocked from court.

Kiniry also rejected a request that jurors be shown a video on "unconscious bias," which they said can sometimes prevent people from rendering a fair verdict in a case where crimes committed by someone of one race are committed against a person of a different race.

The senior judge noted the trial court, in this case in Somerset County, has the discretion to decide "voir dire" jury instructions.

Kiniry noted that studies presented by both sides showed "contrary" and inconclusive findings as to whether an instructional video would help or confuse jurors and might encourage citizens to uneccessarily second-guess their conclusions.

Within Pennsylvania's courts, there are suggested verbal instructions that can instead be given to jurors to address biases, he added.

Kendrick is currently being housed at SCI-Fayette.

A trial date was not listed for the case on his online docket.

Burns said the case appears on track to go to trial this fall.