As Seen On TV

The January 15 Status Hearing

DC Superior Court’s steam-powered rule that prohibits TV coverage of hearings has long vexed both seasoned journalists and cub reporters alike.

Not dissuaded, and taking a cue from the rascals who are reenacting the Prop 8 proceedings in California (the federal civil trial concerning the legality of same sex marriage), we offer a similar feature but without having to pay SAG rates.

The renderings are by no means precise and we apologize up front for the five o’clock shadow seen on defense counsel David Schertler and Robert Spagnoletti.  In a very brief clip, Judge Lynn Leibovitz gets things under way:

Right click the graphic to roll tape in new browser

After the jump, a longer segment featuring the key arguments that day, how much of the government’s theory on the injection of paralytic drugs and sexual assault that preceded Robert’s stabbing will make it into the trial.

The full hearing transcript follows as well.

After disposing of the defense motion to dismiss counts, Leibovitz set an aggressive  scheduling order giving both sides their first deadlines.  Today’s has Assistant US Attorney Glenn Kirschner filing some crucial paperwork.

Due today are his completed discovery, their scientific evidence and the 16(a)(1)(e) disclosure.   Leibovitz told Kirschner in no uncertain terms:

“My goal there is to have you give discovery of everything you have got.  …Just get everything you have got and put yourselves in a position to say on February 5th, we have disclosed everything we have.”

After months and months of wrangling it seems like the discovery disputes have been settled.  Well, almost.  Kirschner admitted he is, “…90 percent, 95 percent disclosed at this stage.”  Why does that sound like a long way from 100 percent?

Also due for the government today is the Notice of Uncharged Conduct I filing.  Leibovitz has broken down uncharged conduct into three separate categories:

1.  Circumstances of the murder and what’s articulated in the affidavit.

2. Things “outside the four corners of the affidavit from the night of August 2 and thereafter” that may be crimes.

3.  Uncharged conduct that is not a crime: things the government may offer at trial which they think are relevant yet which could be “prejudicial and inflammatory,”  admissibility subject to Rule 403.

But it is today’s filing, Uncharged Conduct I is what much of the last status hearing focused on:  how the prosecution is going to position Robert’s murder.  Leibovitz jumped right in:

“It would be I think hard to suggest the fact that the murder could not be introduced as evidence in this case.  And, it would be hard to suggest that the circumstances surrounding it and the evidence that the government has as to what happened during the murder couldn’t come in.

…does the government intend to argue that the defendants committed those acts.   …are you (the government) saying one or all defendants committed the murder.  Are your going to be saying a murder happened, and they cleaned it up, and that was obstruction?  Are you going to be saying a murder happened and they did it one or all, and that is why they cleaned it up, and it was the motive for the obstruction?

Or are you going to be somewhere in the middle of that saying there is certainly enough here to suggest that that is the motive.  I certainly think the implications of that for the defendants are significant.  I think they are entitled to know what your theory is soon enough to rebut that theory…”

The next deadline is for the defense, February 26.  Due is their Uncharged Conduct Response, substantive Motions and 16(a)(1)(e).

Post script: editorial cartoonist Thomas Nasty has already inquired about use of the xtranormal software.

-posted by Craig


Judge Leibovitz and Ward Counel David Scherter discuss uncharged conduct

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20 comments for “As Seen On TV

  1. Hoya Loya
    02/05/2010 at 12:21 PM

    Interesting question from Schertler for those commenters who advocate for Michael Price’s involvement: “Is their theory that one or more of the defendants in this case committed the crime, or is it that a third party that possibly these defendants knew who came in and committed the crime.”

    Also intriguing: what was the subject of the bench conference. We know that it occurred in the context of scheduling order discussions and that the discussion of “defense strategy” caused it to be sealed. Could it have been a discussion of whether and to what extent the three defendants will be presenting separate defense cases?

    • Craig
      02/05/2010 at 7:54 PM

      Hoya – Thanks for keeping my post company today. He was getting lonely.

      • Clio
        02/06/2010 at 10:20 AM

        Craig, I think that power outages due to the storm may have reduced your local Nielsens. This is one of the few times that I am glad that I live in southern and not in northern Virginia; take care, all, in this blizzard.

        “Snowmageddon ’10” may, though, be an opportunity for the Three to make even more pin money shoveling snow.

        • Nelly
          02/06/2010 at 10:39 AM

          Thanks, Craig. You are very much appreciated. That is a cute video. Reminds me of Lego people.

          • Craig
            02/06/2010 at 12:39 PM

            We can thank TV’s Doug for the videos. I should’ve shared the byline with him.

            As Clio mentioned, DC (and McLean) is getting hammered with a blizzard, alternatively called Snowmageddon, Snowpocalypse and the Great Snowgasm.

            If it gets any worse, this site could remain our only link to the outside world. In the event of an actual emergency, the authentication codeword will be “Culuket.”

            • former crackho
              02/06/2010 at 1:36 PM

              Culuket! I am stuck in Alexandria VA and have watched crime tv show for the past 16 hours.

              I loved the video, guys. The judge reminded me of a cross between Cartman’s mother and Sarah Palin. With a brain.

              • Clio
                02/06/2010 at 3:50 PM

                Culuket! At least, the Crew Club may be still open for those gentlemen interested in taking a sauna bath. But, I guess, Dyl and company cannot get there because of the weather. Bummer!

                • former crackho
                  02/06/2010 at 5:28 PM

                  They are too busy shoveling walks to pay for the next set of filings.

  2. Bea
    02/05/2010 at 8:51 PM

    First, thanks Craig for all the work – enjoyed the video and appreciate the ‘column’ and your getting us the transcript. Every once in a while it dawns on me just how much work you guys put into this. Thank you.

    Hoya, I agree about the defense argument that was put under “seal” (page 47? – right at end). I am hoping that you’re correct and there’s some divergence among the defendants. With Connolly being the one to remark ‘this was not a good day’ I can only hope that he was using this opportunity to persuade his client to separate himself from Joe/Joe-Dylan – so much is at stake with a trial of the three together and being found guilty on an even basis with Joe and Dylan may be setting in. In other words, that since this isn’t a murder trial, Victor’s complicity in the cover up makes him as guilty as the other two and as likely to do serious jail time.

    The other possibility was that they had some early sealed Motion in Limine regarding the stuff – she may have simply ruled that it was too early. Whatever it was, there WAS a sealed Motion by at least one defendant because she had the subject on her agenda, called them to the bench – wasn’t a “Your Honor, could we have a word?”

    The other part of ‘not a good day’ seems clearer in reading the entire transcript – the Judge is smart and prepared. The defense could BS Judge Weisburg but not Judge Liebovitz – undoubtedly why they fought so hard to keep Weisburg. She cut them off at the pass routinely, and all but said she’s going to be open minded about late-breaking evidence from the prosecution. Something tells me too that she’s already considering the S&M elements as being very probative (but that could be wishful thinking). She seems practical – OF COURSE one needs to go off-page to PROVE a conspiracy – rarely is a conspiracy defined clearly (as in ‘here are ALL the rules’). Even putting away the stim machine wand would be an act of conspiracy, and the stuff would contextually be necessary.

    I love that she’s willing to let the government to present in the alternative – that maybe one or more of the defendants killed Robert or maybe they KNEW who killed Robert and were covering for him – but regardless, the murder is NECESSARY to the evidence, and that puts a guilty-of-something filter on all of this for the jury.

  3. Bea
    02/05/2010 at 9:12 PM

    Dang. I wrote a long post but it disappeared into the ether. Or filters.

    • Bea
      02/05/2010 at 9:44 PM

      Weird – it’s back now.

      • Craig
        02/05/2010 at 9:58 PM

        Bea – alt dot com spelled out like this wont trigger the spam filter.

        Can you explain what government presenting in the alternative means here? XXOO

        • Bea
          02/05/2010 at 10:13 PM

          Sorry about that – keep forgetting.

          The judge said she would not force the prosecution to take a stand to say WHO murdered Robert, only that they have to give the defense some warning about what they’d be presenting (their theory). Letting it go ‘in the alternative’ means the prosecution can establish that Robert was murdered – either by the defendant(s) or someone they wished to protect – which set into motion the conspiracy, tampering, obstruction. I suspect the defendants were going to hound Weisburg into forcing the prosecution to pick one. Either to say the defendants (or one of them) killed Robert or that Michael Price or another specific person did. That screws with the jurors’ heads – what if one/more didn’t believe that Dylan ‘could have’ done the killing, so does that mean he wasn’t part of the conspiracy? It bogs the jury down into the question of WHETHER Person X killed Robert. This way the prosecution doesn’t have to be troubled by this nearly impossible element (if they COULD prove it, the charges would be murder right now) and get the jurors’ minds on the acts/inactions of the defendants – where’s the blood, why wait to call 911, etc.

          Too, while the jury won’t explicitly be told that NO ONE has been convicted of murder, the presentation may allow the jury to speculate about this and think ‘we can’t let these jackasses to go free’ – which would speak, too, to the length of sentence.

          Make sense?

          • Michael
            02/06/2010 at 1:53 AM


            Thank you for the great legal enlightenment. This helps me to comprehend some of the maneuvering that was clearly happening during the last hearing. It is unfortunate that DC Courts do not permit recording or cameras in the courtroom. Judge Leibovitz is impressive – smart, no-nonsense, and demonstrative of deep legal knowledge…all with impeccable style. From what I observed in this hearing, she brings honor and integrity and fairness to the bench.

            My hopes are that she will keep a level playing field so that the jurors can wrap themselves around the crimes that have occurred and bring some justice to this matter.

            – Michael, co-editor

            • Clio
              02/06/2010 at 10:54 AM

              The clips are very novel to me: does someone really like tennis or what?

              Schertler did look like he was just coming off “a lost weekend” and not just “a bad day” (as per Connolly), and the shoulder pads on Lynn’s 1980s red power suit were off-the-wall. I would have put in her more formal and dignified judicial robes that would have covered her blouse and bosom, but that’s just me.

            • Craig
              02/06/2010 at 1:41 PM

              Here, here! Thanks.

              Bea – Does this get to Meto’s earlier point about Kirschner wanting to keep things simple for the jury?

              And can the Govt’s straight and simpler narrative make it harder for the defense to wreak havoc in terms of seeding doubt with the jury?

              We have a March 12 status hearing set, possible Frye hearings too ahead of the trial’s start and expected motions in limine “by the millions.” as Leibovitz said. We’ve got a couple busy months ahead.

              • former crackho
                02/06/2010 at 2:05 PM

                It is extremely hard to get around the facts of the case that indicate the scene was tampered with after Robert was dead. The logical conclusion points to the three housemates, and the evidence against them for obstruction and tampering is very strong. I guess the prosecution just needs to stick to the basics, really.

                My biggest hope is that Robert’s integrity or his reason for being there fear is if Robert’s ingegrity doesn’t become a concern of the jury, and that he isn’t put on trial in the minds of the jurors. I wonder if a conservative-minded DC resident with no prior knowledge of the case will form a biased opinion when presented with the basic facts (married man staying with three gay friends, apparent sex involved, etc.).

                Please don’t take me wrong – I am not questioning Robert’s sexuality or anything like that – he is 100% victim in my mind. But I have explained this crime to some married, middle-aged co-workers, and the first thing most of them said was “well, there was probably something going on between them all”. I don’t believe that for a minute, but I do have concerns that a jury will be able to get past that idea and see the evidence for what it is.

                • former crackho
                  02/06/2010 at 2:07 PM

                  Ooops – I hit reply too soon – sorry for the confusing second para first sentence.

              • Bea
                02/06/2010 at 7:17 PM

                Craig – I do think this is indicative of good things to come for the prosecutions’ ‘keeping it simple’. Just think of the difference:

                1. WHAT IS LIKELY TO HAPPEN: Robert Wone was murdered in cold blood, stabbed three times in the chest, sometime between 10:30 and 11:49, and apparently there was sexual activity which resulted in his semen found in his rectum (not anus). Three other men were present that night – two who claim they were with Robert until 11:00. So from 11:00-11:49, Robert was murdered – and we don’t know by whom, and THAT is not the question for you. The question for you is whether the three (live) men conspired, obstructed, and tampered both before and after they called 911.

                2. WHAT THE DEFENSE WANTED TO HAPPEN: All of the same facts above BUT having to put forward a theory of how Robert Wone died, spend a serious amount of time either strongly suggesting that it could have been one, two, or three of the defendants and/or another party (Michael? Sarah? Trick?). And in that, losing the jury entirely by the defense’s game of “if you don’t know who killed Robert, then how can these men be convicted” by muddying all waters.

                Big difference.

  4. Clio
    02/07/2010 at 12:23 PM

    From the world of TV to that of books, I recommend (to Mr. Ward) a self-published autobiography of sorts that provides insights on the shadowy world of DC’s male escort services around the turn of our century: Mack and the Boys, by Malcolm Stallons. For his latest bedtime activity, Dyl may want to read it in part because it delves into the ambivalent feelings of being a kept man. Although most of the escorts in the book were much younger than Dyl, I’m sure that he could identify with their marginalization and anomie.

    Mr. Stallons was a Kentucky journalist who chose to run an escort service in the federal capital — well into his own middle ages: is there a large Kentuckian diaspora in the metro Washington area, Editors?

Comments are closed.