"…Win, Lose, or Draw…"
The Defense Pushes Hard and the Court Pushes Back.
The day’s legal action began long before Judge Frederick Weisberg gaveled in the status hearing at 2:01pm.
The defense this week has filed a range of motions – one to have Judge Weisberg permanently attached to the case (Rule 106), one to exclude the “unsubstantiated charges” – and today, yet another.
First thing this morning, the defense delivered a motion to the Court (and, they say, to the Prosecution) to dismiss counts 1 & 2 – a serious action.
This last minute flurry of paper caused Judge Weisberg some consternation. They may have been delivered, but he didn’t have the time to read them, neither did prosecutor Glenn Kirchner’s office. The Government did agree to respond to this latest motion by December 11.
Kirschner’s deputy Patrick Martin, handled most of the chores today. The Swann Street legal team was missing the services of Robert Spagnoletti, who was in the courtroom, but not actively participating, and Thomas Connolly.
Attorney David Schertler led off, asking Weisberg for a schedule for discovery and other motions. Not content to let the many pending motions percolate, Schertler asked Weisberg if he was inclined to stay attached to the May trial, in addition to ruling on any of this week’s other motions.
Changes in the DC felony calendars may force Weisberg off the case. Chief Judge of the DC Superior Court, Lee F. Satterfield will make the call. The defense admitted they’d like Weisberg to stay on board, but Kirschner hasn’t shared his thoughts yet.
Judge Weisberg: “You all overestimate how much time I can devote to this… There’s no point discussing this… I don’t know. I doubt it.”
This first push and push-back by the Court set the tone for the hearing. Attorneys Schertler (for Dylan Ward), Bernie Grimm (for Joe Price) and Amy Richardson (for Victor Zaborsky, substituting for Thomas Connolly) came loaded for bear; specifically to squeeze a number of evidentiary items from the Prosecution and set time lines for the following six months.
Throughout, Judge Weisberg expressed muted surprise at the number – and timing – of filings by the defense and their need to set deadlines in stone. Weisberg was not amenable.
For example, when Bernie Grimm went on – at some length – on how their expert witness “…Dr. Henry Lee of Connecticut…” was costing too much money, hadn’t yet got the evidence he wished, and was now in Turkey. Another lab may be in order.
Judge Weisberg seemed a bit dumbfounded. “So is there anything you want me to do about it?” he asked. Well yes, responded Grimm, force Kirschner to turn over all DNA techs bench notes to the defense. “We’re handcuffed here…without those handwritten notes,” argued Grimm….twice being asked by the Court to slow down for the benefit of the reporter. Then comes the money quote:
“This case is win, lose or draw, based on evidence…” and not witnesses… my client was an attorney and was fired, he has no livelihood, no income…he’s shelled out tons of money to experts. We need those notes.”
Grimm tried his hardest, mentioning a Florida case where bench notes were produced as part of discovery. Florida state courts do not establish precedent in DC Superior Court, where the Feds prosecute.
Weisberg replied, “I’m not sure what there is about this case that requires the wholesale production of bench notes.” Weisberg said the Government is not required to, has already provided a four inch stack of docs and that the defense had no authority. So once more: no sale said Weisberg. If there was specific request by the defense, he may consider.
Schertler again argued that Rule 16 requires disclosure of material that’s of use for the preparation of the defense, and so Team Swann continued to argue that bench notes and other contested items should be turned over post-haste.
Judge Weisberg expressed dismay as to the producibility of…well, just about anything the defense wants. “So are witness statements (usable for the defense) but they’re not producible. “That’s different,” responded Schertler. But apparently not different enough to sway Weisberg.
The defense’s traveling expert Dr. Lee, it should be noted, is best known for his many TV appearances and books on celebrated cases (O.J. Simpson, Jon Benet Ramsey, Sacco and Vanzetti and Vince Foster). Perhaps he’s a green room pal of Bernie’s at Fox News.
Next issue: redacted notes. Weisberg reviewed the redacted and unredacted notes (first noted here) in camera, and decided there were only three lines that should be unredacted - and offered to read them publicly. Over Schertler’s objection, he read them, picking up with Officer Brian Waid’s notes on speaking with Sgt. B. Roach, “…wit (Zaborsky) was crying, told SGT “I think they came through door.”
The redactions revealed this: “Went to show but SGT told him not to touch anything and told him to sit down.” Issue resolved, no wild card.
There was pretty much one last issue to deal with, and it generated the most heat and from the defense attorneys and defendants themselves. What evidence the prosecution intended to introduce in May, basically their case.
Question from Schertler: would the court consider a pre-trial schedule? Court: good idea, why don’t you work it out with the prosecution. Question from Grimm: would the court order a response date from the prosecution on our motions? Court: No, there’s frankly no need.
Joe Price overheard, again gesturing to Bernie Grimm, “…give us a date!” Then Schertler, with his voice rising in pitch and tempo: “This is a matter of fairness. I don’t know why they are delaying in providing this to us. We should know now.” Weisberg said the prosecution has a right to take their time to say what evidence they’ll introduce.
David Schertler: “That defies common sense.” Judge Weisberg: “Not to me.” Push back.
A slightly irked Bernie Grimm trailed off, referring to Kirschner as “…the big top head,…it’s hard when you’re sitting up in an ivory tower.”
Ivory Tower? We’ve seen our share of federal buildings and doubt the offices of Patrick Martin and Glenn Kirschner rival what’s to be found in Schertler & Onorato, Harris, Wiltshire & Grannis or Cozen O’Connor.
Upset over delays? We also doubt the pain caused to the defense by the prosecution’s alleged delays rival the long wait for justice that Kathy Wone and Robert’s family have endured over the last three + years.
Grimm, who in the past has had more than one slip of the tongue referring to this case as a homicide matter; today brought up the m-word, ‘mistrial.” Was he threatening? Bluffing?
Echoing Schertler’s exasperation, Grimm said that every time they file a motion, the Government says they haven’t had time to read it. “It gets old,” Bernie lamented. Weisberg, “They didn’t say they didn’t get it. They said they didn’t see it.”
Next up on the calendar, the defense experts travel to the FBI facility in Quantico, Virginia to examine the evidence on November 20.
Legal Times’ Mike Scarcella files this. He goes into some detail on the motion to dismiss and who may take over this case from Weisberg.
Judge Lynn Leibowitz is a former federal prosecutor of 11+ years and was acting chief of the homicide section in the DC US Attorney’s office. Was this why the defense was so obvious in wanting to keep Weisberg on board?
Liebowitz might be a bad card for the defendants to draw.
Nearly all of the 50 seats in the courtroom were taken. The Wone family accounted for maybe eight of them, the press had another eight, and the rest seemed to be filled by supporters of the defendants.
All in grey suits, once again Ward was seated in between Price and Zaborsky. Ward’s expression throughout the proceedings was blank; Zaborsky followed the debate looking concerned, while Price seemed irritated.
The defendants, their attorneys and gaggle of supporters did not leave the Moultrie Courthouse through the main entrance, instead they left from the rear, crossed 5th Street and made their way into an adjacent parking garage.