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.”
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.”