Friday's (Com)motions

Hard Copies

As promised, the three motions filed ahead of Friday’s 2:05pm status hearing.  Two seem rather routine.  The third, not so.

The Government’s Response to Defendants’ Joint Motion to Exclude Uncharged Criminal Misconduct at page one argues that since the case’s previous Judge Frederick Weisberg had not set a briefings and motions schedule, which would be necessary, they are unable to file a Notice of Intent to Introduce Uncharged Conduct. Simple enough.

In the Government’s Response to the Defense Motion for Scheduling, the Assistant US Attorney’s Office proposes the following briefing schedule:

February 25:  Remaining Expert Notice Due

March 10:  Affirmative Motions Due

April 7:  Oppositions Due

April 14:  Motions in Limine Due

May 3:  Opposition to Motions in Limine Due

May 10:  Motions Hearing / Trial

Again, simple enough; and after nearly four years since Robert’s murder, it’s reassuring to still be seeing May 10 as D-Day for the trial.

Two small points jump out in the last motion…and a larger, more ominous one maybe lay deeper inside the text.

The Defendant’s Reply to the Government’s Opposition to Defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment (the obstruction and conspiracy charges) runs 22 pages and is laden with references to legal precedent and case-law.  Merriam-Webster’s Online Dictionary too for good measure.

And perhaps in an instance of either bad taste or an inside joke, the defense leans on a peculiar case to buttress their argument:  Andrews v. United States, 981 A.2d, which  goes into detail on a prostitute, oral sex, condoms and underwear.  *Ahem*

OK…so here it is the New Year.  How many of you still writing 2009 on your checks?  Well, so, too, might the associate at Schertler – Onorato who banged out this document.  The date of tomorrow’s status hearing is listed as January 15, 2009.

Much of the defense’s argument revolves around what constitutes a “official proceeding” and alleged false statements given to investigating officers.

Lastly, this motion reveals a notable event that occurred in November, 2007:  a lunch conversation between Joe Price and Kathy Wone.

Whether any of these are addressed at tomorrow’s 2:05pm status hearing is uncertain.  All three motions follow the jump.

-posted by Craig

Government’s Response to Defendants’ Joint Motion to Exclude Uncharged Criminal Misconduct

Government’s Response to the Defense Motion for Scheduling

Defendant’s Reply to the Government’s Opposition to Defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment

31 comments for “Friday's (Com)motions

  1. Clio
    01/14/2010 at 11:53 PM

    This last document makes for fascinating reading, and it begs the following questions: Where did Kathy and Joe have lunch? Was it a Dutch treat? Was Kathy wired? Was Joe wired (in a different way)?

  2. AnnaZed
    01/15/2010 at 2:26 AM

    One wonders (one really does) just how much judicial ire defense counsel risks in putting forth these rubbishy arguments and just how cynically exactly they weigh the need for both billable hours and small flourishes of gamesmanship to satisfy the clients that they are doing or trying to do … well … something (anything) against what I would assume to be certain judicially imposed chagrin.

    Let’s see now; there can’t be any question of the defendants having been obstructing justice when they were dragging Robert around, washing him down and tampering with his poor body and the blood evidence at the scene of this homicide because the police hadn’t arrived yet when they were doing these things.

    Er … um … ok then, we’ll just drop that part of the indictment folks (!) Somehow I rather think not.

    And your honor, they can’t be accused of impeding the investigation by lying, because … well, because they can’t … that’s why!

    Oh, and your honor we have also provided a clear definition of the word “in” for your consideration if needed.

    The gall of this last is truly breath-taking, the insolence just amazing.

    Don’t judges get a little ticked at having their natural intelligence insulted? This may be one of the myriad reasons that I would make a very poor judge; I never cease to marvel as what models of decorum most court proceedings are, so I am sure that Judge Leibovitz won’t actually tell them to go fuck themselves, but I do wonder just how bored and intellectually insulted judges are by this kind of twaddle and how it affects their thinking as cases progress. It must be a fine line for these highly paid blowhards to walk, or maybe not. Maybe they figure that their best course is to keep up a virtual constant flow of chatter until the entire house of cards implodes, which may well be in the next few weeks as Joe begins to throw Dylan under the bus and seeks to extract himself from the dire fix that he’s put himself in.

    Well, it was fun while it lasted, Bernie, we hardly knew ya’.

    I know that it’s just for the purpose of the Motion to Dismiss (I know this because it says so right there in the document, in case anyone feels compelled to point it out to me), but I do like reading the words: ” … the defendants do not challenge the factual sufficiency or competence of the evidence.”

    Nor do we lads, nor do we.

    • Ra1n
      01/15/2010 at 11:28 AM

      So the defense is essentially arguing that there is no obstruction of justice because there was no “official proceeding” at the time the defendants were tampering with evidence. Seems like they have some legal precedent too. I’m not a lawyer or law student even, so beyond common sense, why does this argument not hold water?

      Also, at what point would the official process start? If the defense’s argument was valid then legal precedent would allow anyone to conceal a crime without obstruction charges because no one had officially started the legal process yet.

      • David
        01/15/2010 at 11:37 AM


        I am not a lawyer either, but the arguement doesn’t pass the smell test for me, and in the cases that were cited as precedence for not having an official investigation we do not know what the defense held back to bolster their argument. It does seem to over reach.

        David, co-ed.

      • CDinDC
        01/15/2010 at 12:46 PM

        It’s like what Ben does….manipulates the meaning of something to suit his needs.

        The legal language isn’t THAT vague that they can get away with their nonsense.

  3. Lyn
    01/15/2010 at 12:00 PM

    So to summarize in layman’s terms the defendants’ motion to dismiss the charges:

    1. Although we delayed in reporting our crime to police to give us time to cover it up, the stuff we did to cover up the crime before we called police can’t be held against us because the official investigation hadn’t yet started at that time. In effect, our delayed reporting to authorities protects our cover up efforts from criminal charges.

    2. The stuff we did to mislead investigators after we called police can’t be held against us because we didn’t know ‘for sure’ that it would impede the investigation.

    • David
      01/15/2010 at 12:09 PM


      You nailed it. In the defense’s view of the world, there is no situation ever in which obstruction of justice could occur.

      I am so glad they cleared that up for us.


      • TT
        01/15/2010 at 12:30 PM

        Where is the justice? I pray that it will happen….

      • CDinDC
        01/15/2010 at 12:49 PM

        It shows what a pathetic case they have for the hope of acquittal of these charges. They are desperately grasping at straws.

  4. Bea
    01/15/2010 at 12:52 PM

    Just as an FYI, this is all very standard stuff. The judge expects most of this nonsense – if there were a true GEM among the arguments, then much more attention would be given to really presenting it, then it wouldn’t read like a cut-and-paste job from prior briefs as it does now. It’s like gambling, though, in the sense that once in a while a judge might think that they have a point worth considering, so they throw it all in.

    With Price as a client, it’s my guess that these ‘yawn’ kind of early Motions may well have been directed by him. He understands that it will cost him money, and perhaps the attorneys are mollifying him and are letting him ‘ghost-write’ this crap.

    The Motion in Limine will be far more interesting. That’s the one about whether or not the judge will exclude certain evidence or allow the jury to hear/see it.

    • TT
      01/15/2010 at 1:15 PM

      Thanks as always Bea, you simplify the jargon. Keep it coming please.

    • CDinDC
      01/15/2010 at 2:33 PM

      Ahh…thanks Bea. Can’t wait to see the Motion in Limine!

      • Bea
        01/15/2010 at 2:37 PM

        You’re both welcome – I am reluctant to jump in and look like I’m showboating but I see that folks are worrying too much and I get over myself. I don’t want to be one of those folks who are guilty of liking to hear themselves talk 🙂 !

        • TT
          01/15/2010 at 2:39 PM

          Hmmm, wonder who you are referring to….

          • Bea
            01/15/2010 at 2:56 PM


        • CDinDC
          01/15/2010 at 3:29 PM

          Bea you could never be thought of like that. I truly respect your input.

        • former crackho
          01/15/2010 at 3:52 PM

          Bea, never! You are a humble as they come and a class act. I very much appreciate your legal analysis.

  5. Bea
    01/15/2010 at 2:57 PM

    (Tried to post this once but it didn’t appear – now it will likely go through and there will be two of them).

  6. Friend of Rob
    01/15/2010 at 4:02 PM

    I think Bea has a very good point that I hadn’t considered. I GUARANTEE that Joe is taking a hand at drafting most, if not all, of these motions. He was a successful litigator who now has nothing to do but sit around and get fatter and fatter.

    It’s no different than jailhouse lawyers that obsess about their own cases and submit habeas briefs written in pencil, except that Joe would actually bring some serious skills to the table.

    • CDinDC
      01/15/2010 at 4:49 PM

      Makes it all the more delicious to think if they go down, he helped in crafting the sinking ship.

      • Clio
        01/16/2010 at 2:35 PM

        Yes, those deck chairs (or uncomfortable stools!) on the Swann’s Titanic still need rearranging: Joe, you may be as bad a lawyer as you are a friend, after all!

  7. AnnaZed
    01/15/2010 at 4:30 PM

    You know Bea, that is a good point. Joe backseat driving the legal team must be driving everyone nuts already. Here’s to the day when he can hang out his actual jail-house lawyer shingle.

    • Bea
      01/15/2010 at 4:35 PM

      Agree – and it’s not like there’s not enough big egos already! Whether they let him do the work when it’s more critical remains to be seen – he did mostly civil work despite claims of being a criminal attorney too. Someone pointed out that he’s identified in one opinion for a criminal case, and I suspect the rest involved getting his smarmy brother and smarmy brother cohorts out of jail.

      • Clio
        01/16/2010 at 7:18 PM

        Well, from the latest video snippets, Schertler already has pawned Joe off onto his vassal Spag, who (as a gay man) can better feign sympathy for the disgraced bottom.

      • CDinDC
        01/17/2010 at 3:21 PM

        That was me, Bea. It was, coincidentally, a felony conspiracy trial. Not conspiracy related to a murder, but conspiracy, nonetheless. The company in question was charged with exporting equipment to Iran. (Which I find a very strange case to be involved with if the majority of his case experience was with civil IP cases….did he know someone involved?)

        However, that was all that I could find that has Joe attached to it in any significant way other than the Miller/Jenkins case.

        • Clio
          01/17/2010 at 4:53 PM

          CD, thanks. Joe’s involvement in that Iran case is astonishingly ironic, at least from an historian’s perspective. The most infamous exporting-to-Iran case involved financier Marc Rich, and I’m sure Joe as a mediocre corporate cog was probably NOT involved in that one. It was above Joe’s pay grade. But as you may recall, President Clinton pardoned Rich in a last-minute move facilitated by none other than Eric Holder, former Wone lawyer and current Attorney General of the United States. Holder’s confirmation was briefly in doubt, as you may recall, because of his role in this shady pardon.

  8. Clio
    01/17/2010 at 10:43 PM

    Why did the defense rely so heavily on Andrews v. United States? It’s almost as if they are NOT even trying to win. Lynn, thanks for moving this BS along to its final conclusion.

    • Bea
      01/18/2010 at 1:04 AM

      Without doing the research, I’m guessing it’s the best they had. These are good lawyers.

      • David
        01/18/2010 at 9:43 AM

        Clio and Bea,

        I think Bea is right, that it was the best shot they had, but Lynn let them know under no uncertain terms that this was settled as case law more than 70 years ago. She wasn’t going to cotton to any more of these ridiculous arguments, thus wasting her and the court’s time.


        • Craig
          01/18/2010 at 10:28 AM

          You got to wonder how Friday’s failure to dismiss effects the confidence of the defense.

          Or is that affects? Clio?

          • Clio
            01/18/2010 at 11:59 AM

            “Affects” is the correct word, Craig. To affect means to influence or to shape. To effect means to bring about or to accomplish.

            I hate to be such a pedantic schoolmarm (circa 1895) with my tweed suit and hair in a bun, but someone has got to do it.

            I think that the defense lawyers knew that this case, however lucrative, was a lost cause from day one, and, hence, their own self-love and self-image will not be affected by the outcome. Bernie has already moved on apparently, given his sudden lack of engagement. Will Schertler and Spag be the next ones “to check out” emotionally?

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