A Curious Absence?

     At yesterday’s status hearing, Fascinating, one of the site’s frequent commenters who attended, noted that Victor’s Zaborsky lawyer, Thomas Connolly, spoke up against referring to the defendants as “they.”  This color comment highlights a developing theme as the case goes forward — will the three Swann Street residents hang together as tightly as they have during the investigation, and indictments when the case heads to trial.  We certainly don’t know the answer to that question, but in light of Fascinating’s comment from yesterday, I also noticed another tea leaf, if you will, about how united the defendants remain.

     In the government’s response to the defendant’s joint motion to compel discovery, the government writes under the fifth point, “Finally, we understand that counsel for defendants Ward and Price have already met with and discussed the expert medical opinions of Dr. Goslinoski, who conducted the autopsy on Mr. Wone.”   Missing is Victor Zaborsky’s lawyer, Thomas Connolly.

     His absence could be as innocuous as being unavailable because of a previous engagement, “Hey guys, my kid has a baseball game at that time. Can you handle that?” or the defense team is trying to keep legal costs down so they can better allocate their resources on expert witnesses or the such.  It could also be that the government has inaccurate information, and Connelly has interviewed Dr. Goslinoski.  But, if his absence isn’t for a harmless reason, does this speak to how the defense is approaching the trial and how well the defandants are holding together?

     If Connolly didn’t find it important enough to personally question the medical examiner about the condition of Robert Wone’s body, critical to proving the defendant’s case that he was not sexually assaulted and suffocated, which helps support the intruder theory, then does Connolly’s absence show that his client, Victor Zaborsky, has no or less of reason to argue about the condition of body? And if so, does this point to his knowledge about Victor’s involvement in only covering up the crime, not in actually committing it?

     There are a lot of “ifs” in this post, but in light of Fascinating’s comment yesterday, and the continuing discussion and speculation on this site that Zaborsky was not involved in the crime of murder itself, I thought this bit of information was curious, at the least.

     — David

16 comments for “A Curious Absence?

  1. Bea
    04/25/2009 at 5:26 PM

    Good post! Boy do I hope that Victor is starting to smell the coffee.

  2. CDinDC
    04/25/2009 at 5:31 PM

    Do Joe and Ward have individual attorneys? As does Victor? Or are Joe and Ward represented by the SAME attorney?

  3. Bea
    04/25/2009 at 5:49 PM

    Each has his own attorney – that’s standard. Victor is hoping that they’ll be tried separately, or at least his lawyer is. Who knows what Victor can possibly be thinking!

    • 04/25/2009 at 5:55 PM

      many believe victor is the most innocent. it is feasible the murder-cover up was done without his participation; and he was woken up to the other two in chaos. doubtful, perhaps – but feasible. her comments from the first interview may be the most revealing – she could have said she knows nothing and that could be true. is there a gay lover’s privilege in DC; married couples have one I believe? price could have her in the dark about what went down? he should head for the nearest exit as soon as possible!!!

      • Corcoran Cutlet
        04/25/2009 at 6:32 PM

        I still find it hard to believe that anyone could have been unaware of what was transpiring in the house. But I suppose it is possible that Victor came upon the other two cleaning up and was told something like the following: “Someone broke in and murdered Robert. We tried to help him, thinking he was still alive. But now we are all covered with blood. We shouldn’t have moved the body. We should have called the police directly. We know it was a mistake, but now it’s too late because they will surely try to involve us in this, even though we didn’t do it. I’m sorry, please help us. We didn’t do it, I promise. All you have to do is go along with the story and help us here a little bit. We’ll have to shower up first. They”ll find evidence later, but if they see us like this they will never look for the intruder. …Ah, thank you honey!”

  4. Bea
    04/25/2009 at 6:18 PM

    Hey She Did It,

    In April 2002, the “marital privilege” was granted to registered Domestic Partners. With Joe being so involved in gay legal issues, I’m sure he knew this.

  5. Fascinating
    04/25/2009 at 6:19 PM

    I felt that Zaborsky’s lawyer really went out of his way to establish a “theme” that the word “they” was not an acceptable word to use. Not only that, but he said something to the effect of “my client”, which — again — I thought was an interesting point to raise, and also singled out Zaborsky. Ward and Price’s lawyers made no such statement about their clients.

    And, if you want to read anything into the seating arrangements (telling, or no?), it did appear to me that Price and Ward were seated “close”, and Zaborsky was separate.

    We have no idea of what is going on behind the scenes.

    Since the three roomies are being accused “together”, do we necessarily assume that their individual lawyers will work as a “group” to prove their clients’ innocence?

    Or, do you think Victor (or Dylan or Price for that matter) might be working with his lawyer — no matter what the cost! — to be absolved, even if it means throwing the other two under the bus?

    Fascinating ….

    • CDinDC
      04/25/2009 at 6:50 PM

      Fascinating says: “‘my client'”

      I don’t think the attorney use of “my client” would be unusual. They aren’t allowed to speak FOR anyone else.

  6. Themis
    04/25/2009 at 7:56 PM

    There is a presumption that persons indicted together will be tried together. If one of the three is to be tried separately, his attorney would have to file a formal motion to sever his trial from the trial of the others and show good cause forthe severance.

    Normally, a defendant’s statements may be used against him at trial, whether or not he testifies, but a codefendant’s statements may not be admitted against him unless that codefendant testifies and is available for cross-examination. That is particularly true about statements a codefendant makes to law enforcement during a criminal investigation. The “Bruton” rule may provide a basis for severance in certain circumstances.

    However, any statements made by a coconspirator during and in relation to the alleged conspiracy may be admitted against any coconspirator.

    As for “marital privileges,” there are actually two: the testimonial privilege and the confidential communications privilege. The testimonial privilege allows a spouse or partner to refuse to testify against his spouse or partner so long as the legal relationship is intact. It belongs to the person who does not want to testify. The confidential communications privilege belongs to the defendant. If the defendant shows that a communication was made during an intact relationship and in reliance upon the “marital” bond, he can keep his spouse or partner from testifying to that communication, even if the spouse or partner is willing. Importantly, though, the confidential communications privilege does not apply to communications undertaken during the course of joint, and the key is joint, criminal activity.

    These issues come up fairly often in criminal cases.

  7. Bea
    04/25/2009 at 7:56 PM

    Sorry, I meant the “marital privilege” for Domestic Partners went into effect in April 2006, not 2002.

    • CDinDC
      04/25/2009 at 8:29 PM

      in dc?

      • Bea
        04/25/2009 at 9:14 PM

        Yes, in DC. And Themis is right about DC use of the privilege. If Victor wants to testify against Joe, he can BUT the state can’t force him to if he doesn’t want to. If Victor wants to testify, the only thing Joe could prevent is something Joe told Victor which was not part of any action that Victor could separately claim to have knowledge about (i.e. having “seen” it rather having it told to him). A lot of times (though I’m unclear about DC) the marital privilege as to confidential communications is destroyed if a third party is present and hears the communication. So if Victor happened in that night, and Joe managed to greet him at the door so he saw nothing, told him what happened and then Victor LEFT, perhaps Victor would be safe from prosecution, but here, not only did he become complicit in the cover up (at least), he would have independent knowledge about what he saw.

        Still, it wouldn’t surprise me at all, given the 6 month old law change that Joe would have known about, if Joe hadn’t purposely misstated it when explaining it to Victor. As in “Honey, you can’t testify against me no matter what and the police can’t hold it against you – so go ahead and call 911”.

  8. Nick
    04/25/2009 at 11:58 PM

    omg the marital privilege, I hadn’t even thought about that

  9. Anon. in Arlington
    04/26/2009 at 12:42 AM

    This would be a nasty divorce!

  10. Fascinating
    04/26/2009 at 11:34 AM

    It’s interesting to propose these scenarios. However, I am going to assume that since the three of them are still living together (right?), that they are all aware of each other’s lawyer’s strategies. And it seems as if they are holding together as a “family” on their story about that night in 2006.

    • CDinDC
      04/26/2009 at 11:44 AM

      It was reported by the editors and another poster (SDI?) that Dylan has moved out of the 16th Street apartment.

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