Defense + Judge Weisberg = BFFs

Swann Street Swoons 

At Friday’s status hearing we learned that the defense team submitted a joint motion for special assignment, a request of Chief Judge Lee Satterfield that the man presiding over the Wone case, Judge Frederick Weisberg, stay on until completion of the May 2010 trial.

heartAAt issue is whether another judge, Lynn Leibowitz inherits Weisberg’s calendar next January.

Judges’ calenders rotate frequently in DC and other jurisdictions around the country.


Weisberg has had this case since it was assigned in November 2008.  At the next status hearing on January 15, 2010, it will be just four short months until the trial.  Weisberg has already conducted a slew of status hearings, in camera and ex parte discussions.  He’s ruled on a number of motions and has several more pending and many more expected.

Dylan Ward counsel David Schertler made it patently clear last Friday that he and his colleagues want Weisberg to stay attached; prosecutors Glenn Kirschner and Patrick Martin were noncommittal, while Weisberg said the decision rested with Judge Satterfield and hinted that it wasn’t likely he’d be staying on.

He’s been on the bench for 30 years, presiding over DC’s most troubling and horrific cases.  Does Weisberg even want this case anymore?  After 13 months wrangling this three-ring circus, wouldn’t the relative low-key Felony II calender sound downright comfy?

Who benefits from Weisberg staying on?  Does a switch to Leibowitz, a former prosecutor herself, present issues or conflicts?

The defense’s motion ticks off their chief reasons why the want the bow-tied judge to remain; at the top of the list:

A.  Judge Weisberg has a depth and breadth of knowledge that cannot be readily acquired by a judge new to the matter.

The defense maintains that after seven hearings, 23 motions which comprise 500 pages of pleadings, 2,500 pages of docs, and thousands more in electronic form, this case would be a challenge for a new judge to inherit.  Weisberg is still in the middle of a number of complex discovery orders for forensic testing and analysis too.

“It would be a difficult and time-consuming task for a new judge to obtain even a measure of the mastery of the facts and legal issues which Judge Weisberg has acquired over the past year.   Weisberg’s more that 30 years on the bench render him particularly well situated to address the multitude of complex and unusual issues presented by this case.”

B.  Reassignment of this case at this juncture to a new judge would be unduly prejudicial to the Defendants

“Given the recognized complexity of this matter, the extensive motions practice to date and current posture… it is axiomatic that reassignment of this case…  would be significantly prejudicial to the Defendants.”

And because of all the pending discovery issues,  “As a practical matter, it could only be detrimental to ask another judge to implement Judge Weisberg’s discovery orders, particularly those relating to forensic testing.”

And if three and one half years from Robert’s murder until the May 2010 trial wasn’t a long enough time span, the defense raises the specter of even more delays.  “…any reassignment of this case to a new judge would preclude timely resolution of the pending motions… and invariably and significantly delay the progress of this case to trial….   the current trial date would almost certainly be in jeopardy.”

We’re told that,  “…the impact on Defendants – three well-regarded professionals with close family and community ties, no criminal records, and no history of violence or mental illness – is significant.”   And that reassignment will also “inevitably increase the already immense financial burdens on Defendants”.    In other words, haven’t the Swann Street roommates suffered enough already?

C.  Neither prejudice nor burden will be occasioned on the Government, the Court, or the Defendant by allowing Judge Weisberg to continue presiding over this case.

Everyone is a winner if Weisberg stays on the argument goes.

The defense offers a compelling case.  What’s the upside or downside for Glenn Kirschner?  We’ll find out when he responds.

What problems may the assignment of Judge Leibowitz present?  One case watcher says:

Leibowitz is a former federal prosecutor in D.C. whose social/professional ties with Kirschner et al may become an issue for the defense.  When  a judge has the appearance of a conflict, expect a recusal motion by the defense.

Not only was Leibowitz a former prosecutor in the DC US Attorney’s office, she was acting chief of the homicide division, the office that Kirschner now helms.

It’s entirely possible that Kirschner and Leibowitz crossed paths there; she was nominated to the bench in 2001 and shortly after her departure he was the division’s acting chief.

As of now, Judge Weisberg is scheduled to honcho the January 15 status hearing.  We may know by then if that turns out to be his swan Swann song.


8 comments for “Defense + Judge Weisberg = BFFs

  1. CDinDC
    11/13/2009 at 4:26 PM

    The inability to be impartial is a hefty accusation against a judge. And “knowing” an attorney isn’t a grounds for recusal. The DC criminal legal community isn’t that big that a judge won’t know a prosecutor OR a defense attorney.

    Courtesy of Wikipedia, here are some universal reasons for recusal:

    – The Judge is related to a party, attorney, or spouse of either party (usually) within three degrees of kinship.

    – The Judge is a party.

    – The Judge is a material witness unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see Substitution (law)).

    – Judge has previously acted as an attorney for a party.

    – Judge prepared any legal instrument (such as a contract or will) whose validity or construction is at issue.

    – Appellate Judge previously handled case as a Trial Judge.

    – Judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal if there is any interest at all in the outcome, while others only require recusal if there is “significant” interest.

    – Judge determines he cannot act impartially.

    • Meto
      11/14/2009 at 12:11 PM

      As to recusal, I agree with CD.

      There are two related issues raised by the Defense Motion: (1) Should Judge Weisberg remain on this particular case; and (2) if not, is Judge Leibowitz subject to recusal.

      Because I think the answer is more obvious, based upon what we know and what the Defense claims about Judge Liebowitz, I’ll try my hand at that first. Recusal is an extraordinary remedy and CD’s universal reasons are found in the law. Interestingly I can find no reported cases in D.C. Superior Court (court started in 1970) regarding recusal. That merely means the issue was not litigated, not that a judge has not voluntarily recused him or herself in the past. But it goes to CD’s point that the criminal bar in D.C. is not that large and former prosecutors are often appointed as Judges. The system could not and would not function if merely having worked with someone as a prosecutor then resulted in the inability to handle cases with that prosecutor. I found one case from Pennsylvania that expressly held that a judge who had worked with and then supported the fellow prosecutor’s elevation to chief prosecutor was not subject to recusal just because that person appeared before her.

      Without something more, and it would have to be a ton more and specific, Judge Liebowitz should not be recused.

      The first question is harder only because it is subject to discretion. Congress when it set up Superior Court in 1970 expressly wanted rotation system of judges in order to “broaden judicial experience” and ensure that certain less appealing positions (juvenile and family law) would get filled if judges didn’t have to sit in those positions for long periods of time. But Congress gave the Chief Judge complete discretion on handling this process. D.C. Code 11-908.

      If Judge Weisberg genuinely thought that justice would be better served by his remaining on the case and he sat down with the Chief Judge and made that pitch then he may well stay on. If Judge Weisberg is ambivalent or ready to get out, then he will be gone.


  2. Clio
    11/14/2009 at 9:07 PM

    Judge Weisberg, stay on the case! I do not want Spag stringing this three-penny opera out any longer than it already has been.

    And, if and when the eventual verdict of guilty on all counts comes down, then it will be given the seal of approval by the defense’s own choice in jurist, if not jury: Priceless! Glenn has enough challenges and distractions: he does not need to defend himself against the appearance of impropriety, too.

    “Close” family and community ties — didn’t Mr. Price’s appeal last year state that, even if the recipients of the chain mail letter had not heard from them in a while, they needed money to stay out of jail? Is that considered “close” for DC?

    No one with a history of mental illness: aren’t Little Dyl’s blues, sleeping disorders, and blank expressions symptoms of depression — or of a guilty conscience?

    • Clio
      11/15/2009 at 2:28 PM

      Why are Kirschner and Martin neutral about Judge Weisberg? Is that neutrality perfunctory, or do they want a sure-bet conviction, thanks to an old “crony” of Glenn, Judge Leibowitz? If the latter part is the case, then they are dumber than I had thought. So, even if Glenn did play college football, let’s give him a pass here.

  3. Craig
    11/15/2009 at 5:06 PM

    Clio – The motion to keep Weisberg on board hit the morning of the status hearing. In all fairness to Team Kirschner, they didn’t have time to ready a response. I’m sure we’ll hear from them soon.

    • Clio
      11/15/2009 at 11:33 PM

      O.K., then that “neutrality” makes sense. Thanks, Craig.

  4. 06/23/2015 at 8:56 AM

    Many thanks for writing Defense + Judge Weisberg = BFFs | Who Murdered Robert Wone?, actually love it.

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