Speak No Evil — Updated x 2: WaPo & New Video, Bernie Grimm Misspoke?
The most telling moment in Friday’s status hearing may have well happened before the judge even entered the chamber.
Defendants Zaborsky, Price and Ward seemed in good spirits outside Room 318, huddled with defense attorneys Robert Spagnoletti, Bernie Grimm, Thomas Connolly, David Schertler and several of their supporters.
Taking their seats in the courtroom, the court reporter leaned in and asked, “Mr.Price, Ward and Zaborsky won’t be speaking much?” Bernie Grimm shot back, “If we can help it, they won’t say a word.” Joe laughed. And that pretty much sums up the day’s hearing and the larger defense strategy as it takes shape.
Judge Frederick Weisberg gaveled the hearing in at 2:05 with what he called “good news”; namely the slimming down of contested items from a fat document to a relatively thin one.
Spagnoletti, on the clock for Ward led off with “Item C” arguing the government produce the radio transmissions of the responding emergency personnel, saying given the critical time line in play – and questions when Robert might have received those multiple puncture wounds – the defense must have the complete radio chatter.
AUSA Patrick Martin, subbing for the absent Glenn Kirshner, suggested that some of those personnel may be witnesses at trial, and therefore the transmissions should not be subject to blanket discovery. Weisberg, armed with the same good cheer but slightly less patience than before, prodded the defense to provide more specifics rather than expect the wholesale transmissions.
Next, “Item E” – documents requested by the defense that have been redacted by the government. Namely, the MPD officers’ handwritten notes from the night of the murder. The redactions, argued Spagnoletti, were specifically of words by the defendants, putting the defense at a serious disadvantage. Martin suggested the specific redactions were actually those of witnesses characterizing words by the defendants – Officer Diane Durham anyone? In the end, both sides agreed a “discreet number” of documents were in play, and the government would produce them by next Wednesday.
Price counsel Bernie Grimm was next, helming the complicated task of the DNA testing and documentation. He addressed “Item D” – the list of potential expert witnesses the government may call, their qualifications, and what they may say. Martin argued that “…about 95% of the experts names…” have already been identified, as has their likely testimony based on their reported work.
With little disagreement, Judge Weisberg prodded both sides to step up their game on producing their respective experts.
Next, Grimm turned up the heat a notch on the subject of evidence and testing. “Our tests are in a holding pattern,” argued Grimm, all but saying the government was keeping the defense from access to key pieces of evidence, and raising the specter of potential biased testing procedures. Grimm admitted the defense team has hired multiple evidence experts, on the East and West Coasts.
In this matter Martin seemed a bit off his game, relying more on citing the government’s positions and intentions rather than vigorously promoting the government’s position. Weisberg entertained both sides of the question, but it was Grimm who won the point saying that out of the 270 total pieces of evidence gathered, the defense only needed 26.
(UPDATED): It was at this point in the discussion, and for the second time, we heard Bernie Grimm refer to this as a “homicide case.” This interview with WRC-TV’s Michael Flynn following the April 24 status hearing, was the first instance. Maybe Bernie misspoke or maybe he’s planning ahead.
Attorney Connolly representing Victor Zaborsky asked for a thirty second conference with Martin to see if it could be worked out. “Connolly’s the conciliator…that’s good,” joked Weisberg. In the end, no deal, leaving Weisberg to say he was willing to protect the defense’s position on this question, pressing both sides to “…work it out.” In the end, the defense will be able to inspect the contested evidence and, if further tests are desired, an order would be worked out.
Connolly then took command; the defense team saved the best for the last. Repeatedly calling the allegations of torture and use of paralytic agents “outrageous”, he said the government had failed to conduct the tests on the remaining sample of Wone’s blood that is left – a very small amount – in violation of the May 22nd agreement. “Choose the eight or nine agents to test for, and let’s end this,” he said, allowing that the defense again would agree to allow the government consume the remaining 3-4cc’s for any tests they wished.
Responded Martin: “If we had a 100 cc’s left, things would be different.” There are hundreds of potential paralytic agents he said, and the prosecution does not want to conduct such a high-stakes search for the proverbial needle in a haystack. Weisberg at one point said, “I’m not asking for more work… I’d like you two to work this out.”
“Fail to test at your own peril,” Weisberg warned Martin. The judge’s patience waning, said he would not allow the government to present a case for using paralytic agents with the current lack of evidence.
While waiting for the hearing room door to be unlocked, Schertler and Connolly acknowledged and greeted us, both in good spirits and friendly.
Unlike past status hearings, there were empty seats today inside Judge Weisberg’s hearing room although the defendants’ supporters were numerous, both men and women, younger and older, including the biological mother of Joe and Victor’s children, Kim Musheno. Notably absent was Price’s younger brother, Michael. Kathy Wone and her counsel Ben Razi of Covington made their way in shortly before the proceedings began.
Before the gavel fell, the court bailiff asked for all spectators to turn off their cell phones and Blackberrys, scotching our plans to provide a live twitter feed. We pulled the plugs and undeterred excused ourselves several times during the hearing so we could file updates from the hallway.
The seating arrangement up front had Price in the middle, between Zaborsky and Ward. All were dressed in various shares of dark suits, and throughout the hearing remained focused. Joe sporting a pink tie, seemed the most engaged, taking notes throughout; Victor closely watching the action and Dylan sober and face forward. The only reaction out of place came about ten minutes into arguments with the first discussion of the possible paralytic injections: Joe appeared to grow agitated for a short time…just a little twitchy.
Check back for updates here through the weekend. Look for a Monday post on motions filed this summer including the statement of Diane Durham, the first MPD officer on the scene.
Judge Weisberg scheduled the next status hearing for Friday, November 6th at 2:00pm. We’ll be on site and hope to get clearance from the judge to allow for real-time updates from his courtroom.
As usual, Legal Times’ ace reporter Mike Scarcella is first to file.
(UPDATED) The Washington Post treatment in the Saturday edition is Keith Alexander’s piece found on page B-3 of the Metro section in the Regional Briefing.
Joe Price, David Schertler and Bernie Grimm depart the Moultrie Courthouse:
Zaborsky and Ward greet and talk with supporters a block away from the courthouse steps:
(UPDATED) Additional Sights:
Dylan Ward leaving the courthouse with supporters:
Joe Price leaving courthouse withcounsel Bernie Grimm and David Schertler:
–posted by the Editors