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.
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.