Monday will find us one week out from the start of the trial. 

As we gear up and adjust our schedules to staff the expected month plus long proceedings, we’ve had to make some changes in the line up.  The planned gavel-to-gavel coverage dictates this.

At this Wednesday’s, May 5 evidentiary hearing, we’ll know if we have an intern.  Someone reached out to us last week and we think we have our candidate.  If we find that he’s able to tolerate us for more than an hour or so at this week’s hearing, he’s hired.

This possible new hire will come at the expense of another longtime wmrw.com staffer.  Sent packing this week was editorial cartoonist Thomas Nasty, another victim of newsroom budget cuts. 

It’s with mixed emotions that we let Thomas go, but that didn’t stop us from rifling his desk drawers for one last contribution.

-posted by Craig with apologies to Bob Weber, Jr.

We’ve come to learn from the Harry Jaffe’s Washingtonian piece that in addition to the hundred and hundreds of mourners at Robert’s funeral service was at least one member of the DC MPD. 

The turnout and outpouring that day should have been evidence enough for the detective to fully understand the magnitude of the loss, and if he was listening closely to the eulogies at all, he would have truly appreciated the impact Robert had in his too-short life.

One friend from William and Mary who attended that day as well, reached out to us some time ago to share what seemed to be another dynamic at the service.  We print the email in its entirety:

I did know both Joe and Robert well from WM days. 

I was very good friend with Robert, but only passing acquaintances with Joe and hadn’t spoken to him in a number of years (other than at the funeral).

Honestly, at the funeral, Joe came across as being nearly as much a victim as Kathy was. 

How horrible it was to have one of your good friends murdered in your own home.  I recall Joe having almost a reception line of well wishers giving him hugs and comforting him at the funeral. 

I shook hands with Joe after the funeral while everyone was filing out to go to the cemetery and felt as sorry for him as I did for myself at losing such a great friend. 

I don’t remember seeing Victor or Dylan at the funeral.  They could have been sitting beside Joe for all I know…

-posted by Craig and David

In the clerk’s office this week was thirty pages of Defense Joint Response to Government Notice of Uncharged Conduct II and Some Other Stuff.  Nowhere to be found was the government’s notice that this filing responds to, so this doc will have to serve as a study guide.

Who's the mystery long shot pick in the Derby?

In the government’s first uncharged notice from March, AUSA Glenn Kirschner blasted the defendants with the long list of S&M toys gear, “evidence of dominance and degradation, enslavement and electro-torture… evidence of incapacitation” and plenty on defendant Joe Price’s brother, Michael.

Much of that, as they say, has been winnowed.  It now appears the government intends to introduce three categories of “purported” evidence:

Evidence Concerning Access to Restraints

Evidence of the Late Reporting [of the burglary] as Proof of Conspiracy

Evidence of the Nature of the Defendants’ Unique Relationship as Proof of the Conspiracy.

Dylan Ward counsel David Schertler unloads on Kirschner and tweaks his deputy, T. Patrick Martin as well, using the grand jury transcripts of his questioning of Ward and fellow defendant Victor Zaborsky.

Schertler mocks the “Government’s constantly evolving theories” of incapacitation, like the  undetectable paralytic agent succinylcholine, and then of course xylene.   Physical restraints?  No go, says Schertler:

“The erotic toys were not found on or near Mr. Wone.”

“There is no evidence that they were used on him (and the Government has undertaken no effort to test or otherwise prove that any one of the erotic toys was used on Mr. Wone…” and

“The erotic toys are no way relevant to the Defendants’ intentions.”

Brushing back Kirschner’s charges of reporting the burglary late, Schertler quotes  Martin’s grand jury questioning from August 2007.  That does not appear to be a typo; the burglary grand jury sat 9 months after the robbery and a year after Robert’s murder.  Justice delayed much?

MR. MARTIN:   On October 30th was it reported your home was burglarized?

MR. ZABORSKY:  It was not reported in the 3oth and we wanted to talk to counsel.  We wanted advice of counsel.  And so that is the reason that we didn’t pursue this on that night.

- later -

MR. MARTIN:   Joe [Price] was against reporting it [the burglary]  Or is that not a fair assessment?

MR. WARD:   I would way that’s not a fair statement.  I think it was an ongoing discussion that wasn’t solved on Monday, by the time we went to bed.

MR. MARTIN:   Why didn’t you report it in between the time of making a determination on the 31st that you should report it, and November 2nd when it was reported.

MR. WARD:   On the — I was waiting for my counsel.

On page 21 of the filing, Schertler details Michael Price’s March 20, 2007 email apologizing for the burglary and the threesome’s alleged failure to report that as withholding material evidence.  By August 2007, the question was moot as Phelps Collins confessed six months earlier.  Again, Martin’s questioning of Zaborsky is excerpted:

MR. MARTIN:   Let me ask you one more question about grand jury Exhibit 1 [ the email].  Is it, why didn’t you give this to the police when you first got it?

MR. ZABORSKY:   I – to be honest with you, I never even thought of it as being relevant.  I mean… the police very quickly determined that Michael was involved, and… it wasn’t like that was an admission that would… help the case.  And honestly, I literally read that and I didn’t delete it but I just put it in a folder and never read it again.

It’s a decent read if you skip the boring precedent stuff.  A better read may be one waiting for us in the clerk’s office.  You’ll never guess whose testimony the defense wants spiked next.  W-1, W-2, and a whole mess of other W’s:

Defendants’ Joint Motion in Limine to Exclude Opinion and Speculation Testimony of EMS Technicians and Police Offivers [sic]

[Clocker's Corner]:  Another Derby Day comes around, and wmrw.com hunch players are looking at one particular runner this afternoon.  Stately Victor, the surprise winner of Keeneland’s Blue Grass Stakes goes to the post again today as a long shot, now at 16-1.  Good luck players.

-posted by Craig

It’s rare a topic in this case comes along that so finely meshes with your editor’s skill sets…other than the basic one.  And by that we mean living  in DC long enough – and having been employed on some side of the communications business – to detect excrement when it happens.  (And, hopefully, still have the chutzpah of Sen. Levin to call a “…shitty deal…” exactly what it is.)  But at many levels, this case has been a learning exercise.

Last Friday, Victor Zaborsky’s counsel Thomas Connolly informed the court the defense would not call for testimony from Dr. Al Yonovitz, Chair and Associate Professor for the Department of Communicative Sciences and Disorders at the University of Montana.

Anything that slims the calendar may be a good thing for both sides.  And Dr. Yonovitz’ research – much based in Australia – demonstrates a sharp and admirable focus on improving treatment of the hearing impaired, especially among the aboriginal population.  Good work, Dr. Al.

But then we dug down into Dr. Yonovitz’s expected testimony, and questions popped up.  Questions as to the basis for his assertions – and the deeper questions they may have provoked that the defense may not have wanted.

Are you listening?   To be determined, after the jump.

Back to skill set.  One of us completed his thesis work in psycho-acoustics titled – should anyone care -”Gestalt Grouping Versus Peripheral Auditory Channel Excitation in Stream Segregation.”  (Not the link to the thesis, but one subsequent peer-reviewed article of many.)

We have a fairly robust understanding of audiology and acoustic research.  Which brings us back to what the defense put forward as Dr. Yonovitz’s expected testimony.

In Attachment B of the Government’s Omnibus Motion in limine Regarding Certain Defense Experts, we learn that Dr. Yonovitz (designated by “Defendant Zabrosky”) conducted sound measurement tests at 1509 Swann.  Among the tests was placing a speaker generating white noise (equal distribution across the spectrum) staring at 60 dB in the second floor office/bedroom and monitoring sound levels at various points in the house, under various circumstances.  Another test:

“Dr. Yonovitz is also expected to testify that the noise level for a 213 pound person walking on the stairs from the first floor to the second floor and the second floor to the third floor was recorded.  The noise level when tested for the sound of the person on the stairs was 48.2 dB (from the crime scene bedroom), 46.6 (for the second floor bedroom) and 44.4 (for the third floor bedroom.”

It was also his assertion that “…a person’s sleep can be interrupted or disturbed by sound levels between 60 and 84 dB, however, rarely is a person awakened by those sounds.  Only where the highest level of sound source (85-90 dB) occurs is an awakening likely to occur.”  Ergo: it’s entirely plausible the housemates didn’t hear the intruder go up and down the stairs.

Considering the logarithmic nature of the dB scale, the difference between 45 and 85 is massive.  45 dB may be like the general ambience of a quiet home – humming appliance, computer hard drive, filtered street sounds – while 85 can be like sitting in a moving diesel truck.

The first question is the methodology for the stairs test.  Was this person walking steadily and surely up the stairs?  Or was he running down, each footfall landing fast and hard?  There’s a vast difference not only in amount of noise generated but the character of the noise and how the brain interprets it.

But a deeper issue crops up.  As we saw Tuesday, both Joe and Victor made specific, repeated references to “..low breathy grunts…” they heard coming from Robert’s room.  This with, as they say, both his door and their door closed.

First, there’s a significant difference between a low grunt and a high-pitched scream in terms of how the sound propagates and is heard by the brain.  But if Dr. Yonovitz’s ambient test results were correct, then – by his own testimony – there’s virtually no way the two upstairs could have heard such low sounds.

So which is it?  Is Swann silent as a library or loud as a disco?  If silent, then no-one could have heard the low grunts; if loud, then why did no-one hear the hurried footsteps of a fleeing murderer?

We can only guess how much the defense had to pay Dr. Yonovitz for his time, research and opinion, but with the pulling of his testimony, it was money wasted.  Perhaps worse: with the prosecution’s publishing of his findings and the contradictory assertions they present, it may have been money misspent.

-posted by Doug

The involvement and expected testimony of celebrity forensics expert Dr. Henry Lee has long been a topic of discussion here.  First word of his work on behalf of the defendants surfaced at last November’s status hearing.

At the time, it wasn’t clear if he would become a permanent member of the team because of his extensive travel.  Managed by Joe Price Counsel Bernie Grimm, Lee ultimately signed on and as best we can figure for a hefty fee, upwards of $50,000 we were told, maybe higher.

His name next surfaced in a January letter Grimm sent to the government alerting them that Dr. Lee was going to be performing forensic tests on Item 16, the towel found in the guest room at 1509 Swann Street that was supposedly applied to Robert’s wounds by Price.

It appears Dr Lee’s testing is complete and the results are in.   While tens of thousands of defense dollars will be spent on expert witnesses who will testify on the many reasons blood was not found at the scene, Lee will take a different tack on the witness stand.

According to his testing, he actually found blood where few have seen much at all.  That towel.

New to the clerk’s office is a follow up letter from Grimm to AUSAs Rachel Carlson Lieber, T. Patrick Martin and their boss, Homicide Chief, Glenn Kirschner, regarding Dr. Lee’s testing:

“Dr. Lee applied a chemical, tetramethylbenzidine (TMB), to the towel (Item 16) which enhanced the bloodstain.

“That enhancement confirmed his preliminary opinion that the impression on the towel is consistent with the towel being used to apply pressure to Mr. Wone’s stab wounds.”

There’s not much online for TMB online but this user guide from the President’s DNA Initiative gives a summary on it’s application as a catalytic presumptive test for blood.  According to a stone age research paper from 1976, a presumptive blood test, “..should be sensitive to some component of blood which remains even after the blood has dried, aged, or become diluted.”  The researchers found it could be an “invaluable presumptive test for blood.”

As for dna.gov, a Bush 43 initiative, tracing agent Luminol made it to their lab training manual but nowhere to be found is the craptacular Ashley’s Reagent, a chemical used by the MPD, that the defense will say, compromised the crime scene.

Who knows how this will play in front of the jury.  What exactly will they see when Bernie waves the bloody towel?  The government is challenging other defense experts, so maybe they’ll kick sand in Lee’s face as well.  This could all be decided at the May 5 evidentiary hearing, promised to be an all-day affair. 

Assume it gets into trial, how would the government respond to Lee’s findings?  Maybe they’ll echo what Louis Akin, our own in-house forensics jock, said after seeing that now iconic crime scene photo of the not-so-bloody towel, “That looks like someone cut themselves shaving.”

Beyond the beakers and bunsens, the spectacle that is Dr. Henry Lee could have an effect on the jury.  Certainly the wattage of any courtroom increases when a star of Lee’s magnitude testifies.  

How good is he on the stand?  It’s a safe bet that Kirschner will do everything he can to dim his lights but all the defense needs is one after all; one who may have watched too many true crime shows or is one of Lee’s 71 72 fans on Facebook.

Oh, and before you punch up the Doctor’s page you may want to muted your speakers.  The beating heart gets a little weird.

-posted by Craig

In the government’s Omnibus Motion In Limine regarding Certain Designated Defense Experts, they focus on the testimony of Dr. Farzad Najam, a cardiac surgeon at George Washington University.

Dr. Farzad Najam, for the Defense... or Government?

Dr. Najam will testify that the stab wound to Mr. Wone’s heart could have caused “immediate incapacitation,” and would have caused a significant amount internal bleeding instead of an enormous amount of external bleeding.  (The prosecution aims to disallow Dr. Najam’s testimony as ‘outside scientific consensus’ – this debate will feature prominently at the May 5th hearing.)

This is crucial testimony for the defense as it supports the defendants’ contention they did not tamper with the crime scene by cleaning up a significant amount of blood – evidence the prosecution contends would have been found at the scene of a violent crime.

While Dr. Najam’s testimony supports one part of the defendants’ case, it also takes away another crucial element for the defendants.

What that is…after the jump.

If allowed, Dr. Najam’s assertion raises serious questions about the defendants’ explanation for how they learned that Robert was fatally wounded.  Both Joe Price and Victor Zaborsky stated that they heard not just a scream, but a series of screams.

If – according to Dr. Najam – Robert was incapacitated in less than a second, how could he have screamed beyond that time period?

Let’s look at what the transcripts reveal.

In Joe Price’s first statement, he says:

“And I hear what is — you know, it was yelling, but it wasn’t.  It was just like grunts or something.”

In Price’s second statement, he states:

“I hear grunts. (indiscernable) yelling, but I thought well, its not — it wasn’t people yelling words it was like uhh, uhh, something like that, like repeatedly.”

Joe goes to Robert’s side and Victor goes upstairs to call 911.  When he returns to the second floor, Joe says:

“He actually moaned a little bit. He like look at me, or focus on anything, but — and that was the only time he ever made any noise when he was there, you know…”

Victor Zaborsky’s first statement goes even further in contradicting Dr. Najam’s testimony:

“And then we woke up — I woke up to screams. And Joe and I both jumped out of bed and ran to the door. And when we got to the door, Joe went out and flipped the light on and we heard another low kind of scream while we were at the — at our doorway.”

According to Dr. Najam, there is no possible way that Victor could have heard this scream when Joe and Victor were at the door because Robert would have already been dead for up to maybe thirty seconds, even more.

In Zaborsky’s second statement, he says:

“The next thing I know I woke up with a screams. I did not hear the chime. I was sound asleep. So I heard, I heard these set of, like, like, a really low breathy grunt kind of sound, but it was loud, and so I jumped up. Joe jumped up beside me. We’re both sort of “What is that? What is that?”  We run to the door of our bedroom and open the door, and we heard another kind of grunt…”

In both Joe and Victor’s statements, they consistently state that it was not just one scream, but rather multiple screams, which would extend beyond the time that Dr. Najam says Robert would still be alive.

If Dr. Najam is correct in his assertion, the inescapable conclusion is that Robert could not have made multiple screams…and presumably he would not have been found until the next morning by the sleeping defendants.

So while this defense expert has provided the defendants with a plausible scenario on how Robert died, he seems to have also taken away a crucial element of their story, which is how they came to know that Robert was fatally injured.

-posted by David