You Did It…

Greek Love

If murder charges were pending against the Swann Street defendants, maybe the legal wranglings would seem more clear cut to the lay person.  Those trained in the law have the insight, but to the rest of us it’s all clear as mud.

Judge Frederick Weisberg further confused us at the April 24th status hearing when he spoke to the vagaries and abstract nature of the conspiracy charges.  Perhaps Weisberg was signaling the uphill battle that may lie ahead for Assistant US Attorney Glenn Kirschner and the prosecution.  As described by the Legal Times Mike Scarcella:

Weisberg called the Wone case “peculiar” because the government seems to accuse the defendants under the theory “you did it and you won’t tell us you did it.”
Themis. Marble, c. 300 BC.

Themis. Marble, c. 300 BC.

So what does this mean for the case when it goes to trial?   We haven’t a clue, but when it comes to inside baseball we’re fortunate to have a strong roster  and a deep bench.

To help us navigate through the complexities of  conspiracy prosecution we put the question to one of wmrw.com’s regular contributors who goes by the name of Themis

The Goddess of good counsel will walk us through how this may all play out.

And yes, this will be on the exam.

 

 

 “The defendants are each charged with conspiracy to obstruct justice (count 1), obstruction of justice (count 2), and tampering with physical evidence (count 3).  The maximum possible terms of imprisonment on each count are 5, 30, and 3 years respectively, though the actual sentences likely would be substantially less in the event of conviction(s).

“That is because the judge would consider the each defendant’s lack of criminal history, contributions to the community, likelihood of recidivism, certain other characteristics of the defendant, and relative role in the offense(s) to arrive at a sentence that is sufficient but not greater than necessary to meet the goals of protecting the public, deterrence, and just punishment.

 “What is worth noting is that the maximum possible punishment for the conspiracy count is 5 years, while the maximum possible punishment for the obstruction count itself is 30 years.  Moreover, even if the defendants were found guilty on all three counts, the court likely would impose concurrent, rather than consecutive, sentences.

 “So why is the defense so focused on the conspiracy count?  Because, as I mentioned in an earlier post, the conspiracy count allows the government to get certain statements by the defendants into evidence that would otherwise be admissible only against the declarant.  Statements made by a co-conspirator in furtherance of the conspiracy are admissible evidence as to the guilt of all conspirators. 

 “What is a criminal conspiracy?  An agreement, express or implied, to commit an unlawful act by lawful means or to commit a lawful act by unlawful means. 

“Here, the defendants are alleged to have entered into an agreement to impede the investigation of Mr. Wone’s death by making false statements to police and other government officials involved in the investigation and manipulating the crime scene.  The criminal act is the agreement itself. 

“Thus a person may be found guilty of conspiring to obstruct justice and obstruction of justice and receive separate punishments for each offense.  To obtain a conviction on the conspiracy charge, the prosecution must prove the existence of the agreement and that one of the defendants committed one of the overt acts alleged in the indictment. 

“If the prosecution proves the existence of the agreement and one of the overt acts, all three can be found guilty of conspiracy regardless of whether he was the one who actually acted in a manner to carry out the goal of the conspiracy.  From a practical standpoint, it is worth noting that statements made to law enforcement are often incorrect regardless of the intentions of the person giving the statement.

 “Why might the judge express skepticism about the prosecution’s ability to prove the conspiracy count?  Based upon his comment, it appears that he may not be receptive to the argument that the defendants must have agreed to impede the investigation because their accounts of what happened are inconsistent with each other, the physical evidence as found by police, and the crime scene that the prosecution believes should have been found by police in light of the autopsy. 

“Although there is no difference between circumstantial and direct evidence in the eyes of the law, jurors are not supposed to pile inference upon inference in assessing the evidence.  For example, the jury concludes that it must have been raining because the defendant was seen wearing a raincoat and carrying a wet umbrella on the day of the alleged offense.  Putting that inference together with the fact that it was sunny when the defendant left his home, the jury infers that he must have known it was going to rain. 

“Putting that inference together with the fact that the umbrella and raincoat made it difficult for any witnesses to positively identify the defendant, the jury concludes that he must have planned to commit the alleged offense while it was raining in order to avoid detection.  I could go on, but you get the point.

 “As for litigating the sufficiency of the evidence supporting the conspiracy, the defendants could move to dismiss the charge pre-trial or move for a judgment of acuittal at the close of the prosecution’s case in chief, the close of the defense’s evidence, or the close of all evidence.  The court may dismiss pretrial if the allegations in the indictment are facially insufficient to establish the elements of a conspiracy. 

“The court may grant a motion for acquittal if no jury could find that the prosecution’s evidence proves beyond a reasonable doubt all of the elements of the charged conspiracy.  Judges rarely dismiss charges or grant motions for acquittal.  When they do, it is usually because the prosecution has overreached.  However, the prosecution often will move to dismiss the charge if its evidence is that weak.

“Finally, I would point out that it is not clear from the judge’s comment if he questions just the conspiracy charge or the entire theory of the case put forth by the prosecution and hence the sufficiency of all counts.  But in any event, I would not put too much stock in a single offhand remark.  He may just be signaling to the prosecution that it needs to tighten up its theory and narrow its allegations. 

 “A caveat:  this is the type of answer I would give to a non-lawyer friend over lunch.  It’s not a formal legal analysis and doesn’t consider every possible alternative explanation of the judge’s remarks or a technical discussion of conspiracy.  D.C. has pattern criminal jury instructions that are not available to me since I practice indigent criminal defense in another jurisdiction.  I would have to abuse my access to Westlaw or Lexis to look them up since they do not seem to be posted on the web.  However, you might want to ask if someone out there has access and can post the conspiracy and obstruction instructions for readers to review.  That way everyone will have some idea of how a potential juror would be instructed on the law.

 “Also, a couple of additional observations.  The Fifth Amendment prohibits compelled self-incrimination.  Accordingly, no one is obliged to confess to a crime.  Though not rooted in a specific constitutional right, the law generally doesn’t require anyone to report the ciminal wrongdoing of another either or actively assist in a criminal investigation.  There are exceptions, such as laws requiring medical and teaching professionals to report suspected child abuse.  However, the exceptions are just that–exceptions to the general rule. 

“What someone cannot do, whether he is a suspect or a mere witness, is intentionally mislead authorities who are investigating a crime by making false statements or actively and intentionally thwarting access to evidence or altering or destroying evidence.  In reality, this happens all the time and is rarely prosecuted.  So the judge may looking at the charges and questioning whether the defendants are being charged with sins of omission rather than sins of commission, if that makes any sense.”

-the Editors

 

40 comments for “You Did It…

  1. 05/10/2009 at 11:43 PM

    So you mean Dilwead, Joe, Vic and all the others now go free?

    • Lance
      05/11/2009 at 12:11 AM

      (a) That’s not remotely anywhere near what the post means. The post means: there will be legal issues ahead. That’s it. No one has decided, or even predicted, that the defendants will go free.

      (b) His name is Dylan. Dy-lan. There is still no need for personal insults directed at the not-yet-proven-guilty.

      • Friend of Rob
        05/11/2009 at 1:41 PM

        You’re right, that’s Master Dilwead to Joe.

  2. 05/10/2009 at 11:43 PM

    So you mean Dilwead, Joe, Vic and all the others now go free?

    • Lance
      05/11/2009 at 12:11 AM

      (a) That’s not remotely anywhere near what the post means. The post means: there will be legal issues ahead. That’s it. No one has decided, or even predicted, that the defendants will go free.

      (b) His name is Dylan. Dy-lan. There is still no need for personal insults directed at the not-yet-proven-guilty.

      • Friend of Rob
        05/11/2009 at 1:41 PM

        You’re right, that’s Master Dilwead to Joe.

      • 05/12/2009 at 4:17 PM

        Sorry, I meant Dilbert.

  3. Fascinating
    05/11/2009 at 1:36 PM

    Thank you for this post. It is very clear and now I have a better understanding of some of the legal issues being faced here.

    • Lance
      05/11/2009 at 3:11 PM

      You know, I meant to say this before John’s post managed to piss me off so much by being offensive and wrong.

      But yes, seriously, thank you immensely to Themis for helping us understand what’s going on here, and thank you to the editors for asking him and posting his answer!

      • Anon. in Arlington
        05/11/2009 at 3:20 PM

        Yes – very complex issues that are clearly stated for a layman like me. Thank you Themis and Editors for this post.

        • anon
          05/11/2009 at 4:32 PM

          yup, thanks editors for keeping decorum up. maybe you should put a virtual age requirement up for posting so juveniles like j.g. can get the spanking they want and so visibly need

      • N.M.
        05/11/2009 at 5:14 PM

        “… and thank you to the editors for asking him and posting his answer.”

        “him” ?

        • Craig
          05/11/2009 at 5:35 PM

          She’s a she. A Goddess you know. 🙂

          • Lance
            05/11/2009 at 6:06 PM

            Seriously? How can you tell under all that draped toga? Anyway, I thought being a gay man was a requirement to post here!

          • Lance
            05/11/2009 at 6:08 PM

            …and, hey, wait a minute. If “She Did It” is allowed to refer to each of the defendants as “she”, how am I not allowed to call Themis “he”? Sheesh!

            (Er, I think what I mean is: sorry ’bout that, ma’am.)

            • Friend of She Did It
              05/11/2009 at 8:37 PM

              easy there, darling lance. i haven’t posted about the girls in some time.

              i am still patiently waiting the thread on the orbit of ms. dilwead ward — please, editors? love, all.

            • Bea
              05/12/2009 at 2:22 AM

              We’re all sisters, Lance.

  4. Fascinating
    05/11/2009 at 1:36 PM

    Thank you for this post. It is very clear and now I have a better understanding of some of the legal issues being faced here.

    • Lance
      05/11/2009 at 3:11 PM

      You know, I meant to say this before John’s post managed to piss me off so much by being offensive and wrong.

      But yes, seriously, thank you immensely to Themis for helping us understand what’s going on here, and thank you to the editors for asking him and posting his answer!

      • Anon. in Arlington
        05/11/2009 at 3:20 PM

        Yes – very complex issues that are clearly stated for a layman like me. Thank you Themis and Editors for this post.

        • anon
          05/11/2009 at 4:32 PM

          yup, thanks editors for keeping decorum up. maybe you should put a virtual age requirement up for posting so juveniles like j.g. can get the spanking they want and so visibly need

      • N.M.
        05/11/2009 at 5:14 PM

        “… and thank you to the editors for asking him and posting his answer.”

        “him” ?

        • Craig
          05/11/2009 at 5:35 PM

          She’s a she. A Goddess you know. 🙂

          • Lance
            05/11/2009 at 6:06 PM

            Seriously? How can you tell under all that draped toga? Anyway, I thought being a gay man was a requirement to post here!

          • Lance
            05/11/2009 at 6:08 PM

            …and, hey, wait a minute. If “She Did It” is allowed to refer to each of the defendants as “she”, how am I not allowed to call Themis “he”? Sheesh!

            (Er, I think what I mean is: sorry ’bout that, ma’am.)

            • Friend of She Did It
              05/11/2009 at 8:37 PM

              easy there, darling lance. i haven’t posted about the girls in some time.

              i am still patiently waiting the thread on the orbit of ms. dilwead ward — please, editors? love, all.

            • Bea
              05/12/2009 at 2:22 AM

              We’re all sisters, Lance.

  5. Craig
    05/11/2009 at 10:45 PM

    We’re working on our Dylan post… And we all may be learning a few new things about the three roomies before not too long.

    • 05/12/2009 at 7:50 AM

      fabulous tease, craig. i’ll be watching you.

      • Craig
        05/12/2009 at 10:26 AM

        SDI – It’s not just us. Smarter people than us are paying more attention to this case now.

  6. Craig
    05/11/2009 at 10:45 PM

    We’re working on our Dylan post… And we all may be learning a few new things about the three roomies before not too long.

    • 05/12/2009 at 7:50 AM

      fabulous tease, craig. i’ll be watching you.

      • Craig
        05/12/2009 at 10:26 AM

        SDI – It’s not just us. Smarter people than us are paying more attention to this case now.

    • Fascinating
      05/12/2009 at 11:43 AM

      I’m all ears (and eyes)!

      • CDinDC
        05/12/2009 at 11:59 AM

        Meee tooo!

  7. Themis
    05/12/2009 at 9:42 AM

    What would be interesting to know is whether the defendants were called to testify in front of the grand jury and, if so, whether they invoked the Fifth. They would have to do so if they did not want to testify. While an individual generally doesn’t have to actively cooperate in a law enforcement investigation, he does have to testify if called before a grand or petit jury absent a valid privilege. Does anyone know if grand jury proceedings are recorded in D.C. Superior Court?

    Just as a point of observation, a number of individuals with narcissistic personality disorder or antisocial personality disorder can’t pass up the opportunity to demonstrate that they are smarter than the cops or prosecution, thereby setting themselves up for potential perjury charges. Of course only a licensed mental health professional can diagnose such personality disorders after a competent examination.

    • CDinDC
      05/12/2009 at 11:59 AM

      Themis says: “Of course only a licensed mental health professional can diagnose such personality disorders after a competent examination.”

      But if the shoe fits…. 🙂

  8. Themis
    05/12/2009 at 9:42 AM

    What would be interesting to know is whether the defendants were called to testify in front of the grand jury and, if so, whether they invoked the Fifth. They would have to do so if they did not want to testify. While an individual generally doesn’t have to actively cooperate in a law enforcement investigation, he does have to testify if called before a grand or petit jury absent a valid privilege. Does anyone know if grand jury proceedings are recorded in D.C. Superior Court?

    Just as a point of observation, a number of individuals with narcissistic personality disorder or antisocial personality disorder can’t pass up the opportunity to demonstrate that they are smarter than the cops or prosecution, thereby setting themselves up for potential perjury charges. Of course only a licensed mental health professional can diagnose such personality disorders after a competent examination.

  9. dc_emily
    05/12/2009 at 3:23 PM

    Themis, I thought grand jury proceedings are meant to be secret and are not made public. How would they be available?

    • Themis
      05/12/2009 at 3:42 PM

      They are not made public in the usual course of business. However, the prosecution may request that the proceedings be made public if a witness perjures himself in his grand jury testimony and the prosecution wants to charge him with that offense. Usually, the evidence necessary to charge perjorious grand jury testimony takes time to develop. Think about the cases where a special prosecutor is appointed to investigate substantive offenses but only seeks indictment on obstruction or perjury charges in the end after months and years have gone by.

      In certain, rare circumstances, defense counsel may also be able to petition the court to release the grand jury transcripts. Without highly reliable and probative evidence of grand jury misconduct, defense counsel would be better off expending his energy whistling (or ****ing) into the wind.

      Even grand jurors’ identities are supposed to remain secret, and anyone who intentionally or recklessly leaks the information had better lawyer up.

      In any event my musings may, and likely are, immaterial. Not every jurisdiction records grand jury proceedings. And defense counsel likely put the kibosh on any suggestion of testifying in front of the grand jury. It’s not like any of the defendants has an airtight alibi or conclusive evidence of innocence. In the federal circuit in which I practice, if a petit (trial) jury disbelieves a defendant’s testimony, it can consider that testimony as substantive evidence of guilt; he lied on the stand so he must be guilty. Just one more reason for a defendant not to testify IMHO.

Comments are closed.