"This Was Not A Good Day."

A New Judge, And A New Attitude, In Moultrie   >> New pic added

Long time Wone observers had become accustomed to the somewhat folksy ways and relaxed pace of Judge Fredrick Weisberg.   Whatever else learned from today’s status hearing, it was obvious that new Judge Lynn Leibovitz came ready to rumble.

Dylan Ward, Victor Zaborsky and Thomas Connolly

“I’m not inviting arguments, but I’m ready to hear them,” she began, setting the tone for what would be a fast-moving, and eventful hearing.  Gaveled in at 2pm, Judge Leibovitz began ready to rule on the defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment.  

Robert Spagnoletti for the defense, and AUSA Glenn Kirshner for the prosecution, took Leibovitz’ invitation literally, jousting on whether the 17 overt acts detailed in the superceding indictment meet the legal definition of conspiracy and obstruction.

The defense strategy has long been not to argue the factual basis of those acts, rather to claim they simply don’t rise to a sufficient level for the government to bring charges.  “There is no case,” said Spagnoletti, “…the government would have this court believe defendants can be questioned without any representation, and then be charged.  Charged for not confessing.”

The government, and increasingly Judge Leibovitz, would have none of it.  “This is a sufficiency of evidence claim with lots of window dressing,” said Kirschner. 

Spagnoletti pressed forward.  “We feel very strongly…”   “I noticed,” shot Leibowitz, to the amusement of the court.  Arguments invited and offered, Leibovitz said she was prepared to rule.  Not just rule, but reading her entire opinion into the record; she went on at great length, a filibuster.  “On the motion to dismiss, I find the defendant’s argument meritless and should be rejected.”

The defendant’s demeanor become solemn; Victor and Joe seeming as though the air was being let out of them, and Dylan expressionless as always.  Defense counsel as well; you could see this defeat on their faces.  The judge’s opinion was thorough and definitive, even referencing basic legal definitions and case law (see Braverman v. U.S., 317U.S.49)  while noting the defense’s basis for argument were clearly pulled out of context.  Leibovitz reached back all the way to 1942 for the Braverman ruling.  Paging Chief Justice Harlan Stone!

Twenty minutes and already a ruling?  Not in Weisberg’s court.

Next up, the defendant’s Motion for Scheduling Order.  “Seeing as you haven’t been able to agree on a schedule, I’ve made one up for you,” began Leibovitz.

For months both sides have pointed fingers, accusing the other of withholding evidence, test results, or experts they intend to introduce at trial. 

Assistant U.S. Attorney Patrick Martin said “…about 90, 95 percent has been turned over to defense,” adding they expect additional findings on some fiber testing (on fibers found on the knife, towel, and found on an article of Robert’s clothing), some “quasi-reconstruction work” being done by the government’s blood spatter expert, and – for the first time we’ve heard – and potential testimony from an anesthesiologist.

Ward defense counsel David Schertler tried to again pick the fight, accusing the government of having the case for more than three and a half years.  Leibovitz would have none of it.  “I’m not interested in who’s done a worse job in disclosing.  I’m not cutting off scientific inquiry.”  End of argument, with the coda that the government will turn over all that it currently has to the defense by February 5th, and the defense will do likewise by February 26th. 

Item three: the defandant’s Motion to Exclude Uncharged Criminal Conduct.  Judge Leibovitz offered she saw these fitting into three rough categories: criminal conduct that happened the night of the murder, criminal conduct that happened anytime other than that night, and legal conduct she called “…the other stuffs, off the four-corners of the indictment.”

Again arguing for the defense, Schertler in essence argued that prosecutors now need to lay out the specific theory they intend to bring at trial, and how they are positioning Robert’s murder.  Paraphrasing now, Schertler asked a question Leibovitz herself posed, asking whether the government will say the defendant’s committed the murder, another person committed the murder, or something in between.

Leibovitz had a nuanced perspective, noting the defense was certainly entitled to know the general theory and charges prosecutors intend to bring regarding other uncharged criminal accusations.   However she was reluctant to freeze the case in amber, noting that new evidence and theories can develop even up to the beginning of the trial.  “Heaven only knows what we’ll see in this case,” she observed.  Well said. 

In the end, Kirschner agreed to turn over to the defense by February 5th the general outlines of what criminal accusations the night of the murder will come up, with Leibovitz then setting February 26th as the deadline for other criminal accusations.

But as to “…the other stuff…”, Leibovitz was clear.  “I’m not doing that,” she said several times; “The government will not be held to a checklist.”   She noted there was no legal requirement for the government to disclose what sorts of legal, but potentially prejudicial, issues it will raise at trial.  She did note the more, and more incendiary, issues that first arise mid-trial can bring more conflicts – something the government may not want in front of the jury. 

But as to Schertler’s request to know what sorts of “legal…prejudicial…” issues may come up, no dice.   Legal, prejudicial? Could this mean the Price-Ward BDSM relationship, alleged drug use, and other past behavior?

An 8 minute ex parte discussion followed; first with all counsel, then with just the defense team.  Schertler asked that the bench conference be (temporarily) sealed under 6th Amendment infringment; Judge Leibovitz agreed.

There was no other business at hand other than to set the date of the next status hearing.  Both sides agreed on Friday, March 12 at 2:45pm.  Judge Leibovitz gaveled out at 3:08pm.  She’s all business.

The Scene:

The hallway was crowded since right next door, Washington Wizard Gilbert Arenas was copping his plea to weapons charges. 

Members of the Wone family were first to arrive.   Attorneys on both sides filed in along with the defendants, all three once again dressed in grey suits and in seeming good spirits. 

Price, coming in solo, was seen confering with Ward co-counsel Robert Spagnoletti in the hallway before the courtroom doors were opened.  Ward and Zaborsky arrived together a few minutes later and immediately split up to tend to separate flocks of well wishers. 

Zaborsky, in an amiable mood, held the courtroom door open, even for us.  All three mingled before the gavel and then took their seats with Price in between Ward and Zaborsky.

For the defense, the chores were handled exclusively by Ward counsel Schertler and Spagnoletti.  Zaborsky’ counsel Thomas Connolly seemed like a bystander this afternoon.  At  one point, Price counsel Bernie Grimm; his colleagues were huddled at the bench for the ex parte, seemed least engaged as if eavesdropping on the conversation.

At the conclusion of the hearing, as usual, the three defendants approached the court clerk and confered with her for a few minutes.

On the way out, gathering in the hallway, all three defendants exchanged greetings, hugs and kisses with their supporters.  Price was overheard asking one of them how things were going.  “Better for me,” the friend sheepishly admitted.

The defendants departed through separate exits; Price again attached to Spagnotletti’s hip left from the north side and past the gaggle of reporters and TV crews assembled to cover the Arenas hearing.  They didn’t so much as get a second glance from any of the journalists.

Dylan Ward and Thomas Connolly

Together, Ward and Zaborsky opted for the less trafficked south exit of Moultrie.  Excorted out by Zaborsky counsel Thomas Connolly, he was overheard indiscreetly telling them both, ‘This was not a good day.” 

The Legal Times’ Mike Scarcella, fast on the keyboard as always, is first to file.  MetroWeekly’s Yuse Najafi offers this summary.

The Sights:

A wmrw.com “Shaky-Cam” Exclusive:

[youtube=http://www.youtube.com/watch?v=AinTOTP3cN8]

43 comments for “"This Was Not A Good Day."

  1. Bea
    01/15/2010 at 8:01 PM

    Guys – thanks SO much for this! It’s excellent news that the Judge is so decisive (and that Connolly thought it was ‘not a good day’). It makes me wonder if they really thought a dismissal might actually happen. My guess is their disappointment goes more to the judge’s willingness to give the prosecution more leeway. It likely didn’t help the defense mood that she was swift in her denial.

    FYI, love the commentary during “Shaky-Cam”!!

    Glad to see Joe got longer pants.

  2. Friend of Rob
    01/15/2010 at 8:08 PM

    Please guys, keep in mind that some of us are getting email updates from Facebook and seeing your headline “This was not a good day” gave some of us a heart attack, thinking that the judge had dismissed some charges.

    That aside, GREAT JOB GUYS!

  3. CDinDC
    01/15/2010 at 8:48 PM

    Awsome coverage.

    Ditto what Bea said about the “Shaky Cam” commentary! LOL Can we be sure it was you and not Joe saying that? LOL

  4. Mark
    01/15/2010 at 8:58 PM

    This is wonderful progress in this case… and definitively ‘a good day for Robert. Keep up your excellent work! I like that our trial judge is determined to keep the playing field level. Enough w/all this pretrial romance. I am looking forward to finding out ‘Who Murdered Robert Wone’ at the trial. 😉

  5. AnnaZed
    01/15/2010 at 9:36 PM

    Bravo guys, just bravo ~ art of the shaky cam indeed.

    Tell me, when Victor is holding the door for you, does he know who are?

    • Clio
      01/15/2010 at 10:13 PM

      Yes, when did ladies start holding the door for gentlemen: the world has turned upside down for our favorite milk maid!

  6. Clio
    01/15/2010 at 9:58 PM

    Dyl still looks overly sunburnt to me: does the Crew Club have a tanning bed, or he is commuting to his clients in Miami Shores?

    • Bea
      01/15/2010 at 10:03 PM

      I wondered about that too, Clio, but then saw that Connolly was just as red so perhaps a photo issue (Victor is turned differently). Or maybe you’re right – but instead of paying for tanning beds, he’s got a towel on Aunt Marcia’s grass since he’s got all the time in the world. I can almost picture him there, paging through the latest People Magazine.

      • She did it
        01/15/2010 at 10:11 PM

        looks batshit crazy to me — plus she could use some wrinkle cream. not ready for his close-up. . . .

        • Bea
          01/15/2010 at 10:22 PM

          I thought Victor was only 5’8 or so, but doesn’t it appear that Dylan is considerably shorter than Victor? It’s partly the angle but when the photo is enlarged, it appears that Dylan’s eyes are at Victor’s neckline. I thought they were the same height – Eds., comments?

          • des
            01/15/2010 at 10:45 PM

            having met them a long time ago and judging in comparison to my height, victor is probably about 5’9 or 10″ and dylan is 5’7″ maybe.

            • Bea
              01/15/2010 at 10:57 PM

              Thanks, des. Helps explain the image – and likely that Dylan ’rounded up’ when asked how tall he was.

              • Clio
                01/16/2010 at 12:14 AM

                Dyl has worn this blue-on-blue ensemble before — at September’s status hearing. Yet, where was Scooter Girl this time for hugs?

        • Bea
          01/16/2010 at 3:49 AM

          The second picture of Dylan makes him look thinner than the last time (to be tacky and blunt, pencil-necked). It might be the angle, but maybe he and Joe went on a diet. Joe’s still cramming himself into shirts/jackets which are too small (giving him that bullfrog affect) but he did seem a bit lighter than last time. Or possibly they are just less concerned with random drug testing (can’t remember if they are still subject to them or not).

          • Clio
            01/16/2010 at 2:27 PM

            And, Victor looked tired in the side shot above. From those dark bags under his eyes, he and Aunt Marcia may be watching too many “Law and Order” marathons on cable: let’s hope that they learn something, however.

  7. Clio
    01/15/2010 at 11:19 PM

    Why do Joe and Victor arrive and depart separately? I guess Spag is more engaging for Joe than his roomies in McLean.

    Editors, were Aunt Marcia and Kim on hand for trouple support? These status hearings must be dreadfully boring for them — the end may be near with Lynn leading the way.

    • Bea
      01/15/2010 at 11:51 PM

      My guess is that Joe goes early to the lawyers’ offices to ‘go over’ their arguments with them. Now THAT would drive any lawyer crazy, to have some client-lawyer always second-guessing and ready to blame. . .

    • David
      01/16/2010 at 10:41 AM

      Clio,

      No Aunt Marcia or Kim among the Trouple boosters at yesterday’s hearing.

      David

      • Clio
        01/16/2010 at 2:22 PM

        Interesting. So even they may be (finally!) seeing the handwriting on the wall.

  8. vincentchin
    01/16/2010 at 12:00 AM

    What ever happened to the guy/s who looked like Dylan stalking? I don’t see anybody here who seems to think that Dylan didn’t do it.

    • She did it
      01/16/2010 at 9:23 AM

      i believe that needham, marcia, kimberlee, lance and others believe that the evidence is insuffient to prove his guilt – – you are right that the posture has not been he didn’t do it.

  9. Nelly
    01/16/2010 at 12:16 AM

    Thanks, guys, for all your hard work covering this case.

  10. TK
    01/16/2010 at 7:27 AM

    Thanks so much for the coverage guys, but I agree with ‘Friend’ you scared me with the headline!

    • Craig
      01/16/2010 at 10:11 AM

      Thanks for the kind words.

      Apologies about the shocker headline. When we get a juicy soundbite like that, we run with it.

      There will be a lot from this hearing to pick through in the coming days and weeks and we hope to get the transcript soon. It will make for great reading.

  11. Ex-SwannDude
    01/16/2010 at 3:59 PM

    Lovin me some shakey-cam!!

  12. BenFranklin
    01/16/2010 at 6:23 PM

    The judge was wise not to let up on the defendants, but she also knows how difficult it will be to keep this case from swerving recklessly into mistrial & miscarriage of justice.

    It’s time for some truth & some deals, guys. The truth couldn’t possibly be as bad as the speculation & innuendo, or facing a DC jury.

    Have a few deal options ready when in limine is settled.

    • Bea
      01/16/2010 at 6:39 PM

      Ben, you have no idea what you’re talking about.

      No pix, huh?

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

        Yes, Ben, when and where are you going to post your 150 digital daguerreotypes? I would be satisfied with far fewer artist’s renderings, but that’s just me.

    • CDinDC
      01/16/2010 at 10:40 PM

      yep….just as a thought….Ben, you have a perverse need to make things up. Get some help, dude.

    • JusticeForRobert
      01/17/2010 at 7:34 PM

      It would seem to me, Ben, the trio have always had the best deal option. That would be the option of simply telling the TRUTH. Since they have elected to date to refrain from that option, what other options would you propose?

  13. CCBiggs
    01/17/2010 at 4:32 PM

    “The truth couldn’t possibly be as bad as the speculation & innuendo . . . ”

    Yes it can, in that the speculation and innuendo won’t put these guys in jail, but the truth will.

    • Bea
      01/17/2010 at 9:52 PM

      My guess is that the speculation and innuendo on this board IS the truth and thus why the defendants haven’t talked – they don’t want to be convicted of first degree murder.

      I hope Connolly sits Victor down again very soon and lets him know that things are likely to be worse under this judge. . .

  14. Nora
    01/19/2010 at 8:13 AM

    What still fascinates me is Connolly’s very public “Not a good day” utterance. Such a staggering breach of protocol can be no accident. I am thinking about the Judiciary traffic noise and how close Connolly must have been to what were palpably reporters (w/ visible cameras?). Who was he really speaking to?

    Don’t tell me Connolly isn’t very familiar with WMRW and the exposure it gives to an otherwise all-but-buried case.

    What does he want to have happen? He’s not happy with the case as it is; could he just want a failure like this off his record? Maybe he’s quite aware that somebody out there knows more than they’re telling. When the big ship goes down it sucks down a lot of rats who haven’t made their own deals. They need to prick up their little ears.

  15. Nora
    01/19/2010 at 8:29 AM

    “Somebody out there” meaning not charged.

    • SheKnowsSomething
      01/19/2010 at 10:34 AM

      Nora,

      I think that somebody is the fourth – and not charged – resident of 1509 Swann Street NW; one Miss Sarah Anne Morgan. She has been conspicuously absent from all of the pre-trial hearings. I wonder if she’s making regular visits to her former housemates out in McLean?

      • CDinDC
        01/19/2010 at 11:20 AM

        SKS…ever here about Sarah in your pipeline? You had some round-about contact with her quite awhile back. Ever see her out or know anyone that ever sees her these days?

        • SheKnowsSomething
          01/19/2010 at 2:27 PM

          Saw her from afar over on 17th Street NW back in the summer … no one ever mentions having seen or heard from her in quite a long time now.

          • CDinDC
            01/19/2010 at 3:34 PM

            I imagine she is laying low…….reeeeal low.

            • Bea
              01/19/2010 at 4:06 PM

              Even if she was at Tom & John’s the entire night, and did not carry off evidence, she knows a LOT based solely on watching them over months after and years before. The drug use, the tricks, but more importantly, how they behaved in the days after. Whether or not she had a ‘private’ conversation with Victor – who was HER friend. I don’t think Victor has the stomach for this stuff and might need to talk to someone about it – if not a therapist then at least a girly best friend.

              • CDinDC
                01/19/2010 at 5:42 PM

                Would that make her an accessory after the fact?

                ACCESSORY AFTER THE FACT – Whoever, knowing that an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact; one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon in order to hinder the felon’s apprehension, trial, or punishment. U.S.C. 18

                • Robert
                  01/22/2010 at 11:14 AM

                  I think to a large degree it would depend upon “what did she know and when did she know it.”

  16. Penelope
    01/20/2010 at 3:51 AM

    If Spag and Schertler are allowing Joe Price to drive the defense, they’re doing their client a huge disservice. Needham Ward needs to insist that Dylan’s high-priced legal team puts Dylan’s interests first, not the interests of a wily co-defendant.

  17. JEK
    01/22/2010 at 4:02 PM

    The stab club is just sitting back smirking behind their poker faces, and their attorney – who must know they did it — is getting indignant with the lack of disclosure by the prosecution? Good for the judge to tell him to settle down. Do the prosecutors have enough evidence to convict, even without a confession?

    P.S.: Enjoyed the murderer-cam.

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