Past Is Prologue

What Sept. 11th’s Transcript Foretells of Nov. 6th’s Hearing

At 54 pages, the transcript of September 11th’s status hearing may seem a dry read.   “53 pages too much of legal jaw-boning…” perhaps.  But text is important.  Text is memory made real.  And like a great dramatic work, while drained of its live human electricity, the transcript provides clues as to the drama that lays ahead.

"...I remember..."

Mnemosyne, the Muse of Memory

Page 2, line 6, begins: “Good afternoon Your Honor, Patrick Martin for the United States.” A mere 13 lines later, same page, it’s down to business.  First item:  Mr. Ward’s defense attorney Robert Spagnoletti on the radio transmissions between the responding EMS techs and their crew.  David summarized the debate earlier, but turning to the transcript, page 7:

Mr. Martin: “…if we had a particularized request as to which information they’re actually trying to cull out, we could probably respond, as we have on number occasions in the past, with a specific response, but we’re not going to, writ large, provide recorded communication of a prospective witness to the defense.

Mr. Spagnoletti: I find it impossible to imagine how they can cull out some parts of this tape.

The Court: Well, they don’t know what you’re asserting is material to the defense. … (page 10) Well, the problem is they’re shooting in the dark.  They don’t know what’s in there, but they think it might be in there.”

A close reading the transcript  makes clear Judge Weisberg’s protection of what may be called “work product” – the intellectual process of either team with their witnesses and evidence.  While prosecution must produce any material that may be exculpatory, they’re not require to show all their cards as to what they know, and the story they’re creating around it.   Here Judge Weisberg opts for the cautious, small-c conservative application of authority.

More, after the jump.

A side note: page 8, line 10; discussing concerns raised by the defense that the prosecution may be hiding potential evidence under the cloak of witness likely to be called, Weisberg says “…I don’t sense that that’s what’s going on here.  I assume in good faith these are witnesses that are going to be called…”  Meaning: Weisberg telegraphing his confidence that the EMT’s, Officer Durham, and other early responders will be taking the stand.  Next – a telegraph about Officer Durham:

Page 11, line 20: Mr. Spagnoletti turns to those redacted documents we’ve discussed earlier.

Mr. Spagnoletti: “It’s a very small number of documents, and the reasons for all but one of them is that the redactions occur smack dab in the middle of recorded information about our client’s statements.

The Court: Can we stop on that one?  Because if it’s part of the defendant’s statement, if that’s what was redacted, words that the defendant gave, I don’t see how that could possibly be redactable.

Mr. Martin: You’re right; we don’t.  We produced those.  Now, there are, in the course of — I think specifically Mr. Spagnoletti is referring to notes taken by officers.  And, or course, in the course of taking notes of a defendant’s statement made, you know, put quotes around things or may say essentially, in substance, ‘This is what the defendant said,’ but may have a thought of their own or may have, you know a name of somebody else or address that needs to be followed up on.”

Two notes.  One: the prosecution is taking Officer Durham’s statement seriously.  And two: it sounds as though Kirschner’s office is continuing to pursue a murder investigation.

Mr. Spagnoletti: “…just to flash forward to what I think is going to happen at the end of this hearing, we are going to ask the Court for a further status in maybe early November sometime, by which we were hoping to have a firmer grasp on what we’re looking at.”

Judge Frederick Weisberg

Judge Frederick H. Weisberg

Here the torch is passed from Spagnoletti to Grimm…and debate less about work product – “…I don’t engage in intellectual banter…” (page 22 line 5) – and more about people and things.  Specifically what people will testify, and who can test what things for what substances.

The shift from attorneys also carries a shift if legal posture.  If Mr. Spagnoletti is arguing from cautious perches, Mr. Grimm appears to be leaping off them.  Page 20, line 20:

Mr. Grimm: If I sent a letter to my expert and I said, ‘What I’m looking for is third party person we think committed the crime, and we think his fingerprint is on this screen door that we sent you,’ and he doesn’t find it, that letter goes to Mr. Kirschner and Mr. Martin, yes.  … (page 21, line 6:)

The Court: Your point is if anything in the request shaped the outcome, and you would have no way of knowing the search was limited to produce that outcome, then you’re missing information that could be useful to you in the cross-examination.

Mr. Grimm: Right, search the – – relevant to the outcome or the non-outcome…

The Court: Do you have any authority?

Mr. Grimm: I can submit it to the Court.  There is no case that I’ve found that says that these types of communications are discoverable, although in some cases you see them turned over; some cases you don’t.

While avoiding the direct accusation, Bernie Grimm is clearly raising the possibility the prosecution has skewed its tests, and reporting of said tests.  Accusations the prosecution – and Judge Weisberg – were ready to swat back.  This debate continued into the ceaseless argument of testing items of evidence – a debate that has outlasted the summer.

Out of hundreds of pieces of evidence, it’s said by the defense that a scant 25+ are in question, and wanted by the defense for “inspection…examination…and testing.”  Three different activities, the Judge scolds.

Pages follow of Mr. Grimm’s dogged desire to have an undetermined number of pieces of evidence – which is under the control and responsibility in any trial of the prosecution – for undetermined and clearly shifting examination.  Sometimes by eye, sometimes with photographs, potentially always in a sterile lab environment in an unclear number of labs across the nation.

However, responding to the prosecution’s objections for evidence transfer without clear indication of what was being testing why, Judge Weisberg responds (page 31, line 4):

The Court:  But, you know, I’ve bent over backwards in the last order — Mr. Grimm thinks I’ve failed — but tried very hard to protect that from your — from going to you, because it’s the kind of thing that’s not producible, their strategies, their mental processes about why they want something tested.  It’s exactly the reverse of what we were just talking about.

Again, we see Judge Weisberg ruling in favor of keeping each side’s strategies to themselves – their right – and not tipping the scales to force either side to tip their hand.  What may this say about the trial?  Unsure, but it does suggest that Weisberg is and will focus on protecting each side’s advantage heading into trial.

We skip over pages of details here – pages worth reviewing – and pick up with Mr. Zaborsky’s attorney Thomas Connolly picking up what he previously threw down (page 39, line 20):

Mr. Connolly: …I mean listen, we were here in May and I threw down the gauntlet.  They said that Mr. Wone had been — used paralytic drugs, that there was a sexual assault, and I demanded that the blood get tested.  And I’m just being told now it hasn’t been tested.  I demanded that there be a stipulation that we insisted — the defendants themselves insisted that the blood get tested and that the jury hears that.  None of that has been done, so I’m expressing my frustration, and I’m asking for a date in which I know that that testing can get done.   (page 42, line 6)

Mr. Martin: …I believe three separate screenings for different types of chemical agents have been done since then, and the final results of those are not back , and I guess “finalized ” is the best way to put it.  So I was mentioning to Mr. Connolly that if we set a November 4th…”

Of all the legal arguments, this one is presented in the clearest terms…in typically Connolly fashion.  In short: test what you want, but don’t come back at trial and say we didn’t test for X, Y or Z, because that’s just unfair.  While true the prosecution has a multiplicity of agents to test for, and only limited blood to use, it’s also true that any defense has the obligation to protect their clients from sudden or surprise shenanigans.  To quote Judge Weisberg (page 48, line 7):

The Court: Well, we will take this up again in November, and maybe Mr. Connolly has a right to be upset about it, but it seems to me you fail to test for paralytic agents at your peril. And I think I’d be most reluctant to let you suggest that there was a paralytic agent based on what you’ve told me so far.

Has the prosecution run the tests it wants to, and reported those findings to the defense?  Have the disputed evidentiary items been worked out as to who will test for what agents?  Are the redacted statements from Diane Durham still redacted?  Were the disputed EMS radio calls transcripts released? And will Judge Weisberg continue his focus on protecting each side’s advantage…or will he begin to tip his cards as to where this trial may go?

Stop back Friday for hopefully at least a few answers.  And, no doubt, more questions.

-posted by Doug

12 comments for “Past Is Prologue

  1. CDinDC
    11/04/2009 at 11:21 AM

    Looks like no mention of that spot on the comforter in Dylan’s room. Wonder what’s happening with that test.

    • Bea
      11/04/2009 at 1:46 PM

      It wouldn’t surprise me if any number of tricks hadn’t bled on Dylan’s comforters but damn if it wouldn’t be nice to test as Robert’s. (The horror of it being Robert’s is implied).

      • CDinDC
        11/04/2009 at 3:01 PM

        “number of tricks”……ew.

        • Bea
          11/04/2009 at 3:44 PM

          My thought too.

  2. Clio
    11/04/2009 at 7:05 PM

    Judge Weisberg is, thankfully, not Lance A. Ito of the OJ trial, but will Weisberg’s careful approach of splitting the differences on legal interpretations delay justice even longer?

    • Clio
      11/04/2009 at 9:00 PM

      P.S. Thanks, Editors, for prominently featuring a picture of my own mother, Mnemosyne, the Muse of Memory. Of course, memory is related to history, but they are two different things. Memories are from defendants, witnesses, and first-responders; histories are from detectives, lawyers, and citizen pundits. Historians weave together memories to approximate what happened to the best of their human abilities.

      Not everyone loves history; the eighteenth century Enlightenment tried to break free from it. As Voltaire, an Enlightenment philosophe once said in his satirical story L’Ingenu, “history is but a chronicle of crime and misery. The host of innocent and peaceloving people always disappears from view in this vast theatre, while the chief actors are nothing but evil and ambitious men. There seems to be no pleasure in History any more than in Tragedy, which languishes unless it is enlivened by passion, crime, and great misfortune. Clio as well as Melpomene must be armed with a dagger.”

      The Enlightenment’s willful forgetting of history and tradition led to changes, of course, that were even more bloody and tragic than anything that Voltaire could imagine. Thus, histories, like memories, are necessary evils to combat the much greater evils that are behind the crime and misery of life. So, thank you, Diane Durham, for writing down that conflicting “memory” from a half-naked “witness.”

      • Mike
        11/04/2009 at 10:28 PM

        Another stunning post from Clio – thoughtful, eloquent and germaine. I’m constantly amazed by the diversity at WMRW; it’s like a bomber crew drama where everyone brings his/her particular expertise and flava. So many strong and distinct voices. Sometimes I feel guilty for reading all this great stuff for free.

        Doug once compared the Swann St. saga to Shakespearean tragedy; I agree that its darkness is blacker and more Byzantine than any Hitchcock. Some of the bloggers could be characters from a classic novel, and I mean that as high praise.

        More important than any of this is the fact that an actual, one-in-a-million human being did die, and we must do everything in our power to write a last-act Reveal.

        • GP
          11/05/2009 at 9:57 AM

          Bravo, Mike.

  3. CDinDC
    11/04/2009 at 7:48 PM

    posting problems. Again.

  4. CDinDC
    11/04/2009 at 7:49 PM


  5. CDinDC
    11/04/2009 at 7:50 PM

    As a side note, Sowell, the Cleveland serial killer arrested this week, had an profile. Master seeking submissive.

    How many more are there on

  6. Hoya Loya
    11/05/2009 at 4:03 PM

    Lots to digest here, and I need to review Bernie’s portion more closely. But this jumps out at me, from Spagnoletti: “aside from being impeachment material for these potential witness” referring to the EMT tapes. He’s definitely hoping for a Mark Fuhrman moment.

    The judge has one primary job here: to prevent an appealable evidentiary issue. The prosecution doesn’t get to appeal, so it will try to get everything possible admitted into evidence. However, if evidence is allowed that shouldn’t be, the boys have grounds for appeal. The judge is actually protecting the prosecution by indicating, through his rulings, what it needs to do to make its case. Likewise, the boys should have access to as much information in advance as possible in order to prepare. Good trials do not have “surprise” witnesses or testimony. Interrogatories, document requests and depositions can help the prosecution shore up their case by finding holes in testimony and identifying what evidence the defense might seek to attack. The standard balancing test for evidence is: does the prejudicial effect of evidence or testimony outweigh its probative value. Accusing the trouple of drugging Robert without presenting evidence of a drug would be highly prejudicial and a sure-fire road to an appeal. The “negative evidence” that Robert did not struggle indicates that he was incapacitated in some way, but not in which specific way. I would guess that witnesses would be allowed to testify about the wounds indicating a lack of resistance as well as the presence of needle marks consistent with hypodermics, but not to opine further as to the marks being evidence of paralytics. The jury would be left to connect the dots.

    I agree with our bloggers – Connolly’s confidence (“Test the materials, and use any test you want”) indicates that he knows nothing will be found (i.e. that any dugs that might have been in the house and that could conceivably have been administered will have long since dissipated — this could have been ascertained from the search results and from Victor with questioning along these lines without Victor incriminating himself to Connolly).

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