Digging out in McLean
The federal government is shut down again today, Capital Area citizens are still digging out from the two feet of snow. And yet another storm is forecast for Tuesday. We’re all suffering from cabin fever.
The only wmrw.com staffer working this weekend was editorial cartoonist Thomas Nasty. Impressed by the work on the transcript post, Nasty trades in his poison pen and tries his hand at animation.
-posted by Doug and Craig
The January 15 Status Hearing
DC Superior Court’s steam-powered rule that prohibits TV coverage of hearings has long vexed both seasoned journalists and cub reporters alike.
Not dissuaded, and taking a cue from the rascals who are reenacting the Prop 8 proceedings in California (the federal civil trial concerning the legality of same sex marriage), we offer a similar feature but without having to pay SAG rates.
The renderings are by no means precise and we apologize up front for the five o’clock shadow seen on defense counsel David Schertler and Robert Spagnoletti. In a very brief clip, Judge Lynn Leibovitz gets things under way:
Right click the graphic to roll tape in new browser
After the jump, a longer segment featuring the key arguments that day, how much of the government’s theory on the injection of paralytic drugs and sexual assault that preceded Robert’s stabbing will make it into the trial.
The full hearing transcript follows as well.
In Senseless Crimes, Sex Is Often The Motive
At trial, the of question ‘who did it?’ is bound intimately to its partner. ‘Why did they do it?’
“This is a head scratcher,” says noted homicide investigator Dallas Drake. No small remark from a man who’s seen thousands of murders. “The hardest type of case to solve is the motiveless homicide.”
Motive is crucial for investigators and prosecutors alike. For investigators because it directs the finger toward the accused, sorting innocent from guilty. And for prosecutors, because motive is the one thing that connects the thousand isolated – and hard to digest – facts into a single, coherent, sensible narrative for the jury.
Motive is the story that sells the conviction. One of the biggest gifts a defense team can get is a charge against their client with no clear motive.
Still unclear in Robert’s case is what motive the prosecution will settle with. Sexual assault? They’ve wavered back and forth on that, and it’s uncertain how much evidence Judge Leibovitz would allow. Jealousy – but of what or who? We’ve heard no such theories. Old standbys money or revenge? Not a lint-trap’s worth of evidence.
The defense has a similar problem: was the intruder a thief? Not so, says the evidence. Was it a targeted killing? Improbable: how could anyone have known where Robert would stay that night – let alone which room – allowing the “intruder” to enter and depart so unerringly? Yet similar is not same: the defense doesn’t have to offer motive to win acquittal.
Failing the guilty party/ies coming forward, the Wone case remains impenetrable precisely because it appears to be locked in this black box of being a motiveless crime.
But perhaps science provides a key. Keep reading →
Do the Locomotions
We’ve long wondered how the Swann Street defendants are able to afford such a pricey, star-studded legal team. Four of the best criminal defense guys in town have been at the switch for nearly four years.
The billings so far must be staggering and there are many more miles to go. There’s a complex motions schedule ahead leading up to the May 10 trial. Then there’s that long haul, expected to go a month or longer. Question:
If four freight trains leave the Moultrie Courthouse rail station at the same time and in the same direction, all hurtling down the track at $600 an hour, what will the total fare be by the time they all arrive, at a verdict?
Or: Hourly rate x 20 some-odd billable days x 4 attorneys = Yipes Stripes!
Some insiders have guessed that the defense attorneys may have taken on this case with discounted billing rates or even a flat fee, in exchange for a larger payoff at the end, a nice bump from the publicity.
Paying the freight of this legal team looks especially challenging since as far as we know, at least some of the defendants are still unemployed (more on this later.)
Joe Price was fired from Arent Fox a year ago and Victor Zaborsky left his marketing position with the dairy industry’s MilkPEP last summer…but of course that was then. As for the occasionally employed and/or under-employed Dylan Ward, the November 2008 Motion for Pretrial Release said in effect he remains a ward of his family and, “…has very limited assets and income. The brunt of the defense costs are being born [sic] by his parents.”
Without steady paychecks, the threesome have turned to less orthodox means to keep the trains running. Also in November 2008, Price sent out this letter to friends and family, establishing his (or their) legal defense fund. Lawyer Price himself made clear in that appeal, there are no disclosure requirements for the fund so it’s anyone’s guess what the take has been…and from whom.
No jobs and having to fund raise during a recession must be challenging. What to do? There’s always the Miami Shores property to borrow against, right?
Maybe not; that train may have already left the station.
Love is a Two-Way Street
Joe and Victor Jumped to Dylan’s Defense; Why Didn’t Dylan Reciprocate?
Throughout the investigation into the murder of Robert Wone, the Metropolitan Police Department maintained that the Swann Street defendants told a consistent story about what happened on the evening of August 2, 2006. Diane Durham’s statement was the first to question the authenticity of this claim.
Yet, if their version of events from that ugly evening always lined up, you would also think they always had each other’s backs. However, that doesn’t seem to be the case.
In the original affidavit both Joe and Victor defended Dylan. Joe’s statement was the strongest:
“There’s no way on the face of the earth that Dylan could even punch somebody. I know Victor and Dylan better than I know my mom. They (Ward and Zaborsky) couldn’t even spank a child that was being bad.”
Victor’s statement was equally definitive:
Zaborsky speculated that Ward could not have killed Mr. Wone because Ward is “one of the nicest, sweetest people I’ve ever met.”
While being questioned in Ancostia the evening of the murder both Joe and Victor were quick to defend Dylan from any involvement in the murder of Robert Wone. Also notice, though, that their defense is not based on first-hand, eye-witness evidence, but rather is character based. Dylan is sweet, so he could not doing anything so reprehensible.
What Dylan said follows after the jump.
Judge Leibovitz Sets a Feverish Pace
Also hitting the DC Superior Court database in the wake of the January 15 status hearing was Judge Lynn Leibovitz’s granting IN PART of the Defendant’s Motion for Scheduling Order.
First up is a February 5 deadline for the government to have their Rule 16 notice, complete discovery and file their Notice of Uncharged Conduct I. Additional deadlines were set regularly for every week to two weeks.
Leibovitz seems determined to gavel in the trial on May 10, the date that her predecessor Judge Frederick Weisberg set at a status hearing last May.
In her order, Leibovitz writes that the schedule “will promote fair and orderly trial preparation by the parties, and permit the court to resolve disputed issues in the case timely.”
Can we assume neither side, nor the Court wants to delay this any further? Or could a delay benefit one side over the other?
The fine print in Leibovitz’s order is worth noting:
“The parties have continuing discovery obligations. This deadline is not a discovery cutoff, and is entered without prejudice to the parties’ rights to seek the admission of evidence disclosed after this deadline.”
Is either side really hellbent on going to trial on May 10?
And Male Enhancement
Last week in the prosecution’s latest discovery filing we learned new, albeit vague, information on the electro-stimulation device found in Dylan Ward’s bedroom and the location(s) of the needle puncture wounds found on Robert.
Another key piece of evidence from the night of the murder, Victor Zaborsky’s 11:49pm 9-1-1 call, has taken on a new role. Turned over by the government to the defense was a copy of “United States Secret Service report and related documentation concerning enhanced copy of the 9-1-1 call.”
Case watchers first heard this seven minute call, alternately described and sounding earnest or staged, in Paul Duggan’s Washington Post series on the murder. (The 9-1-1 call can be heard by right-clicking here).
Since Duggan’s piece hit, we’ve become familiar with the call’s content and Zaborsky’s demeanor while on the line.
“…we’ve had someone (unintelligible) in our house evidently, and they stabbed somebody… …I don’t know, we think it’s somebody (unintelligible) an intruder in the house. We heard a chime. …but we need help now.
“I’m gonna go down… …the person had one of our knives. …we have no idea, we have no description. We heard the chimes, and we heard the screams from our friend. And so we came running downstairs, we ran in… …we have an alarm, and so the chime went off… I’m afraid to go downstairs.”
The more we listen to the call, the more questions pop up.
But what has remained most curious ever since the call surfaced is what is not heard. What might the USSS enhancement tell us about what’s missing?
Government Cedes Crucial Element; Opens New Avenues
With a new judge setting an expedited schedule, and a trial date drawing nearer, filings between all sides – the government, the defense and the court – are moving post-haste. And that’s only half the story.
Critical information contained in these filings, which has never been revealed, shows both sides focusing their arguments, shoring up their strengths and minimizing weaknesses as they head towards the May 10 trial date.
Electrostimulation unit found in Dylan Ward's room
In the latest filing to hit the database, the government reveals for the time that according to the manufacturer’s spokesman, the electrostimulation unit found in Dylan Ward’s bedroom (an ET-302R) was not capable of inducing a passive/involuntary ejaculation.
This impacts a crucial element in their theory that Robert Wone was sexually assaulted, tortured and then murdered.
Also revealed for the first time is an EMT involved in transporting Robert Wone’s body who “believes” that the puncture wounds found at the bend of his elbow was an attempt to gain IV access to resuscitate him.
Yet, the EMT also “ruled out” several of the other puncture wound locations “as places where IV access would have been attempted.”
What this may mean for the case, after the jump.
Judge Lynn Takes Ownership
The first indication that a new judge with a new way of doing things has taken the reins of the Wone case occurred just before the gavel fell on Friday. As always, we grabbed our seats early just as the bailiff unlocked the courtroom doors and waited for the customary “All rise,” that heralds the judge’s entrance.
But not last Friday. “Please stay seated,” we were told.
An early Bush 43 appointee, DC Superior Court Judge Lynn Leibovitz was sworn in less than two weeks after September 11. It’s not easy finding much that’s been written about her although one case stands out. And if her sentencing remarks are any indication of her style, the Swann Street defendants might be in for a bumpy ride:
“You profess to despise rich people. You profess to despise the faceless, nameless forms of government that oppress. That’s what you’ve become. That’s what you are. You’re a rich kid who comes into Washington and defaces property because you feel like it. It’s not fair. It’s not right.”
The poor sucker on the receiving end of that tongue lashing goes by the name of Borf. In 2006, prolific 18 year old DC graffiti “artist” John Tsombikos’ luck ran out. He was arrested for property damage and drew a pretty tough judge.
She gave him 30 days in jail, 200 hours of community service and ordered him to pay $12,000 in restitution. Tough stuff. We hope whoever is responsible for these tags never finds themselves in front of her.
While little is in the databases on Leibovitz, we’ve gathered several anecdotes that may help us chart her course with the Wone trial.
One case insider with intimate knowledge of the crime and principals draws two key distinctions between her and the case’s previous steward, Judge Frederick Weisberg: the 48 year old Leibovitz may have an eye on a higher bench and, unlike Weisberg who could care less about the publicity surrounding a trial, she is of a different generation with a far different appreciation of the media.
That’s only the start of the differences in style.
Friday’s Hearing – And Behavior – Raises A New Theory
The more time passes from Friday’s status hearing, the more serious questions arise. We love hearings like that, and will have much to say over the next few weeks.
As always, there were small details of the day that could easily be over-looked. Mere dots on a much larger canvas. However seen together, and with the advantage of a little distance, these small pieces may – perhaps – be the telling details of a very big story change about to come. Perhaps.
These are the dots…and one possible way to connect them.
First, while shooting the departure video (shakes and all, our apologies) it did seem a bit odd that Joe Price and Dylan Ward’s co-counsel Robert Spagnoletti were leaving together, and alone.
Of course, one could write that off to the defendants becoming more wily in evading cameras, or perhaps Joe’s apparent need to manage the legal strategies.
Second, when we learned that Victor Zaborsky, Dylan Ward and Victor’s counsel – a clearly irritated Thomas Connolly – not only used a different exit but actually went in a completely different direction than Joe…eyebrows raised.
Third, thinking back to the pre-trial scene, we all separately noted how…uncomfortable… it felt that Joe was at one end of the hall conferring the Mr. Spagnoletti, with Dylan and Victor at the other end; those two arriving and even entering the court-room together (and thanks again for the door Victor; very kind.) In fact, looking back the only time the three defendants were physically together was during the hearing: Joe in the middle, Victor on Joe’s right, Dylan at his left. There is a certain truth in physical details.
And fourth, these all combined with Mr. Connolly’s “indiscreet” remark, directly in front of one of these four editors. Face clenched, clearly irritated at the knuckle-rapping he and his team had just received from Judge Leibovitz, Mr. Connolly none-the-less moved himself to prevent any direct photos of Dylan – who isn’t even his client. And a breath of a moment later, speaking loudly enough to be heard, he made his now headline remark.
Let’s be plain. A man of Mr. Connolly’s skills knows exactly what he’s doing. He could have waited for a private moment to relay his thoughts to his client, but didn’t. He chose this moment to make clear his displeasure at what had been “…not a good day.” It seems obvious he wasn’t just speaking to his client, but to someone else as well. But who?
After the jump, the dots connect in an unforseen way.
A New Judge, And A New Attitude, In Moultrie >> New pic added
Long time Wone observers had become accustomed to the somewhat folksy ways and relaxed pace of Judge Fredrick Weisberg. Whatever else learned from today’s status hearing, it was obvious that new Judge Lynn Leibovitz came ready to rumble.
Dylan Ward, Victor Zaborsky and Thomas Connolly
“I’m not inviting arguments, but I’m ready to hear them,” she began, setting the tone for what would be a fast-moving, and eventful hearing. Gaveled in at 2pm, Judge Leibovitz began ready to rule on the defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment.
Robert Spagnoletti for the defense, and AUSA Glenn Kirshner for the prosecution, took Leibovitz’ invitation literally, jousting on whether the 17 overt acts detailed in the superceding indictment meet the legal definition of conspiracy and obstruction.
The defense strategy has long been not to argue the factual basis of those acts, rather to claim they simply don’t rise to a sufficient level for the government to bring charges. “There is no case,” said Spagnoletti, “…the government would have this court believe defendants can be questioned without any representation, and then be charged. Charged for not confessing.”
The government, and increasingly Judge Leibovitz, would have none of it. “This is a sufficiency of evidence claim with lots of window dressing,” said Kirschner.
Spagnoletti pressed forward. “We feel very strongly…” “I noticed,” shot Leibowitz, to the amusement of the court. Arguments invited and offered, Leibovitz said she was prepared to rule. Not just rule, but reading her entire opinion into the record; she went on at great length, a filibuster. “On the motion to dismiss, I find the defendant’s argument meritless and should be rejected.”
The defendant’s demeanor become solemn; Victor and Joe seeming as though the air was being let out of them, and Dylan expressionless as always. Defense counsel as well; you could see this defeat on their faces. The judge’s opinion was thorough and definitive, even referencing basic legal definitions and case law (see Braverman v. U.S., 317U.S.49) while noting the defense’s basis for argument were clearly pulled out of context. Leibovitz reached back all the way to 1942 for the Braverman ruling. Paging Chief Justice Harlan Stone!
Twenty minutes and already a ruling? Not in Weisberg’s court.
Team Coverage
Live and frequent updates from the courthouse will begin at 1:00pm ET. A wrap up of today’s court action including pics and vids, goes up around 6:00pm.
345pm: We got some stills and video of the defendants and principals leaving the courthouse. We also managed to overhear a couple conversations…. We’re back at the bureau and are working on the wrap-up post now. There’s lots to cover.
310pm: Adjournment. Headlines: Judge denied Defendant motion to dismiss obstruction and conspiracy counts. Briefing schedule set. Govt needs to file a lot by 5 Feb.
Leibovitz very engaged, involved and up to date on case elements.
Next status hearinf on Friday 12 March.
Full hearing report to come around 6pm or 7pm.
2pm: set to start. Members of Wone family here. Fewer defendants supporters than in past. All principls seated in courtroom. Awaiting judge Leibovitz
100pm: Arrived at courthouse. Mob scene of TV cameras and live trucks outside. All for the basketball guy, not Robert.
10am: If you plan on attending today’s status hearing, get there early; a large crowd is expected. Wash Wizard’s Gilbert Arenas in court to cop a plea on weapons charge.
Hard Copies
As promised, the three motions filed ahead of Friday’s 2:05pm status hearing. Two seem rather routine. The third, not so.
The Government’s Response to Defendants’ Joint Motion to Exclude Uncharged Criminal Misconduct at page one argues that since the case’s previous Judge Frederick Weisberg had not set a briefings and motions schedule, which would be necessary, they are unable to file a Notice of Intent to Introduce Uncharged Conduct. Simple enough.
In the Government’s Response to the Defense Motion for Scheduling, the Assistant US Attorney’s Office proposes the following briefing schedule:
February 25: Remaining Expert Notice Due
March 10: Affirmative Motions Due
April 7: Oppositions Due
April 14: Motions in Limine Due
May 3: Opposition to Motions in Limine Due
May 10: Motions Hearing / Trial
Again, simple enough; and after nearly four years since Robert’s murder, it’s reassuring to still be seeing May 10 as D-Day for the trial.
Two small points jump out in the last motion…and a larger, more ominous one maybe lay deeper inside the text.
The Defendant’s Reply to the Government’s Opposition to Defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment (the obstruction and conspiracy charges) runs 22 pages and is laden with references to legal precedent and case-law. Merriam-Webster’s Online Dictionary too for good measure.
And perhaps in an instance of either bad taste or an inside joke, the defense leans on a peculiar case to buttress their argument: Andrews v. United States, 981 A.2d, which goes into detail on a prostitute, oral sex, condoms and underwear. *Ahem*
OK…so here it is the New Year. How many of you still writing 2009 on your checks? Well, so, too, might the associate at Schertler - Onorato who banged out this document. The date of tomorrow’s status hearing is listed as January 15, 2009.
Much of the defense’s argument revolves around what constitutes a “official proceeding” and alleged false statements given to investigating officers.
Lastly, this motion reveals a notable event that occurred in November, 2007: a lunch conversation between Joe Price and Kathy Wone.
Whether any of these are addressed at tomorrow’s 2:05pm status hearing is uncertain. All three motions follow the jump.
-posted by Craig
Paper Flies Ahead of Friday’s Status Hearing
It’s become the norm that motions are filed ahead of the status hearings and this week is no exception.
Three of them have hit the DC Superior Court Clerk’s office in recent days:
Gov’t Response to Defendants’ Joint Motion to Exclude Uncharged Criminal Misconduct Filed Attorney: PHILLIPS, CHANNING
Gov’t Response to Defendant’s Motion for Scheduling Order Filed Attorney: PHILLIPS, CHANNING
Defendants’ Reply to the Gov’t Opposition to Defendants’ Joint Motion to Dismiss Counts One and Two of the Indictment Filed Attorney: SPAGNOLETTI, ROBERT; Attorney: GRIMM, BERNARD; Attorney: CONNOLLY, THOMAS; Attorney: SCHERTLER, DAVID
We’re at the courthouse now trying to obtain the hard copies and will post and update when they become available. Just appointed, Judge Lynn Leibovitz gavels in her first status hearing on the case tomorrow at 2:05pm.
The Toxicology Report
For the past three years, case watchers have held many unanswered questions regarding several aspects of drugs, testing and blood samples. Both prosecution and defense teams have shared some of those questions.
In the original affidavit, the government theorizes that prior to his stabbing Robert Wone was injected with paralytics. They base this on two factors: he showed no signs of defensive wounds of fending off the knife attack, and the autopsy revealed a number of unexplained “needle puncture marks.”
Sic Semper InKompletus
Much of the last year’s legal battles at the status hearings involved what other tests the government could perform on the scant amount of blood saved, only 3 or 4 cc’s.
We’ve long known what specific drugs Robert’s blood and tissues had already been tested for – they’re spelled out by Medical Examiner Lois Goslinoski in the indictment. However those test results, all negative, combined with the puzzling puncture marks and lack of defensive wounds, led Dr. Goslinoski to speculate:
“…there are various incapacitating or paralytic drugs for which no tests were run as there was no early indication — in light of the statements that Price, Zaborsky and Ward gave to the police — that Mr. Wone may have been injected with any such drugs while at the Swann Street residence.”
The prosecution has posited that an unknown agent was used to incapacitate Robert, but the defense has, for just as long, argued the government could provide no specific, positive evidence as to what specific agent was used.
At the May 22nd status hearing, Zaborsky defense attorney Thomas Connolly pressed the prosecution to test for “…anything they wanted…just get it done…”, even if it meant consuming Robert’s last remaining blood samples. Mr. Connolly’s repeated, boisterous calls for any and all needed testing were notable for their seeming confidence.
We have long speculated whether ketamine could account for the curious circumstances around Robert’s murder. However, the affidavit did not specifically mention whether ketamine was tested for – and you can’t prove a negative, or a thing by its absence.
Now, guesswork yields to lab work.
Signed by Rory M. Doyle, Deputy Chief Toxicologist of the DC Office of the Chief Medical Examiner, the 10th and final page of Robert Wone’s autopsy report answers this lingering toxicological mystery.
Points On The Board
Just four months from today, barring no last-minute delays or penalty flags, Judge Lynn Leibovitz will gavel in the trial in which defendants Joe Price, Dylan Ward and Victor Zaborsky face charges of obstruction of justice, crime scene tampering, and most damning – conspiracy.
Try as he might, Glenn Kirschner - chief of the Homicide Division, Assistant US Attorney and college football All-American – may not be trying the case he’d hoped for. “Homicide” is on his business card after all.
Two DC grand juries sat but neither was able to come to agreement on murder or homicide charges. Initial missteps in the investigation, including the fumbling of crime scene evidence, may have precluded those more serious charges from being filed against the Swann Street housemates.
In the fall of 2008, Team Kirchner called an audible and went for a shot at the three lesser charges.
Getting into the end zone still seems remote, so maneuvering his squad into field goal range may be his best chance to score.
For anyone watching the developments over the past year, it’s still unclear how Kirchner and his deputy T. Patrick Martin will prosecute the existing charges.
The spring and summer battles over discovery items and additional biologic testing seem to have been worked out, but we still don’t know how or even if the government will follow through on their initial game plan – namely the theory laid out in the original Ward indictment that Robert Wone was injected with paralytic agents and sexually assaulted prior to his stabbing.
The previous judge on the case, Frederick Weisberg, seemed hesitant to move the chains on those accusations, which depend on elements of negative evidence. Most of Kirchner’s attempts to introduce them were stopped cold by the defense and might not survive to game day. The goal posts must seem pretty far down field for him.
What’s in his playbook when he calls the huddle next May? Seventeen plays – seventeen overt acts of conspiracy laid out in the superseding indictment.
And to score, all Kirschner needs to do is split the uprights just once.
See You in the Funny Papers
Prosecutor Glenn Kirschner gets to the bottom of the Swann Street mess
-posted by Craig
Why Didn’t Anyone Check On The Third Housemate? And What Of That Bloodstain?
It’s been said a crime succeeds or fails within the first 6 minutes. It’s our collective hope to see this crime fail, which brings us once more to the first moments after Robert’s murder.
As previously discussed, there are many things about the time line of August 2nd, 2006, that just don’t add up. There is something new to add to the list.
The Missing Piece
We know the 9-1-1 call was made at 11:49pm. We know from the 9-1-1 call that Zaborsky – at 11:54 – was at the front door (you can hear him greeting and responding to EMTs.) The call and the original indictment lead us to believe that Price was upstairs in the guest bedroom by Robert’s side (the EMTs report this and the call recording seems to feature Price’s voice responding to Zaborsky.)
Further, we know a neighbor reported hearing a scream sometime while watching Maureen Bunyan on TV – placing it between 11:00 and 11:34pm – and Zaborsky told investigators that he initially screamed when finding Robert. “Became hysterical…” as he told investigators, when Price then allegedly told him to go upstairs and phone 9-1-1.
Within :13 seconds into the call, Victor tells the 9-1-1 dispatcher “…we’ve had someone (unintelligible) in our house evidently, and they stabbed somebody…” At 1:15 when asked who committed the stabbing he says “…I don’t know, we think it’s somebody (unintelligible) an intruder in the house. We heard a chime at the door.”
They tended to Robert, phoned for paramedics, dealt with authorities, scanned for intruders. And here is where the problem emerges. What’s missing? Or who?
Did anyone check on Dylan? And if not, why not? Wouldn’t you?
Michael
David
Doug
Craig