Ten Years After

So, how’ve you been?

**FEB. 10, 2023 UPDATE:  THE  PRIMARY  SITE  IS  ONCE  AGAIN  FULLY  OPERATIONAL**

Click here to be redirected to WhoMurderedRobertWone dot com

This site more or less went dormant at the conclusion of the civil case proceeding in August, 2011. Among the four of us, a lot has happened since then, some of it good and some we’re afraid very bad. In 2018 our dear friend and colleague Michael Kremin passed away. Last February, we lost Doug Johnson, who was also Craig’s husband.

The proper maintenance and functionality of this site was in their capable hands for many years and Craig, noted fuckup that he is, was left in charge of things after their passings. Big mistake. Real big mistake.

While the WMRW domain is still in limbo [MIRACLE OF MIRACLES – IT’S WORKING AGAIN!!] the posts from the original site hosted on WordPress here, from the 2008 launch up until the eve of the May 2010 criminal trial remain, in mostly complete form. Some of the links to graphics, documents, audio recordings may be gone, yet some key features like the WMRW Shaky Cam miraculously still remain.

Day 1: Wrap

by Doug • 05/17/2010 • 121 Comments

TRIAL TRANSCRIPT HERE

Opening Statements, and Katherine Wone Takes the Stand

So what was learned today?

1. Defense Pushback on Knife.  In their opening statements, all three defense counsels Bernie Grimm, David Schertler and Thomas Connolly addressed the question of the knife, with Schertler insisting – using a very large blow-up image – that the knife found on the scene was in fact the murder weapon AND the missing knife from Dylan Ward’s cutlery set “…was never even in DC.  It was in Seattle Washington.”
2. Fibers.  Bernie Grimm referenced FBI researchers and publications claiming that “…white cotton fibers have little evidentiary value because they are so ubiquitous.”
3. Awkwardness. During Kathy Wone’s time at the stand today, we heard of the somewhat awkward nature of the friendship between Kathy and the Swann Street housemates, and between Robert and housemates Victor Zaborsky and Dylan Ward.
4. W-5. We now know “W-5” is Scott Hixon, a Dupont Circle interior designer and friend of Joe Price.  Or perhaps more than just friends…at least so the prosecution suggested.
5. Overt Acts 2 and 3: the government said that it would be dropping “Overt Acts 2 (that the defendants made up the bed) and 3 (the defendants placed the body on the bed), and modified Act 1, redacting references to manipulating the crime scene.
6. Fastidious. Kirschner went to lengths, and apparently will do so even more, to paint Robert as fastidious.  Why is this important?  Because Robert’s clothes were found tossed about in the guest bedroom, and the towels put out for him for his shower were apparently never touched.  Kirschner said, “He never showered.”

More after the jump.

Beyond these specific points, it’s clear the defense is ready to take full advantage of any and all previously admitted government and law enforcement errors, reinforcing their message that this was a flawed investigation from the beginning.  Said Ward counsel Schertler, the government “…tried to create evidence to fit a preconceived theory…”

Interestingly, all three defense attorneys took pains to paint Robert and all of the Swann Street three as good friends…and that friends simply can’t murder friends.  A close reading of the defendants’ interview statements, and comments today from Kathy Wone, raise some doubt about those claims.

Looking back, in his opening statement Kirschner seemed to hit his strongest stride referencing W-5 and Joe’s statement to him that he pulled the knife from Robert’s chest.  This, after being interviewed for hours that he found the knife lying on Robert’s chest..an inconsistency that Kirschner hopes demonstrates the “vacuum” of truth in statements by the defendants.

While Bernie appeared a bit rattled in his presentation, Thomas Connolly was a model of brevity and simplicity.   In less than 15 minutes he presented Victor Zaborsky as an honest man, “…a son and a father…” who throughout testified honestly that he simply doesn’t know what happened.  “He is crying inconsolably, he is crying inconsolably…” he repeated about Victor on the 911 call, devastated by the sudden and inexplicable murder of his friend.”

At 4:00pm, Robert’s widow Kathy Wone took the stand and was sown in.  Kirschner guided her through the basic biographical questions about her background and how she met her late husband.

She spoke of the times she visited the defendants’ previous home on Capitol Hill, three times, and at Swann, another three times.  For ID purposes she pointed out each of the defendants for the record.

She testified that she had a “general understanding” of the Price-Zaborsky relationship, “a committed long term relationship.”  Her understanding of the Price-Ward relationship?  “A roommate who needed housing.. he needed a place to live.”

She said she knew of Sarah Morgan, as just the tenant, but did not know her well at all.  She characterized Price and Robert as “very good friends,” and that he was friendly with both Zaborsky and Ward, “Robert was friends with his (Price’s) friends.”  She recounted Robert’s 30th birthday party, hosted by the threesome, as having been Price’s idea after she consulted him about a restaurant to hold it in.

Before adjournment, Kathy Wone told Kirschner of the July 24 lunch meeting she had with Price. Robert was supposed to have joined them, but business called him away.  “I felt it took a little effort to find topics of conversation, not because he was quiet, I just remembered some effort had to be made… It was not a deep conversation.”

Court resumes with Kathy again on the stand Tuesday morning at 9:45am.

Day 1: Updates

by Doug • 05/17/2010 • 113 Comments

Motion to Supress Denied –  Opening Statements

Update @ break – 3:25pm

Price counsel Bernie Grimm and Ward counsel David Schertler delivered strong opening statements.  A 15 minute break followed.

Grimm began, “The government’s theory is unequivical, absolutely not supported by any evidence, fantastic…”

Grimm says the government has floated an idea that “someone,’ i.e. Michael Price, could have done it.  “This theory is based on ignorance.  The case is summations and innuendo.”

Of his client Joe Price, he was candid. “He can talk, he’s a know-it-all…  but he’s just an initiator.”

Schertler began with a clear statement.  “The government’s opening statement is based on assumption, speculation and innuendo.  It creates an incredible story.”

Schertler presented an impressive refutation of the government’s theory.  Moving point by point to demonstrate where the government’s evidence falls short.

Among that evidence, is the “missing knife.”  Schertler maintained it was never in DC, it was never missing.  It was in Seattle, Washington.

Schertler also pushed back pretty hard on knife fibers.

Connolly up next and an update to follow at close of business.

Earlier hearing highlights after the jump

Lunch break recap @ 1:45

Court came back into session at 11:35 this morning, with the government offering its opening statements.

“The government will show these three defendants covered-up, orchestrated and misdirected with respect to the homicide of Robert Wone,” AUSA Glenn Kirschner began.

Calling the evidence and crime scene “…interesting, inexplicable, strange circumstances…”, Kirscher alleged the three defendants, bound by a powerful family bond with Joe Price as the leader, counted on the strange crime scene to confuse and obfuscate.  “And in the short term, they seem to have gotten away with it,” he added.

Lasting an hour and twenty minutes (well over the :45 minute statement Judge Leibovitz suggested counsel stick to), Kirschner restated much of what has already been discussed in bits and pieces – attempting to tie it together into a coherent picture of deception and conspiracy.

Even without a jury to address, Kirschner employed the tools of a prosecutor: banging on a photo of the stairs when talking about the intruder’s stealth, wielding a knife from the actual Swann Street butcher block against a photo (not visible to the audience) from Robert’s autopsy, and pulling out the white towel to demonstrate, what he called “…a dog that don’t hunt…” in terms of explaining the housemate’s actions.

Sarah Morgan will testify, as will EMT Jeff Baker.  Kathy Wone will be the first prosecution witness, and Kirschner promised we would learn interesting things about how Michael Price was behaving at Robert’s funeral.

In all, from the prosecution’s view, it’s a story of “…Joe Price tak(ing) control of the agenda from the moment law enforcement arrives.”  After a push or two to wrap it up, he did so, and court adjourned at 12:55 for lunch.

Morning break recap@ 10:40am

After a delay of nearly 1/2 hour, Judge Lynn Liebovitz turned first to the outstanding Motion to Supress.

Finding that at no time would a reasonable person have believed they were in custodial care or being a suspect, an further finding that Joe Price’s demeanor was “…confident, at times dismissive…” andWard was “…sophisticated in demeanor…” and  further finding that all defendants knew their rights and that the police had “…made it maybe all too clear that they hadn’t solved the murder…” the Judge denied the motions to suppress.

Day Wone

by Craig • 05/17/2010 • 20 Comments

1384 Days: 3 Years, 9 Months, 15 Days

All that matters from now and through the verdict, is doing right by Robert.

We regret not knowing him while alive, but even in death he remains a role model and inspiration. There is no consolation for the Wone family in bringing Robert back, but it is a testament to his life that he is still bringing people together.

After the jump, coverage plans for the trial and a Hall of Fame nomination.

The trial is expected to last one month.  Opening statements today, then it’s off to the races.  Most weeks, Judge Lynn Leibovitz expects to hold session five days a week.  This Wednesday, May 19, and June 8-11, may be dark days.  The Memorial Day holiday may also see a shortened work week.

We’ll be in room 310 for the duration and expect to publish at least twice daily: morning highlights go up during any breaks then again around 1:00pm.  The afternoon paper will land on porches around 6:30pm.

Datalounge, an anonymous gay gossip site, hosted the first sustained discussion on Robert’s murder.  An especially sharp attorney-contributor from those early raw and raucous threads migrated over here, to our good fortune.   Her support and good humor will always be appreciated; she’ll remain our BeaFF.

And our sincere thanks to Neely Tucker from the hometown paper.  It will take the four of us to cover a trial half as well as him.

Sunday School

by Craig • 05/16/2010 • 7 Comments

A large community of talented and committed individuals, in many cases attorneys, helped keep this effort afloat.  On any given day, the stats show a considerable number of readers hailing from law firms far and wide, from K Street to Main Street and every street in between.  Those lost billable hours will remain our little secret.

Last August, just after the third anniversary of Robert’s murder, we were fortunate to host one particularly sharp legal mind.

On break from a criminal defense conference in DC, Themis joined us for hours of engaging conversation, a tutorial on legal maneuvering, strategy, and tactics, then a walking tour of the Swann Street neighborhood.  

Long interested in the case, Themis brought compassion for Robert and his family along with skills honed from many years providing vigorous defense to the less fortunate, indigents, who find themselves accused in capital cases.  The work of the Lord.

Her words were a self-fulfilling prophecy that evening.  “Close to trial, expect a wave of motions,” she told us.  We hardly knew then what shape they’d take or just how many there would be.

Her tutoring of four legal novices didn’t end there; it continues as we find ourselves less than 24 hours from trial.  Today, Themis offers a course on bench trials, their Constitutional origins and practical advice for attorneys trying them.  After the jump, today’s class begins with the basics:

[NOTE: Themis’ essay was lost along the way. Apologies. But some comments follow. Craig]

The Op-Ed Page

by Craig • 05/15/2010 • 25 Comments

In-House Counsel

Without the friendship and wise guidance provided by a host of regular and committed readers, this project may have foundered long ago. 

Several attorney-contributors have stood out over the last eighteen months, and they have helped guide the discussion and maintain the focus on the larger picture, the trial that is scheduled to start in less than 48 hours. 

While attorneys are often the butt of jokes, here and just about everywhere else, they are the guardians of a sacred process, one which was foreign to us at the start.

The legal world lost the skills and passion of Robert Wone nearly four years ago, but there are many who stand on his shoulders and also stand at the ready to fight the good fight.

Two familiar names, Hoya Loya and Meto, offer their thoughts on the road ahead.  And we offer our thanks for their commitment and support.

“The purpose of our judicial system is to seek justice… And sometimes find it.”  So said a somewhat jaded former public defender at a roast I once attended.  His comment was met with nervous laughter and also some audible gasps.  But it sums up the process pretty well and let’s not forget that a trial is just that, a process.

This trial will help to redress the wrong done to society by Robert’s murder, though a subsequent murder trial would, of course, go further in that regard.

At long last, we are about to embark on a process to determine if Joe Price, Victor Zaborsky and Dylan Ward conspired to obstruct justice and tamper with evidence in the investigation of the death of Robert Wone at their home.

It is the powerful sense that the scales of justice were thrown out of balance by the murder of a wonderful human being that has drawn so many of us, from diverse backgrounds, to this site, even though most of us never knew Robert or anyone else involved. 

At the same time, we cannot convict based solely on suspicion or even well-founded speculation.  The government must establish beyond a reasonable doubt that the crime scene discovered by the first responders was altered by the defendants and that the defendants have continued to deceive the police and avoid telling all they know.  The defense will try to shed doubt on the evidence of conspiracy, but that doubt must be reasonable — a qualification too often forgotten. 

Maybe the stunning shift to a bench trial means there could still be a major disclosure, a plea, maybe even a confession. The three defendants may be found guilty of conspiracy, or not.  Or perhaps only two of the three.  Whatever happens, the system will have worked so long as the government puts on the strongest case it can under the circumstances and the defendants receive a zealous defense.

After observing Judge Leibovitz these past few months, I don’t know how anyone on either side can doubt that she will extremely fair and intelligent in her conduct of the trial.  We may not be pleased with the result, but it will have been reached through the necessary process.

There will be justice of some sort in that the most likely suspects will have been tried.  They will, at very least, have faced consequences for the questionable, sometimes puzzling choices they made in the subsequent investigation, regardless of the verdict.  But even a conviction will not be the end of the line for this case.  You can bet that each and every motion in limine that was denied and every adverse ruling from the bench during trial will provide fodder for appeals.  And if they are completely innocent and convicted, then the appeals process will help serve justice as well.

Also, let’s not forget that Kathy Wone is waiting in the wings with her civil case and its much lower standard of proof — preponderance of the evidence.  If the defendants are convicted of conspiracy, they will almost certainly lose in civil court. 

But if they are acquitted?  I don’t generally like the idea of using civil or sometimes federal court to redress perceived miscarriages of justice in criminal cases (as with the Rodney King case or O.J.).  It reeks too much of a second bite at the apple — “Well, NOW we’ll get ’em!”   But this case is different as it was brought in advance of the criminal trial, seeks specifically to redress the wrong done to Kathy by Robert’s murder and to get at truths that may not come out in a conspiracy trial. Perhaps it might even have a better chance of pinpointing the killer and leading to murder charges than the criminal case.

In the end we should be prepared to accept any result.  We must not lose sight of the fact that Robert was a fine lawyer who would have understood the ins and outs of the system and would have trusted in the legal process to find justice.  Let’s give it a chance.

-Hoya Loya

“Some Justice” – I Claudius (1976), Episode VI

As I write this, please consider three caveats: (1) I never thought the trial would actually begin mid-May 2010 and that the defendants were looking for legitimate reasons to delay this trial; (2) I was certainly initially surprised by the decision to forego a jury trial; and (3) while I have tried criminal cases to a verdict, I am really a civil litigator.  Having said that, the joint decision first by the defendants and by agreement the prosecution means that each was uncomfortable with a jury. 

Having consulted with some of my criminal defense colleagues, the defendants’ decision is not surprising.  Many defense lawyers would rather not have jury trials, but feel that they must request them.  Their decision likely is based upon a desire to avoid risk that salacious issues would work against them and that the “beyond reasonable doubt” standard will work in their favor with the Judge.   For those who wondered whether the defendants’ decision might be based upon money, I say “not.”  

Defense counsel are fine ethical attorneys who must provide representation to their clients under these circumstances based upon what is best for the defendants – not money.  Many of us have and will in the future continue handling a case long after we stop being paid.  I have every reason to believe that for all our comments about The Four Horsemen, they are fine attorneys representing the highest ethics of our profession.   Even if as posited by some that the money spigot has been turned off, I do not believe that that has factored into this long thought out decision.

As to the prosecution, they have the burdens of the less than ideal (to be nice) investigation by the MPD and others.   With Judge Leibowitz they have someone who knows that these problems don’t mean that defendants are not guilty.

 But for all that and while many of us on this site have our firm opinions and have a desired outcome, the fact that there is a trial at all even on these lesser charges is a victory for the system.  And whichever way the case goes and will that has gone before and while many are dissatisfied that this is not a murder trial, this trial for conspiracy in and of itself represents “Some Justice.” 

The verdict after the end of the day will not be based upon jurors, but as the Washington Post reported Friday, will result from the evidence submitted by two well-prepared and excellent legal teams under the watchful eye and hand of a well run trial by one of D.C.’s finest jurists, a tough but fair Judge.    One commenter recently asked whether “we” could accept an acquittal from Judge Leibovitz if that is what happens – that we won’t be able to blame a maverick jury.  My answer is, yes.  I can accept it even if I view the case differently from a verdict. 

 This case is now less of a show because of the lack of a jury.  That is some justice.  It will be shorter simply because the Judge can move the case along without concern for a jury.  Judge Leibowitz will not put up with shenanigans.  That is some justice.  Some experts will never appear.  Some experts will be much briefer. 

The defendants may find it necessary to testify in order to explain themselves to the Judge.  But I digress because predictions are useless.   Also look for the Judge to be very active with all witnesses if the lawyers don’t ask the questions that she wants to hear.  The Post article makes it clear that without a jury she will not shy away from seeking justice herself.   Unlike a jury she can and likely will ask her own questions – sharp, perceptive and direct.  Witnesses will have to prepared for a very different environment. 

Notwithstanding our hunger for prompt information and notwithstanding the fact that we will now get great coverage from the Editors and all those that the Editors have caused to cover this case (4 articles in this week’s Post), this is not a show.  It is a trial to provide some justice for Robert.  It is a trial of three men who guilty or innocent deserve the best that our system can provide.  Real lives and a very real death of a fine young man and attorney will be the focus of this case. 

All of us on this site seek the same thing.  At the end, may Robert receive justice.  Some justice.

-Meto

The Autopsy

by Doug • 05/14/2010 • 189 Comments

Dr. Goslinoski’s Report – And an Opposing View

It all really started here nearly four years ago, with a murder. Then an autopsy was performed to help solve that murder.

And here we are now, 72 hours from the start of the trial that may answer some of the enduring questions about the murder which took the life of an amazing and promising man.

As we draw closer, there seem fewer and fewer words to say, but there remains one last piece of unfinished business.

Consistent with our original goals, offering this document may be an appropriate and sober way to begin the next phase.

And consistent with our C-SPAN pedigree, we present it with an expert’s contrarian opinion.

Excerpts from the autopsy, the complete document, and the expert’s view…after the jump.

AUSA Glenn Kirschner has already said in several pre-trial hearings that Deputy DC Medical Examiner, Dr. Goslinoski’s testimony will be “…powerful…” and that the autopsy’s findings of the method of Robert’s murder (unusual precision), the absence of evidence (no defensive wounds, no blood on his hands) and the confounding time line will provide a forceful indictment against the defendants.

The defense has already signaled a possible line to refute this “powerful” presentation: Goslinoski is not a board certified Medical Examiner and thus not qualified by DC Court rules to testify as an expert.  Additionally, she holds a DO, not an MD degree.  While we take no position on the qualifications of these different medical practices, it’s not beyond belief to think others may disagree.

The autopsy was conducted August 3rd, 2006 in the presence of the MPD’s Det. Gail Russell-Brown from the Violent Crimes Branch and Officers Chuck Egan and Brenda Floyd of the Mobile Crime Lab Unit.

“The body is that of a well-developed, well-nourished adult Asian male that measures 5′ 31/2″ in height, weighs 152 pounds, and appears compatible with the state age of 32 years,” it begins with clinical precision.  Rigor is present and difficult to release and livor is present in the posterior and not fixed – suggesting Robert was lying on his back for a limited period of time.  Sexual assault kit #000418 was used to obtain possible evidence.  In other matters, except the three stab wounds, Robert externally appeared to be in good health with no abnormalities.

There was ample evidence of efforts to resuscitate Robert:

“An endotrachial tube is in place.  Vascular access is established with a left subclavian central line and a right femoral central line, (both with large bore catheters).  Additional needle puncture marks are noted at the left side of the neck, at the left antecubital fossa, on the back of the left hand and on the front of the right ankle.  Needle puncture marks are also present at the central lower chest region consistent with pericardial centesis or a direct injection into the heart.”

This, with the chest tubes found, are consistent with early efforts to resuscitate Robert…the prosecution will argue on scene; the defense may argue otherwise.

“Three stab wounds described below are numbered solely for the purpose of organization of this report, and not to imply any knowledge of the actual order in which these wounds were inflicted.  Paths of stab wounds are defined by consecutive slit-like perforations of adjacent tissues associated with acute hemorrhage.”

Two wounds are in the medial (vertical midline) plane; one is to the right.  All three are “…oriented at the 10 o’clock to 4 o’clock axis…” according to the report.  In each wound the 4 o’clock (or medial) end is “…squared off, or blunt…” while the 10 o’clock (or lateral) end is “…pointed or sharp,” and the direction for all three wounds is noted to be “…front to back, right to left and slightly downward.”

Wound 1 perforates the front of the pericarial sac and penetrates the aortic root – with noted blood accumulation in the pericaridal sac with additional damage to the mediastinum.  Wound 2 pierces the 4th intercostal space and penetrates the middle and lower lobes of the right lung.  Wound 3 perforates the small intestine (“…at the 1st part of the  duodenum”), the pancreas and a single perforation of the inferior vena cava.

“Examination of the gastrointestinal tract revealed an accumulation of liquid and congealed blood in the lumen of the small intestine.  Hemorrhagic intestinal contents is contiguous from the site of the perforations in the 1st part of the duodenum, throughout the rest of the duodenum, and then approximately 24-25” into the jejunum. “

The internal examination yields few surprises.  Serosanguinous – blood or blood-related – fluids are found in various tissues and the external chest tubes, totaling approx. 1250 ml.  Of that, approx. 200 ml of blood was found in the pericardial sac, which had no other defects.  Other than the aforementioned perforations to the lung and G.I. tract, Robert Wone appeared to be in normal or good health in his gastrointestinal, genitourinary, heolymphatic, musculoskeletal, endocrine and CNS systems.

“Samples of blood from the heart and femoral veins, vitreous fluid, bile, urine, and gastric contests were collected at autopsy and submitted for toxicologic analyses.”

If only those samples had not been disposed.

The report was submitted August 18, 2006.

We reached out to a forensics professional who offered their opinion on Dr. Goslinoski’s report.  This person, who wishes to remain anonymous, has advanced degrees and experience in crime scene reconstruction, toxicology, and other forensic sciences, has worked with major U.S. city police departments, and is a court-qualified expert.  They are the opinions of this writer alone.

“The autopsy reveals that the heart, coronary artery and the inferior vena cava were perforated by stab wounds.  The coronary artery and vena cava are major blood vessels.

“Perforation of either one can (and almost always does) lead to death in minutes – four to seven minutes tops, not 30 minutes.  In other words, Wone was not alive for a “significant” period of time after his wounds were inflicted.  Death would not be immediate, but it would probably take less than five minutes.

“What is described as the third stab wound perforates the small intestine, the pancreas, and the inferior vena cava.  The inferior vena cava is a huge vein, and it would have bled like crazy.  The same stab wound opened up the small intestine right next to it.  Therefore, it’s not shocking that you get blood pumping into the small intestine.  It’s a narrow tube, so filling two feet of it is not hard to do.

“And someone somewhere came up with the idea that having blood in the small intestine means that Wone was alive long enough to be “digesting his own blood.”  That’s simply not true.  “Digestion” implies that blood had somehow entered Wone’s G.I. system at some point earlier in the digestive process (mouth, throat, stomach).

“There were no injuries to those areas of the G.I. system and no indications that Wone had been forced to ingest his own blood – he was apparently completely incapacitated and still had his mouth guard in – so “digesting his own blood” is a pretty silly statement.”

–posted by The Editors

Bench Notes

by Craig • 05/13/2010 • 68 Comments

The Jury is Dismissed – Update: Friday,  11:00pm

Just when you thought you had it all figured out.  Normally we start the day knowing what we’ll post, but yesterday’s turn of events has scrambled our coverage plans as well as the trial itself.  One thing that has not changed, tomorrow we’ll drop a final, major unreleased document in the case.

With the trial kicking off Monday and opening statements scheduled to start at 9:30am, Judge Lynn Leibovitz noted her new special role in the proceedings, and told the attorneys that, “I am well aware that opening statements are not admitted as evidence.”  A knowing laugh of hers followed.

The unexpected pivot by the defense appears bold.  Six months ago they argued to prevent Leibovitz from getting anywhere near this case, now they can’t get any closer to her as twelve people now will not be sitting in between.

One thing is certain in the trial’s outcome now, no hung jury.  There will be a verdict.

What’s left to write after a day like yesterday?  With a series of rolling thoughts, we’ll try after the jump.

Show of hands, whose Spidey-sense is tingling?

Is a deal in the works?

Was an anti-gay jury bias inevitable?  The defense appeared ready to portray the case as a homophobic prosecution run amok.  Was that going to be a tough card to play?

Was this a financial decision?   Did one of the funders shut off the spigot?

Is the defense trying to shift blame to unmentioned media as being the villains in this case?

Whether the defense feels it’s coming from a position of strength or weakness, why would prosecutors raise no objection?

Road Warrior:  The newest member of the wmrw team checks in from the road.  Intern Sean’s inital thoughts:

1.  Defense must really, really be worried jurors will be homophobes or otherwise biased against the lifestyle

2.  Defense must really be confident that they have a strong case on the particulars of the evidence and either don’t want jury confusion or…

3.  Just want to get it done quickly (either because they think they have a strong case and will get acquittal and want it finished up or because they have a weak case and just want to get this whole thing over with).

More to come as the day we of wears on…

Trial Balloon:Regarding the discussion of the case’s media coverage that cropped up during Tuesday’s pre-trial hearing, was the defense floating a trial balloon?  It sure really didn’t fly at Wednesday’s hearing.

And did everyone jumped the gun and wrongly assumed that Bernie Grimm’s criticism of a certain blog being “vicious,” was directed at this one.  Yes, sharp elbows have been thrown in the comments section over the last 18 months, but I’ll welcome a side-by-side comparison of the commenters here vs. other sites any day, in particular those on Gawker, The Post, and ATL.   We’ve long welcomed their coverage and interest in the case and I’ll leave the media criticism to Grimm.

Our comments section remains unmoderated and except for the most offensive of posts, it’s been the very rare occasion any have come down. Yet I flagged this comment for moderation when I saw it this morning on the WRC-TV website. Maybe they’ve taken it down by now.

“Thursday_Next:  They should be honored, not placed on trial.  They did the world a favor by getting rid of a shyster.”

-Craig

Missing Motions:  The defense seems to have filed a motion in limine to limit, or exclude, almost every aspect of the prosecution’s case, notably statements, lack of blood, restraints, experimental evidence, EMT’s observations, burglary, sexual histories and sexual orientation.  Yet, they never filed two motions in limine on crucial aspects — the missing knife and the delayed reporting.

Why didn’t the defense move to exclude evidence about these two key areas?   I would think they would want any information about a missing knife from Dylan Ward’s bedroom be excluded from trial.  I would also think they would want to prevent any discussion that there was delayed reporting because it gets right to the heart of the prosecution’s obstruction case.

I don’t know which way is up or down today.

-David

Family is Family:  Events are moving fast.  Emotions are running hot.  Clarity is sorely needed…as is a little cooling.

This website has unintentionally created something of a community.  Those who come here begin to recognize each other; recognize individual thoughts, ideas, theories, processes and vulnerabilities.  Speaking only for myself, I’ve been heartened and bolstered at moments by your loyalty, time, and efforts.  It’s almost a little like…family.

And, like a family, it can be unintentionally cruel.

I won’t wag my finger in yet another “online civility” plea.  We’re all adults, and all who come here can conduct themselves as they choose.

But as one of the four who house this community, I ask all of us to make an extra step and effort to consider that, like a family, we are different people with different ideas and opinions.  No one needs to agree with anything; I am simply asking that we respect each other because of the deeper ties that keep us together.

–Doug

Charlie Foxtrot X-Ray:  This is from a friend of wmrw, an insider, very helpful early on, who showed us an x-ray of the investigation.  OK, a blurry x-ray.

“Juries are a risk, particularly given the weird facts and setup of this case. 

Judge Leibovitz is a known quantity, generally pro-prosecution but fair and can cut through some of the red herring issues.  I could see going bench in this case because it’s too hard to predict what 12 might think.  A  hung jury was a real possibility here.”

-craig

D.I.Y:  There were a number of posts we were hoping to get up before trial.  We might run out of time. 

One in particular was to look at the scale model of 1509 Swann Street that the government was expected to use in front of the jury.  No reason to think that they won’t use it to visually depict the physical layout of the house with Judge Leibovitz. The model may aide the defense as well.

Using the Washington Post graphic that accompanied the Paul Duggan June 2008 series on the murder, it’s easy to get a grasp on the dimensions and distances in and outside of the house.  Note: We’re uncertain if the WaPo graphic is drawn to scale.

Based on rough measurements, 1509 Swann Street, NW is a 17 foot wide townhouse.  From the front door to the back patio door, where according to the defendants, the intruder entered, the distance is about 50 feet.  It’s approximately 20 feet from the patio door to the wooden fence the intruder supposedly climbed over to gain access to the property.  It’s another 20 feet, more or less, to the lot line on the alley.

This is now a do-it-yourself project.  The breakfast bar is pictured, where we were led to believe Price and Ward chatted with Robert.  Price said he saw an insect on a patio light.  That distance may have been as much as 15 feet.   He said he peered through a glass door, and possible reflections from the interior lighting, into the patio area.  He then went out, according to his statement to look at the “big bug.”

Ward claimed he descended the staircase from the second floor to the first, and saw the patio door latch in the unlocked position.  That distance could be 20 feet as well.  Take a look for yourself, do the math and draw your own conclusions.

Marxist:  A friend reminded me of a great Groucho line today:

“I was married by a judge.  I should have asked for a jury.”

68 comments for “Bench Notes”

FLASH: BENCHED

by Doug • 05/12/2010 • 159 Comments

Defendants Waive Right to Jury Trial  – Update: Wednesday, 5:38pm

It was a thin courtroom that gathered at 3:45pm this afternoon.  No family, no friends; just attorneys and media.

Ward counsel David Schertler rose with the defendant’s request to waive their right to trial by jury; AUSA Glenn Kirschner offered no objection.

Judge Leibovitz began by asking if this decision was “…tied to the article in the paper today…” referring to Keith Alexander’s piece on the front section of the Washington Post’s Metro section.   “No, it’s not,” answered Schertler, referring instead to “…a variety of other factors.”  Factors such as the over-all media coverage and attention, asked the judge?  Schertler paused, and fumfered for a moment until Leibovitz came to his aid.  Paraphrasing here, she asked if it was tied so closely to today’s article that time and robust voir dire couldn’t help?  “It’s based on broader considerations,” he answered.

As only a defendant can request such a waiver, all three defendants rose and were sworn in.  Judge Leibovitz asked nearly the same questions of each of the three in turn…in order, Victor Zaborsky, Dylan Ward and Joe Price.

Were they aware this was their right?  Were they aware of the charges?  Were they aware the judge would become both finder of fact and law?  Did they know they couldn’t reverse this choice?  Were they coerced?  Did they receive satisfactory counsel?  “Absolutely,” volunteered Price in his turn.  Was this related to the ruling on motion to sever?  (“No” they all answered.)  Was this related to media coverage?  No.  And then, had they taken any medication?  (“No.”)  “Including prescription medication?” she asked.  No.  Wine?  Only Joe and Dylan – a glass with last night’s dinner.

Having found all three reached their decisions “…knowingly, intelligently and voluntarily…” and with no outstanding objection, she granted their requests.  More after the jump.

Zaborsky counsel Thomas Connolly was the only one to speak during the process.  “We’ve been discussing this for a year,” he offered.  “The story put into focus some of the issues…it was a factor, but not critical.”   It should also be noted that Judge Leibovitz offered her opinion of the Post piece, saying it was factual and not inflammatory.

So from here, the judge and both sets of counsel agreed that a number of the outstanding motions – to exclude Deedrick and Spaulding, EMT testimony/speculation, and the outstanding ruling on statements – can be dealt with at trial.

At that seemed to be that.  Until Price counsel Bernie Grimm rose to speak, “…reluctantly…” he said.

Grimm reported that on Monday the defense had receive new documents: a new report from the FBI regarding DNA and the bloody knife, and a stack of documents regarding Deedrick and Spaulding’s methodologies.  “Most of this stuff I don’t understand,” he offered, continuing “…I need to know what’s coming.”

“You’re not suggesting they (the prosecution) not give it to you…” queried the bench.  “No…this isn’t a standard homicide case,” he replied, saying as he walked back to the table that at some point he was “…gonna ask for a line in the sand…”

It was all business before a crowd of attorneys and journalists.  Opening statements begin Monday at 9:30.

Flash posted at 4:35pmET:

Judge Lynn Leibovitz has ruled that the trial of United States v. Joe Price, Dylan Ward and Victor Zaborsky will be a bench trial.

Each defendant spoke at the 30 minute procedural hearing.  First Zaborsky, then Ward and finally Price.

The trial will kick off this Monday, May 17 at 930amET.

Leibovitz asked each of the defendants the same questions:

Do you know what this means?

Are you reaching this decision of your own accord?

Do you understand that voir dire would’ve weeded people out? Do you understand you cannot go back on this decision (no recall)?

Have you been threatened or cajoled into making this decision?

She asked each if they had taken any medication in the last 48 hours. No said all three.  Any alcohol?  Zaborsky no, Ward and Price, wine with dinner last night.

Speaking for the government was AUSA Glenn Kirschner.  He did not oppose the move.

BULLETIN: Bench Trial?

by Craig • 05/12/2010 • 53 Comments

Defense forgoing Jury Trial?  3:45pm Hearing TODAY

We hoped to take a day off while jury selection was happening.  It seems like a lot happened already:

This just in from the Washington Post:

Defense in Wone case may pass on a jury trial

Defense attorneys representing the three men charged with conspiracy in the fatal stabbing of Washington attorney Robert Wone asked a D. C. Superior Court judge on Wednesday to delay jury selection in the case because they are considering having the trial heard by the judge instead of a jury.

Attorneys Bernie Grimm and David Schertler told Judge Lynn Leibovitz that they were concerned about picking a jury after the intense media coverage of the case.

Grimm and Schertler, and a team of other lawyers represent Joseph R. Price, 39, Victor J. Zaborsky, 44, and Dylan M. Ward, 39. The three men were arrested in 2008 and charged with conspiracy, obstruction of justice and tampering with evidence after Wone’s body was found in their Dupont Circle townhouse on the night of Aug. 2, 2006.  They each face a maximum of 38 years in prison if convicted.

Prosecutors are convinced that Wone was sexually assaulted and fatally stabbed after he was physically restrained by either a paralyzing drug or devices similar to those used in sadomasochistic sex. Such a device later was found in the house by police and listed in an affidavit filed in court.

After Schertler said it was a “very strong possibility” that they would prefer the bench trial, Leibovitz ordered her courtroom clerk to call the jury office in the courthouse and instructed officials there not to gather a jury pool.

The defense attorneys said they wanted more time to further discuss having a bench trial over a jury trial. Leibovitz is scheduled to hear their request Monday afternoon.

Our thanks to the Post’s Keith Alexander for filing this so quickly. 

The government may object to this move.   Judge Leibovitz MAY rule on this at the conclusion of today’s hearing.    We’ll be on hand this afternoon at Moultrie and will update ASAP.

Speak Truth

by Doug • 05/12/2010 • 6 Comments

Voir Dire and Seating the “Ideal” Jury

Wednesday begins the process of voir dire – roughly meaning ‘speak true’ – in which Judge Lynn Leibovitz and both legal teams will sort through the pool of seventy potentials to seat a jury of 12, with 4 alternates.  (The alternates won’t know who they are, by the way.)

For those who’ve never sat on a jury, the process is fairly simple.  Typically a pool of potential jurors is gathered and a brief questionnaire filled out.  This is the initial screen to eliminate jurors clearly incapable of rendering a fair verdict.  Individual questions from the bench follow – this is where potential jurors are quizzed on their ability to ‘speak and see true’, as it were.

However, Judge Leibovitz this week said there will be no questionnaire, preferring instead brief, direct questions directed to each juror.  She’s pared down the long list of possible questions to three immediate screens:  ability to sit on a two-month felony trial, potential bias against the defendants’ sexual orientation, and amount of coverage jurors have seen or heard about the case.

She’s also refined questions she’ll ask: juror’s gender and age, neighborhood, employment and professional experience.  Defense questions – such as knowledge of certain medical or forensic practices – and prosecution questions will be asked as well.  The judge’s exact working of the sexual orientation question has yet to be put into words.

Leibovitz initially allotted three days to seat a jury.  Yet we know at least part of Friday will be taken up by the last pending motions – among them the challenge to Doug Deedrick and Robert Spaulding’s methodologies.  Opening statements Monday?  Perhaps.

But even if finished by Friday, picking a jury isn’t just a three day job.  Try three months, more like.

The process, as seen from the inside by one who knows, after the jump.While we can’t state this as fact, it’s very likely both sides have already spent considerable resources on jury consultants.   It’s common now for legal teams to spend months researching what sorts of jurors would be most sympathetic to their arguments, running focus groups, testing and refining narratives, and plotting out strategy for striking potential jurors.  All while spending lots of money.

But don’t take our word for it.

“My mind set is that through pre-trial research, we have the ability to understand those certain factors that are going to influence decisions jurors are going to make throughout the trial,” says Dr. Marshall Hennington, founder and CEO of Hennington & Associates, one of the nation’s largest trial and jury consultant practices.  “What we’re trying to do is factor out certain variables that are going to help our case vs. the ones that are going to hurt our case.”

Hennington is not a lawyer; he earned his Ph.D. in clinical psychology and is an experienced psychological counselor, a field he may well have stuck with were it not for his ‘a-ha’ moment.

“I got involved with this right after OJ,” says Hennington.  “Essentially it was a no-brainer, in terms of what jurors were going to support him and the other individuals that were not.  So I predicted what the outcome would be; I told my wife at the time that primarily African-American female jurors would be the best type of jurors for him and Johnny Cochran, and essentially I was right.”

Get the right jury and you can convict a ham sandwich.  Get the wrong one, and guilty people are set free.

But beyond an attorney’s experience and intuition, there’s been no real consensus or evidence that any one particular type of juror will rule one particular type of way.  In the end it seems to be a much more organic (if that’s the term) enterprise, meaning that the jury becomes something more than just its twelve pieces, but almost a decision-making entity unto itself. Which makes seated juries inherently unpredictable.

In high-profile cases it’s likely people’s lives and reputations are at stake – or many millions of dollars.  With so much riding on the decision of twelve peers, neither side is likely to take shortcuts.  Little surprise, then, that sooner or later, a new business would be born.

“When I first started, the field was pretty much wide open,” Hennington says.  “Now you got every person you can imagine trying to get involved with this field because they think it’s easy money.  It isn’t.”

Easy, probably not.  But money…oh, there’s money.  “Business is always good,” he notes of his firm’s practice in New York, Miami and Beverly Hills. Hennington & Associates offers the full gamut of services: community attitude surveys, focus groups, trial simulation, witness research…”the whole bubble” as he terms it.

So what factors determine how a juror will act?  Hennington rattles off the list.  “Attitudes, beliefs, opinions,” he says; “what they’ve put on the questionnaire, what their background and experience is, what they say during voir dire.  Each case is different, each case has its own personality, just like each attorney does.”

Uh-oh.

Each legal team works to isolate its key arguments.  They’re tested to see who they play well with, and who responds negatively.  Refinements are made and a strategy is developed for choosing and striking jurors.  “Now, I’m not gonna share with you what that strategy is,” says Hennington, “or typically what we do in order to effect change.  But that’s what we do.   What we are trying to do is factor out certain variables that are going to help our case vs. the ones that are going to hurt our case.”

Part of that strategy involves strikes.  Each side will have 12 “strikes” – 12 chances to eliminate a potential juror.  The unspoken part likely involves not only striking potential jurors that your side feels may be unsympathetic, but also occasionally striking others who may be too sympathetic to your opponent.  It’s a high-stakes process.

Which brings us to this case.  What variables might be at play for the defense, or the prosecution?  Too difficult to say, Hennington says, given his only passing familiarity with its many complexities.  But…

“…I will say this.  That where there’s smoke, there’s fire, and that if the prosecution can have jurors who are highly suspicious of people’s motives, and also they question authority, and also believe that if these men actually committed this crime, then it’s not too unthinkable to believe they had ulterior motives for doing it…those are the types of juror that would be receptive to the message the prosecutor has to offer.

“For the defense, obviously people that are looking for hard evidence, people that are looking for a bombshell to drop that’s going to break open the case, those are the type of jurors the defendants would be looking for.”

–posted by Doug

Pre-trial hearing Day 2: Wrap-up

by Michael • 05/11/2010 • 20 Comments

Tuesday’s afternoon hearing began with some of Judge Leibovitz’ housekeeping to keep the outstanding motions moving forward as opening statements approach.

At the top of the list: the government’s filings of references to substantiate the expert witnesses David Sargent, as a burglary expert, and Deedrick and Spaulding’s experimental methodology.  The ruling: Sargent will be permitted to testify, Deedrick and Spaulding still pending.

The burglary opened up a lengthy discussion regarding the grand jury testimony of Dylan Ward and Victor Zaborsky in the matter of the October 2006 burglary of 1509 Swann Street by Michael Price and his accomplice. The government wants to include this testimony to demonstrate a “State of Mind” among the defendants; i.e., just as they delayed the reporting of the robbery because it involved a family member, they also wanted to confer with Joe and legal counsel prior to reporting the robbery. 

Thus the same “State of Mind” to not be completely forthcoming in the murder at 1509 Swann because the defendants knew the murderer was a member of their family.  After much argument, Leibovitz ruled the burglary was relevant, assuming appropriate redactions so as not to infringe on Joe Price’s constitutional rights.

The remainder of today’s hearing was dedicated to the jury selection questionnaire.  After the jump, how they approach seating the jury.

Judge Leibovitz demonstrated a “green” (or pragmatic) attitude by stating that there would not be a written questionnaire for prospective jurors to complete.  Besides the volume of paper consumed, Leibovitz puts value in the one-one-one interviews as more effective in revealing any bias.  From her point of view, the three challenges in the jury selection are:

1. the anticipated duration of the trial,
2. the degree of publicity that the case has generated, and
3. bias with regards to the defendants’ sexuality

Defense attorneys Schertler and Grimm jumped on the media coverage and publicity matter zealously. Schertler felt that the publication of the Affidavit in Support of the Arrest of Dylan Ward created bias in the minds of potential jurors. He also characterized media coverage, citing the Washington Post, Washington City Paper, the DC Examiner, and “…many Internet sites, focused on the Robert Wone case…”, as inaccurate and damaging to the character of the defendants.  Not leaving well enough alone, Bernie Grimm chimed in saying that “…if the court were to read this blog...it is vicious…”

Moving Forward:

Jury selection begins Wednesday at 10AM and is expected to continue through Thursday. Friday afternoon will revisit Deedrick’s  and Spaulding’s experiments, the motion to suppress the statements of the EMTs, and other matters.

Trial TidBits:

Today’s hearing included a sometimes defensive and confrontational Dylan Ward on the stand under cross examination by Glenn Kirschner. Ward testified that he did not know where he was to be taken for his polygraph test, and bristled when Kirschner read transcript excerpts from that night that indicated Ward was asked if he knew the FBI Building in DC, and Dylan said he did know the building.

Ward also testified under questioning by Robert Spagnoletti that Officer Diane Durham was the first person from the MPD that he encountered at 1509 Swann. On cross examination Dylan’s voice took on a heated tone when Kirschner asked if he knew Officer Diane Durham’s name on the night of August 2, which he did not.  Kirschner then asked if Dylan was incorporating information and knowledge learned later into his recounting the events of August 2/3, which Dylan begrudgingly acknowledged.

Matlock Moment: Kirschner’s presentation to Ward with signed copies of the waiver of his Miranda rights and the polygraph waiver.

–posted by Michael and Doug

Pre-trial Coverage – Day 2 Morning

by Michael • 05/11/2010 • 28 Comments

All about Miranda

UPDATE 3:45pm Tuesday: Judge Leibovitz denies motions to sever; allows introduction of videotapes and statements as not-as-fact except for very brief excerpts for fact.  More coming.

Statements continued as the issue of the day, and as expected Dylan Ward took the stand this morning, first questioned by Robert Spagnoletti.  The thrust of his questioning centered on Ward’s perception of the “custodial atmosphere” created by the police at 1509 Swann, and later at the Violent Crimes Branch.

As was the case Monday, defense counsel offered the following to substantiate their case: that the housemates were “told” to sit, that Ward was told to leave the bathroom door open, that he was escorted by an MPD officer when he got dressed, that he was transported in a marked police car with a cage divider, that he was questioned and repeatedly left in a locked interview room for hours, and that he was taken to an FBI facility for additional questioning and a polygraph test.

Cross next…after crossing the jump.

Next was a confident Glenn Kirschner, working to rebut Ward’s claims.  Points made included that when Ward used bathroom with the door open he really could not be observed by the officer, that when asked to get a robe for Joe Price (who was on his phone in his underwear and not engaged with the officers) he went up to the third floor unescorted, that he was permitted to use the bathroom at the VCU, offered food and water, and even asked for magazines while waiting.  The kicker:  while at the FBI, Ward signed a Miranda waiver and another for the poly.

Asked by Kirschner, Ward admitted neither he nor the others were frisked, cuffed, or physically coerced into going to VCU.

Appearing calm with Spagnoletti, Ward seemed to grow somewhat defensive and confrontational under Kirschner’s strong cross.

While no more witnesses may come (the defense may call one of the MPD back), no ruling on statements is expected today.  Judge Lynn Leibovitz asked both sides to provide citations for their arguments in advance of her ruling.

The court comes back in session this afternoon.  We’ll be there.

–posted by Michael

Pre-trial Coverage – Day 1 Wrap

by Doug • 05/10/2010 • 38 Comments

Plus – A Surprise Witness Tuesday

The afternoon picked up with continuation of Detective Waid’s testimony on cross by Price defense counsel Bernie Grimm.  Argument proceeded from this morning, with defense trying to establish length of time the defendants were at Violent Crimes Branch, the circumstances of their questioning, and whether they were free to leave; Grimm quickly rested.

On follow-up by Judge Leibovitz, Waid confessed surprise that Price would request to meet in the parking lot; prosecution made the case that Price (and Zaborsky) willingly requested to meet and speak again inside VCB, with defense trying – again – to raise doubt about Price’s willingness to speak.

Spagnoletti on cross of Waid worked to establish standard homicide operating procedure, trying to demonstrate the fuzzy area the defendants were in between voluntarily cooperating and being officially charged.  For purposes of the statements motion, this clearly seems the defense’s focal argument.

More – plus a promised surprise tomorrow – after the jump.

Det. Bryan Kasul was next, and his 20 years on the MPD – 15 years as detective and 10 in homicide – showed.  Of all the day’s witnesses, Kasul appeared not only the most prepared, but the most skilled at how to answer questions  from counsel (meaning: saying as little as possible.)  Cross from Grimm and Spagnoletti followed, with re-direct from Rachel Leiber Carlson in fairly short order.

A side note: as the day wore on, Judge Leibovitz began demonstrating less indulgence of counsel – notably defense.  Despite repeated pleas to not ask for testimony for “…stuff I can read,” counsel continued to push witnesses on matters of timeline of VCB interviews.  Several calls to the bench, a refusal from defense to approach, and a look of impatience from the bench followed.

The day in sum: defense keys to winning this motion are the times the videotapes began to roll, and the “parking lot” conversation with Waid.  The videotape because they hope it will establish at some point the defendants became ‘suspects’ in the MPD’s eyes, without ever being charged or read their rights.  And the “parking lot” conversation because if Joe indeed requested legal counsel and then Waid pursued further discussions, that would very likely represent a violation of Price’s 6th Amendment rights (and perhaps 5th to a degree.)  After all, once someone tells the police they want an attorney, all questioning should immediately cease until that attorney is present.  That said, a defendant is always able to over-ride that and make voluntary statements at their call.

The promised surprise: defense will call one witness tomorrow on this motion.  Dylan Ward.

Book-keeping: Leibovitz hopes to finish statements in this motion in the morning, move to motions in limine (now refined slightly) from defense to exclude burglary and EMT statements, and address matters of jury selection.  Deedrick and Spauling will get pushed to Friday – assuming the government takes Leibovitz’ strong suggestion to provide as much in writing beforehand in preparation.

Oh, and then there’s redactions.

–posted by Doug, Michael, and Sean Hou

38 comments for “Pre-trial Coverage – Day 1 Wrap”

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Hampton’s Memory Loss

by David • 05/10/2010 • 10 Comments

Both the government and defense picked up from where they left off at Wednesday’s motions’ hearing with the biggies still to be decided, including motions to suppress and sever.

The first witnesses were called today, even though the trial has not begun in earnest.  Both teams were on their game today, and, in fact, approached the court as if it where game day.  On several occasions, the court had to remind the government and defense that this was a “Miranda hearing for the purposing of suppression of statements, and their line questioning was best saved for the trial.”

The first witness on the stand was Sergeant Hampton, who was also the first MPD officer to arrive on the scene.  He was in the 16th and U Street area when the call for a robbery and burglary at 15th and Swann Street came through.

After the jump, the biggest blunder of the morning.

When asked by Assistant Attorney Rachel Carlson who was the first person Hampton saw on the scene, he said it was Joe Price.  She then asked the officer to point him out. 

Judge Liebovitz instructed him to get up and point out which individual Joe Price was. Instead of pointing to Price, he pointed to Dylan Ward. Ouch.

After this debacle, the government was able to rehabilitate slightly Hampton’s credibility when he did correctly identify where Joe Price worked.

Defense pointed out the matter that Hampton changed the version of Joe Price’s take after hearing the grunts/scream.  In Hampton’s report he said Price went downstairs first, before going up to find the body.  He later switched this version.  Grimm tried to make it sound like Hampton said he changed his version in the “last two weeks” but Hampton reminded him it was in the conference with the government, which was “like two years ago.”

Acting Supervisor Patrick took the stand, and did say that none of the of the defendants were arrested, handcuffed or restrained in anyway — all important admissions to support that they weren’t in custody.

When asked by Grimm if there was suspicious behavior on the part of the defendants, he paused and said, “they were whispering.”

Patrick also said that when search warrants for the home would be executed Price said, “Anything you need.”

Then Detective Waid took the stand.  He has the bravura of a NFL quarterback, and was totally in command of his memory and recollections of the evening.  He did not waiver when he said that none of the police activities, such as separating the witnesses, and escorting them to their rooms at Swann Street, were in violation of standard operating procedures.

After a short break the hearing will resume.

Fall Guys

by Craig • 05/09/2010 • 70 Comments

Take the defendants at their word; an unknown person came into their house with the express purpose of murdering Robert.

The killer must have had one of only two possible careers, violent home invasion burglar or assassin.  Sure the ninja has been mocked and derided as implausible, but so too, has the defendants’ intruder theory, at least according to their own statements.  So for the sake of argument, keep the hit man in the equation.

Either would follow the same path: jump the fence and jackpot, an unlocked door.

A ready knife is just inside the door and grabbed for later use.  With utmost stealth, scope out the house, go upstairs, head to the guestroom and stab a sleeping man.  Hightail it out just in the nick of time.

Ninja, Intruder; both follow identical steps: slip in, kill, slip out.  Remarkable silence.  Follow along, after the jump.

Another unexplained silence, the defendants’ failure to speak publicly about the murder, has always stood out to case watchers who look beyond the trial evidence.  This is one of the case’s many intangibles that, for many, never made ‘reasonable person’ sense.  Now maybe, it’s starting to.  Just follow the Ninja.

Let’s run through these two killers’ motives for the murder.

Ninja:  Because of Robert’s classified work at Radio Free Asia, he was targeted by nefarious interests: i.e., Chinese agents or some other black bag outfit.  The surveillance is good, they know his every step including Robert’s planned overnight at Swann Street.  Professional hit, in and out with no trace.

Such a skilled assassin could’ve killed Robert in any number of more public places, an empty suburban Virginia Metro platform, or a near-deserted M Street late one night.  Too high risk perhaps.  Why not an unexpected location, away from his home and having three possible dupes to pin the crime on?

Even the dumbest of dupes knows when they’re being set up to take a fall.  And what does every dupe, even the smart ones say?  “We was framed.”

Intruder:  At Wednesday’s motions hearing, Dylan Ward counsel David Schertler characterized the crime not as a run-of-the-mill breaking and entering job, this was a home invasion that went extremely violent. A random act of city savagery that saw the assailant catch every break and to this day, remain at large.

Again, take the defendants at there word, that they were the target of a home invasion that ended in murder.  And because of the intruder’s luck and guile, the housemates immediately fell under the intense glare of the investigative spotlight.  Though not by design, publicly, although not legally, they were in effect framed for the murder.

Either way, intruder or ninja, they were set up.  The three must have known or felt they were suspected of the murder, framed directly or indirectly.  If they didn’t sense this then their attorneys should have.

In addition to fighting the good legal fight, the attorneys – if they truly believed in their clients’ innocence – would’ve counseled them to speak publicly and candidly to lessen the glare. There is poor legal advice and then there’s bad communications counsel.  The Swann Street legal team may have offered the latter if they counseled silence.  They muzzled their clients without regard to practical realities.

Likewise with the defendant’s supporters.   Because if Joe, Dylan and Victor were framed, then they need voices behind them, too.

However you look at it, silence has not been a friend for the Swann Street defendants, three possible fall guys.

What A Dump!

by Craig • 05/08/2010 • 10 Comments

Beyond The Forest of Legal Documents

We’re fighting clutter here; no easy feat.

A week out from opening statements is as good a time as any for another document dump.  

These have been laying around a while and we’ve done our level best to mine them for nuggets, never quite knowing for certain where a headline may turn up.   Xylene anyone?

There is purpose to these filings no doubt: to lay the groundwork for appeal, to send the opposition on wild goose chases and throw some head fakes.  And for the defense, maybe to rack up some billable hours?  If so, these guys are going for the record.

Just yesterday, notice of three more government filings hit the Superior Court database:

05/07/2010 Notice of Filing: Attorney: MACHEN, Mr RONALD
05/05/2010 Notice of Filing: Attorney: MACHEN, Mr RONALD
05/05/2010 Notice of Filing: Attorney: MACHEN, Mr RONALD

In addition to coverage of Monday’s upcoming motions hearing, we’ll try and pull these latest docs.  What’s a little more paper scattered around the house?

After the jump, the dump; the filings and an extra bonus: the wmrw Tea Time Movie Matinee.

The accumulation from the last week or so.  There may be some dupes but in the interest of a thorough dump, we’re posting whatever is laying around:

Motion and Order – Leave DW, VZ Grand Jury   2Apr2010

Govt Discovery – Restraints  05Apr2010

Def In Limine Exclude Knife-Fiber Expert 09Apr2010

Govt Omnibus Oppo to Def in limine Motions  16 Apr2010

Cozen letter – MPD Notes  19Apr2010

Def Reply support in limine – Sex Assault  19Apr2010

Def Jt Res to Govt notice to use Statements  23Apr2010

Govt Oppo D Jt in limine Experiment Evid Testimony 23Apr2010

Grimm letter to Govt – Restraint  30Apr2010

Def Reply Support D Jt Motion Experts, Exclude Spaulding 3May2010

Def Jt Resp to G’s Omni Oppo-D Experts, D Frye Oppo 3May2010

Get The Red Out

by Craig • 05/07/2010 • 47 Comments

Despite The Judge’s Ruling, The Blood Stays In

Left on the table for next week’s pre-trial hearings are Judge Lynn Leibovitz’ rulings on several matters: Doug Deedrick’s stab wound and fiber experiments, Robert Spaulding’s testing methodology, statements and in turn the motions to sever and suppress, and specific testimony of the EMT and certain MPD officers.

That’s a lot of ground to cover.  Argument on this unfinished business is expected to be completed by Tuesday so the three days of jury selection can begin Wednesday.

The defense racked up a number of wins on Monday.  Tossed out was any “inflammatory” testimony on specific sexual acts, any talk of physical or chemical restraints, and a couple minor elements – The New Yorker magazine found on defendant Dylan Ward’s floor and some titles from his bookshelf.

But it was one key ruling, a gift to the the defense, that stood out yesterday.

The alleged lack of blood found at the scene is considered to be a rather damaging point to the defense and Leibovitz ruled in their favor.  The government’s forensic expert, former MPD crime scene tech Mary Walsh won’t be allowed to testify that more blood should have been found at the crime scene.

A big win for Price, Ward, and Zaborsky?   Well, not so fast.

Mary Walsh was singled out by the government to testify on the amount of blood expected at the scene as her colleagues, David Sergeant and Joseph Anderson, were jettisoned perhaps in hopes of slimming down the jumbo list of expert witnesses.

Whether one expert or three, Leibovitz wasn’t having any of it.  She believed that this testimony was better suited for those techs and cops who were actually on the scene.

So where does that leave the government?  Maybe in a good spot.  AUSA Glenn Kirschner said he may call up to nearly two dozen DC EMTs and police officers.  Of those, it may be a safe bet that a majority of them have seen their share of bloody crime scenes and also had the opportunity to see 1509 Swann immediately after the murder.

These officials will testify without having to rely on any testing, methodology or sophisticated science.  They will speak directly to what they saw at the scene, and in the guestroom in particular, with their own two eyes.   Make that twenty sets of eyes, which could end up being powerful and visceral testimony and evidence.

And if the government follows through on Leibovitz’ suggestion that they prepare evidence binders for the jury, it’s entirely possible that crime scene photos will be included among the exhibits.  While the defense continues to fight on the inclusion of some of the first responder testimony on their ‘opinions,’ first-hand recollections of the scene and the apparent lack of blood found may be harder to rub out.

As to those binders: among the mountains of papers on the government’s desk on Monday, there was one binder that from a distance, appeared to be loaded with photographs.  Maybe this is what gets sent to the copy shop so jurors have them on their laps.

-posted by Craig

Logistics

by Craig • 05/06/2010 • 23 Comments

The Trial Takes Shape

Other than getting Judge Lynn Leibovitz’ rulings on experts and evidence from yesterday’s motions hearing, we got a clearer picture from her, the government and the defense team on what the trial’s structure will look like.

Despite the “winnowing”, when it comes to this trial’s length it’s time to stop thinking in terms of weeks, but rather months.

Judge Leibovitz marched through her plans and vision while also getting the expectations from AUSA Glenn Kirschner and the defense counsel.

Kirschner told Leibovitz his case in chief could take four to six weeks, her response was plain: “Are you kidding me?”   Dylan Ward counsel, David Schertler chimed in for the defense – three to four weeks.  Leibovitz said hoped that these morning line guesses were “overestimates on both sides of the table.”

After the jump, the Wone trial by the numbers.

Remaining business to be worked out next week includes the pending motions; primarily use of defendant statements from the night of the murder and the Ward & Zaborsky grand jury testimony from the burglary.  I’ll leave it to the smarter guys here to explain the impact these sets of statements have on the larger motions to sever and suppress.

Jury selection is now scheduled to begin on Wednesday, May 12 and is expected to last three days.  Opening statements are planned for Monday the 17th.  Of course, depending how things go, that could push a day or so.

For jury selection, Judge Leibovitz shared her plans on the process.  Voir dire may be conducted in the jury room behind Leibovitz’ courtroom, 310.  Space limitations dictate.  A huddle of as many as seven attorneys and a potential juror in front of the bench may be too tight.

Juror questionnaires are also being drafted and Leibovitz is soliciting proposals from both sides.  She said that the juror pool will be pre-screened for length of service, six to eight weeks. 

From the juror pool each side is allowed twelve strikes: four for each defendant and 12 for the government.  Four alternates will also be seated and strikes are allowed for them as well, three each.  Leibovitz hopes to sort through 23 jurors a day next week and have them picked by Friday, May 14.

Some time was spent yesterday discussing courtroom arrangements and seating. The Court’s public information officer is setting aside eight to ten seats for media.  The first row behind the defendants and counsel will be for paralegals and associates.  The row of six seats immediately behind the jury will remain empty.  Some seats are reserved for family.  An overflow crowd is expected; there may be extra chairs set up and a rotation system for spectators may be initiated. 

The two-month trial estimate came from Leibovitz asking both sides who how many witnesses they may call.  Kirschner estimated he’d be calling the better part of 70 witnesses, but possibly losing  a dozen.  Of those, 24 are expected to be “civilians,” most of their testimony “brief” and four “lengthy.”  Kirschner may call anywhere between 9 and 16 experts, 22-24 law enforcement officials (six lengthy), and five to 10 “others.”  He later admitted that four to six weeks for his case in chief may be “an overestimate.”

For the defense, Thomas Connolly estimated his team would call eleven experts, twelve “civilians” and clearly stated, but perhaps just a head fake, that one or more of the defendants could take the stand as well.

Leibovitz did the math.  She estimated they could conceivably get through two or three experts each day,  an estimate she called “realistic”, and hopes to simplify things for the jury in some regards.  Drawing on her years hearing medical malpractice cases, she suggested both sides come to agreement on a “glossary” of terms and the government put together a book of exhibits so each juror could have the evidence handy.

The defense will use a digital projector for their exhibits but the government will stay analog with an overhead projector and good old-fashioned mounted exhibits.  Word is that there is also room on the third floor of Moultrie; an audio feed may be sent in there to accommodate overflow.

As far as scheduling in the out weeks, Leibovitz shared the good and bad days on her current calendar.  Although she normally sets aside Friday for procedural matters, testimony will probably be heard those days.  May 19, June 8-11 and possibly July 7 appear out.  Accommodations may be made for both the Memorial Day and July Fourth holiday weekends; “…the jury will be needing a break by then,” Judge Leibovitz opined.

It is now entirely possible that this trial will conclude near the four year anniversary of Robert’s murder.   If ever there was an example of the desperate need for greasing the wheels of justice, look no further.

-posted by Craig