Full Court Press

U.S. v. Joseph Price, Dylan Ward, Victor Zaborsky    April 24, 2009 

We’re a week away from the next status hearing on the criminal case against the Swann Street roommates.  To understand what may be on next Friday’s agenda, the transcript from the April 24th hearing should provide some indication.

A 40-page read covers the  45 minute hearing, all except for a 5 minute ex parte chat between Judge Frederick Weisberg and the defense teams.

April’s hearing concerned the missing Blackberry and the unsent emails, DNA testing that remains to be conducted, what constitutes a conspiracy, whether Michael Price had a key to 1509, and the relaxing of release conditions.

Judge Weisberg gave the government and defense homework assignments, due today – work together and narrow down the 105 discovery  disputes.

“I would like a pleading by the (May) 15th not to exceed ten pages on each side that tells me — that identifies the remaining discovery disputes and the authorities each side claims in support of their positions that it either is or is not discoverable…

And I hope the list is down to a managable number… and I’m limiting that to Rule 16 discovery, not Brady discovery.  If there are Brady issues, we have to litigate that seperately I guess.”

Some may find pages 32 & 37 heartening;  Judge Weisberg talks about setting a trial date.

“And I’m — I’m ready at any time to set a trial date by the way, but I think the Innocence Protection Act (IPA) and testing of biological material really needs to happen first as we discussed at the last hearing, and I’m not sure we’re ready to do that until the next hearing…. 

But – it’s a question of whether this (IPA) is preventing us from setting a timely trial date which I really don’t want to lose sight of.”

What exactly does timely mean after almost three years?

The next status hearing is at 2:00pm on Friday, May 22.  Room 318 of the Moultrie Courthouse  fills up fast so get there early.

And a homework assignment for the law jocks: Walk us through the differences between Rule 16 and Brady discovery?  Wiki has this, but what might be Brady material in this case?

For those who’s PCs can’t handle Scribd, the transcript is here.   

-Craig

42 comments for “Full Court Press

  1. Ex Swann Dude
    05/15/2009 at 8:51 AM

    FIRST!!!

    “The next status hearing is at 2:00pm on Friday, May 22. Room 318 of the Moultrie Courthouse fills up fast so get there early.”

    Define “early” please …

  2. Fascinating
    05/15/2009 at 9:57 AM

    On April 24, I walked into the courtroom at 9:30, thinking it would start at 9:45, and it was standing room.

    I probably would have had a seat if I’d arrived around 9:15 or so…

  3. CDinDC
    05/15/2009 at 2:28 PM

    I read through the proceedings transcript….boy, they spent an enormous amount of time discussing that blackberry. Ridiculous. Even if Robert DID send those emails, it just means that the crimes were committed in less time. Doesn’t mean AT ALL that the defendants weren’t able to commit a criminal act in that amount of time, because a criminal act DID occur. 1 hour 20 minutes or 5o minutes. Robert Wone was murdered and a crime was concealed at 1509 Swann Street.

    I think the defense is wasting time on the Blackberry.

    Did anyone else get the impression from reading the transcript that “The Court” (Judge Weisberg) was harsh with the prosecutors?

    • 05/15/2009 at 6:11 PM

      Harsh with the prosecutors? No. But Weisberg probably won’t forget Schertler throwing the Judge’s later-qualified use of the word “mysterious” back into his face.

      • CDinDC
        05/15/2009 at 6:30 PM

        I had to laugh when I read that. It also tickled me when the Kirschner said “just because Defendant Price said it doesn’t make it so.” May we remind the court that the defendants may very well LIE?

  4. 05/15/2009 at 5:51 PM

    The defense is eager to have some blood samples tested. Likely, on blood found in the backyard drain, the clothes dryer, in Dylan’s room and/or on floors or walls. The defense already knows that all of this blood will prove to be from household members. Likely intentionally spilled there that fateful August evening. A ploy — like the Blackberry emails — to confuse and complicate potential investigations. One wonders which knifes the perps used to cut themselves.

    • Lance
      05/15/2009 at 9:15 PM

      Wow, that’s a pretty far-out theory even for you, John. After killing Wone, they spread their own blood around so that investigators would…find blood and suspect them? Seriously?

      • 05/17/2009 at 4:56 AM

        Whoops. You got me! And of course, those two unsent Blackberry emails could only have been composed by Robert.

  5. 05/15/2009 at 6:06 PM

    One of the two emails that Robert supposedly drafted was “to a work colleague confirming lunch plans for the next day.” Strange how in the April 24th hearing the intended recipient of this email is still unaccounted for, because of her/his “shortened nickname.” Page 20, line 10, “… the colleague and the lunch date. Do we know who that is, and do we know that he didn’t get it either?”

    Probably because Robert never emailed to any remotely-similar email address in his life, as it doesn’t exist.

    • CDinDC
      05/15/2009 at 6:24 PM

      Yeah, you would think the intended recipient would have spoken up. Seems that as soon as the next day, someone would have said “Robert and I had planned to have lunch together.” Surely, Robert’s friends and associates have heard about the missing Blackberry and messages by now.

  6. 05/15/2009 at 7:12 PM

    i wondered what the look was on needham’s face when he got the bill for the hearing and realized he was financing two lawyers to sit there on dilweed’s behalf. must be nice (if not depressing)to be 40 and on dad’s bankroll.

    • 05/15/2009 at 8:35 PM

      I think it was probably like the look that would be if he was siting on your face. Dear.

      • 05/15/2009 at 8:52 PM

        dilwead maybe; not needham. love, mr. grisham.

    • Lance
      05/15/2009 at 9:17 PM

      I’d like to ask the editors to delete this post, which contains (a) unfounded speculation about a defendant’s family and finances and (b) deliberately insulting language.

      • 05/16/2009 at 7:53 AM

        hi lance-

        the comments about family finances being used for the defense comes right from the defendant’s own court filings. please re-read ward’s filings when he was still in jail, and trying to get out.

        • Lance
          05/16/2009 at 8:47 AM

          OK, I’ll grant that it does say that the brunt of the costs are being borne by his parents. That makes your comments not unfounded, merely irrelevant and insulting. If I were on trial, I believe my parents would help me with my legal costs as well. There’d be no “look on my father’s face”; there’d be no “on his bankroll” in general.

          What you paint as a pathetic 40-year-old using his parents’ money to their dismay, I see as a man who maintains close relationships with his family, who works jobs that matter to him rather than jobs that pay highly, who has a family willing to help him morally and financially when he’s faced with problems that his modest lifestyle can’t cover.

          If you have any evidence at all that Dr. Ward is displeased with having to help his son, please do share it. If you have any evidence that Dr. Ward is somehow surprised by his son’s legal representation, again, let us know.

          • 05/16/2009 at 9:33 AM

            i have no such evidence; only asking the questions that interest me. many people, myself included, may not be pleased to get an invoice from 2 attorneys covering a pre-trial discovery conference; when 1 would be able to cover the conference. i am simply wondering needham’s reaction to the double-staffing, particularly at big-city rates. good week end, lance.

            • Lance
              05/16/2009 at 5:40 PM

              Except to ask what happened when he “realized” that there were two lawyers only makes sense if he didn’t already know that. (It’d be like saying, “I wonder how he reacted last year when he realized he has a medical degree,”) That’s part of what I was objecting to–you weren’t just asking “how does Dylan’s father feel about this”, but rather “given that Dylan’s father was surprised by the bill, I wonder how he felt about it.”

              • CDinDC
                05/16/2009 at 6:05 PM

                Speaking of horses….this one is dead.

  7. 05/15/2009 at 9:28 PM

    Why Lance? Please explain. What “deliberately insulting language” did we use?

    • Lance
      05/15/2009 at 11:18 PM

      How about “dillweed”? Would it be OK if I start referring to XXXXXXXXXX as XXXXX? Or XXXXXXX?

      -redacted by the editors

      • Nick
        05/15/2009 at 11:25 PM

        well that’s a bad analogy

        • Lance
          05/16/2009 at 8:36 AM

          I’m not sure I see why.

          • Nick
            05/16/2009 at 10:07 PM

            Well Mrs. Wone has lost a husband, which is a lot worse than anything the defendants are going through. Try to have some class.

      • Lance
        05/16/2009 at 11:04 PM

        Wow, that’s impressive. I asked if I could refer to Kathy Wone as (mildly offensive name), and it gets deleted. But “dilweed” is apparently still a perfectly acceptable way to refer to Dylan Ward.

        Look, I don’t want to be offensive. I have no actual desire to refer to anyone with an offensive name. But I want to stress that the defendants, innocent as they are until proven guilty, still deserve some basic human respect.

        • 05/17/2009 at 5:20 AM

          “Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices—mint, dillweed and cummin. But you have neglected the more important matters of the law—justice, mercy and faithfulness. You should have practiced the latter, without neglecting the former.” — Matthew 23:23

          • Spike
            05/17/2009 at 1:05 PM

            It seems to me the point Lance was trying to illustrate is it’s either cool to make up nicknames for people, or it’s not. I don’t think the deciding factor of who gets to be listed with a nickname should be what the person has “gone through.”

            And believe you me, I mean zero disrespect to Mrs. Wone. I say this as somebody who was a huge fan of SPY magazine, which regularly referred to “short fingered vulgarian Donald Trump” and the like.

  8. CDinDC
    05/17/2009 at 1:42 PM

    But I digress….

  9. Themis
    05/17/2009 at 3:26 PM

    Aside from the specific materials identified by Brady and its progeny (Bagley, Kyles, et. al), there is no constitutional right to discovery in criminal cases (unless you live in Florida where depositions are available in criminal cases).

    Brady material is any material that is or is reasonably likely to lead to other evidence that is exculpatory, i.e. tending to completely or partially negate guilt of the accused (innocent vs. guilty of lesser crime) or to mitigate possible punishment. Material that would tend to impeach a prosecution witness or to support an affirmative defense (voluntary intoxication, insanity, content, entrapment, etc.) is subject to disclosure under Brady.

    Rule 16 provides for limited statutory discovery. It allows the defendant to obtain copies of documents belonging to him or obtained from his person or property, to inspect and potentially test physical evidence, to obtain copies of any statements he has made, and a few other things that I cannot think of off the top of my head.

    What most people don’t realize is that defense attorneys may also ask the court to issue subpoenas for witnesses or the production of documents in the hands of third parties. This is usually done ex parte. A party, for example a cellular service provider, may comply or move to uash the subpoena. And, of course, the third party can contact the prosecution and report the subpoena so the prosecution knows where the defense is headed with its investigation.

    What neither the prosecution nor the defense can do is tell a witness NOT to speak to the other side. The most that either side can say is that it is up to the witness to cooperate if s/he wants to. Under the ethical rules the government or defense must contact a party who is represented by an attorney through that attorney.

    At trial, the defense can ask for Jencks material, which is basically any prior statements made by the witness. But there is no right to pretrial disclosure…unless the statement is exculpatory.

    • CDinDC
      05/17/2009 at 6:45 PM

      So, any evidence that is FAVORABLE to the defense is required under Brady.

      I read elsewhere that materials that do NOT fall under Brady are “allegations that cannot be substantiated.”

      So, wouldn’t the Blackberry NOT fall under Brady, because it is an allegation that canot be substantiated? It is merely a fact CLAIMED by the police officer, but it cannot be substantiated because the Blackberry is missing.

      • Themis
        05/17/2009 at 8:30 PM

        Whether or not it could be substantiated is something to be hashed out pretrial via a motion in limine or for a jury to decide. People can disagree about the inferences to be drawn from the evidence, but it is difficult to say that the information has zero potential exculpatory value.

        At this point, the real value of the “lost messages, lost blackberry” is that it is evidence of a poor, sloppy investigation, which itself suffices to provide reasonable doubt in some cases, though necessarily this one.

        There is a lot of commentary in Brady cases about why prosecutors should err on the side of disclosure, the primary reason being that prosecutors don’t tend to view the evidence in a defense friendly manner and have no idea what the ultimate theory of defense might be. AG Holder has articulated this very policy, although he would have to recuse himself from direct involvement in this case.

  10. Michael
    05/18/2009 at 12:30 AM

    Thank you Themis for an excellent summary of Brady and other evidence matters. We are truly fortunate to have you as a contributor.

    – Michael, co-editor

  11. Bea
    05/18/2009 at 1:02 PM

    Themis is spot-on. Thanks!

    I apologize in coming back to this thread – was away on a personal matter – but two things struck me.

    (1) Kathy Wone NEVER received the email. That’s a new fact. Not surprising since the emails were described as “not sent” but it confirms it.

    (2) When asked about other overt acts of conspiracy by the judge, Kirschner responded “And there may be some more that frankly we may have to start out with an ex parte offer to the Court recognizing that it will soon become public knowledge.”

    I am hoping that this info is something we’ve NOT hashed out on this site, though it could well be an allegation that the emails were orchestrated as part of the cover-up given that the timing would likely be AFTER Robert died (based on the coroner’s report) and the fact that Kathy Wone did not receive the email (who would write and NOT hit send then proceed to write another one to a colleague – if Robert was the type to write the email, why would he “hold” it since it’s far easier to hit “send” than to save it in drafts, noting he wrote another shortly thereafter).

    Too the prosecution alluded to investigations of the “colleague” and he was quick to say that he was not in the position to make a statement. It could be that the investigator simply didn’t recall the email address/”nickname” specifically, or that he did but the “nickname” didn’t spell out the email address. I suspect they’ve searched Robert’s laptop and other communication devices to try to find this “nickname” but may be holding out for confirmation even if they have leads.

    If there IS such a person, it would likely NOT be a “reply” to an invite as that would be stored in his regular computer as well, not just his Blackberry, so we’re back to the possibility that there’s something more telling in there. What comes to mind (without much consideration) is that it’s not a real address or it’s possibly someone who PRICE and Wone both knew – and Price would know that “nickname” as well. If they’ve tracked down THAT, then his/her testimony would be very valuable – (1) that he/she never received the email; and UNLIKE Kathy Wone, that he/she would not have expected a late night invitation for lunch from Robert, that it would have been out of character. And that PRICE knew his email address too.

    This is all a stretch, but I’m trying to keep it with the realm of “reasonableness”. If it was an orchestration by Price, that decision to “hold” to send, and coming up with both, then it’s looking like at least at 11:07 that the stone was set and Price himself was addressing the cover-up (highly unlikely that Ward or Zaborsky would be as adept in creating a “colleague” for Robert to dine with).

    I hope that this can be resolved, for whichever party it assists, though my gut says that since Robert was likely dead by then, it should a cold-blooded and clear-thinking Price post-murder.

    My two cents.

    • CDinDC
      05/18/2009 at 3:00 PM

      Bea says: ” it’s not a real address or it’s possibly someone who PRICE and Wone both knew – and Price would know that “nickname” as well.”

      Perhaps upon arrival at Swann Street, Robert, Joe et al had a conversation….chit chat….Robert mentioned having a lunch date “tomorrow” with a friend and mentioned him/her by nickname.

      The murdered ensues, Joe/someone orchestrates the email based on what Robert said.

  12. Bea
    05/18/2009 at 1:04 PM

    Whoops – substitute “showed” for “should” in last full paragraph.

  13. David
    05/18/2009 at 10:08 PM

    An unsent ‘draft’ message might be written to a person who might be monitoring one’s email account, either to transmit information (or disease) to the observer, or to make a threat without making a threat (how can you be accused of making a threat against someone that you don’t know is listening?), or to do any number of other things that some would dislike because they generally represent the theory ‘heads I win, tails you lose, and how dare you interrupt my song.’

  14. CDinDC
    05/18/2009 at 10:11 PM
  15. Themis
    05/18/2009 at 10:41 PM

    The upshot of this entire blog is the clash between gut conclusions and the reasonable doubt necessary for a conviction.

    I have my own conclusions based upon initial information.

    But even in my own cases where I have all of the discovery, have conducted my own investigation, and have had hopefully (and I lose the term loosely) candid conversations with my client, I never publicly comment on potential guilt absent a legal confession and the permission of my client.

    Reasonable doubt is a tricky proposition of law, usually phrased as the same level of certainty one would make in deciding to marry, make an investment, take out a mortgage, etc. I’ve always thought that definition confusing, but am unable to come up with a better one. Like Justice Stewart’s definition of obscenity, I know it when I see it.

    Nevertheless, our criminal justice system (in all but 3 jurisdictions)hinges upon twelve jurors agreeing that the prosecution has proven all elements of a specific criminal allegation in an indictment (for felonies) beyond a reasonable doubt.

    Because I practice indigent criminal defense, I have my own thoughts as to reasonable doubts.

    As for non-lawyers, I think the issue is the level of proof that they would find sufficient to convict their nearest, beloved relative or friend. Just because someone is a stranger and accused of a horrific crime does not lower the level of proof mandated by the constitution.

    I have staked my professional career on the concept that all, regardless of means, are entitled to a competent defense before a competent, impartial judge and that the person who prosecutes the charge is driven to see that justice is done rather than a conviction obtained by any means. I have hoped and continue to hope that an educated citizenry is committed to the same concept.

    Any homicide is tragic, especially an intentional homicide. Black, brown, yellow, white. Socialite, professional, artisan, prostitute, pimp. Minority upon majority; majority on minority. Yet the prosecution of the most heinous of homicides cannot justify the subversion of our criminal justice system as exemplified by the constitutional guarantees set forth by the founding fathers (and you, too, Abigail, in spirit if not in formalities).

    Unless pleas are unexpectedly entered, the evidence such as it is and has been recorded will be aired for all to see and from which all can make a conclusion (though only that of the jury and/or judge will have legal relevance).

    Even though I was only a VISTA Volunteer at the time whose only knowledge of criminal law derived from being commissioned as a campus cop (and certain familial experiences I’d rather forget), I can still remember where I was when I hear the O.J. verdict on NPR. I can only imagine what it will feel like to hear or read of the verdict in this case . . . for those on both sides of the fence.

    • Craig
      05/19/2009 at 9:11 AM

      Good stuff. Thanks Themis.

      I sat on a murder one jury a few years back. Allegedly a crack dealer pumped a dozen 9mm rounds into his supplier to settle a $300 balance. The crime scene looked like the set of a Tarantino film.

      The Govt had a weak case with lousy witnesses and little hard evidence. An interesting aspect was the judge’s instructions to us and his definition of reasonable doubt. Reasonable doubt does not mean no doubt, but what’s reasonable to the average person. A rather abstract concept.

      Are the doubt thresholds different/higher for a murder case vs. conspiracy? Or is reasonable doubt the same no matter the charge?

      • CDinDC
        05/19/2009 at 9:38 AM

        It sounds like if you sit back and say “well, I donnnn’t knoooow-ooooo.” That would be, pretty much, reasonable doubt. [shudder]

        I would hope when murder or conspiracy surrounding a murder is involved, the threshold would be higher. In the very least, I would hope the jurers examine the evidence with a very keen interest.

        Out of curiosity, Craig….what was the verdict of this case?

        • Craig
          05/19/2009 at 10:03 AM

          Hung jury / mistrial.

          • CDinDC
            05/19/2009 at 10:33 AM

            Yikes.

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