NSFW

Not Safe For Wone

Last week’s filing of the Government’s Notice of Uncharged Conduct I generated a fair amount of light and heat in the Robert Wone case.  The ‘light’ column features highlights of the government’s position – that the murder investigation “…continues”, that the “…killer is someone know [sic] to and being protected by the defendants,” and that the “…government may (emphasis ours) seek to introduce this theory of incapacitation…”

Leather Pride Flag, a symbol of the BDSM and fetish subculture

In an overwhelmingly accusatory document, the key word here is may, suggesting the government fears its biggest hurdle remains the apparent absence of positive proof that Robert was chemically incapacitated.

But it was the 10-page “Attachment A” – squarely on the ‘heat’ side of the equation – that led to a squirming, car-crash, ‘ick’ response for many.  Well, ‘ick’ mixed with ‘…wha?’

A Wartenberg wheel?  Padded fist mitts? (“…beautifully made…” says this cheery retailer.)   A CB-3000?  (now in a helpful plastic version for traveling by air!)  A urethral sound device?

Are you kidding me? A What?

Look, none of these four editors are ingenues or all that naive.  We’ve collectively seen our share.  And to be clear, a fair share of the many, many items seized from 1509 Swann hardly rise to the level of a cocked eyebrow.

Harnesses, chains, arm bands, hoods, black leather jock, leather blind fold, paddles, collars, ‘Industrial-style’ knee pads…yawn.  The list goes on, and yes, some of the items go well beyond bland sex play.  But they are all legal, and possessing one or all of them does not constitute a crime.

Frankly dwelling on this S&M shopping list (or inventory for eyecandydvds perhaps?) seems more hathos than trying to gain a better understanding of the crime.

That it is cited in such detail serves two serious purposes.  First, let’s be frank: it was an effective way for the prosecution to keep pressure on the defendants and garner a little more press (got you all to come here, didn’t it?)  The second is far more important, and much more dull.  Collectively, the items of Attachment A strongly argue for their admission in trial by way of Johnson v. United States.

Johnson strikes to the heart of what evidence is admissible, and the variance between that which is probative vs. prejudicial – already a key battleground in the Wone case.   It involved a rather limited question of whether a bullet-proof vest could be admitted as evidence in the gun-possession trial of one Lamont Jones.  Without getting into the legal weeds, Johnson amplified 1964’s Drew v. United States and set a new DC Court of Appeals standard.

“Specifically, Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.”

To this non-lawyer, test #3 is a no-brainer, and a strong case can be drawn in the Wone murder for test #2.  But direct and substantial proof of the charged crime?  After all, Johnson involved a murder with a gun.   The argument could, and may well be made of the differences between a gun – an inherently lethal item – and a black leather jockstrap.

But according to homicide investigator Dallas Drake of the Center for Homicide Research, some perfectly legal objects or activities:

“There are some aspects of S&M culture that are inherently dangerous.  Of course, S&M is highly stigmatized, and I don’t want to add to that.  But the reason we call some behaviors inherently dangerous is because the have a high possibility of causing death.”

For example, Drake cites breath-control play, where one person temporarily asphyxiates their sex partner to increase the sex “high.”  Such behavior may not be illegal, but it is inherently dangerous, because it runs so close to accidentally taking the life of another.  Similarly, possessing a gun may not be illegal, but picking it up is inherently dangerous because of the high probability of injury or death.

So in a crime where the victim was apparently restrained, sexually assaulted or tortured, and ultimately “…dominated in the worst possible way: he was killed,” the fact that dozens of restraints, items used for sexual torture, and any number of books and other objects aimed specifically at dominating and degrading another seems clear to meet the Johnson test.

posted by Doug

24 comments for “NSFW

  1. dc_emily
    02/22/2010 at 10:57 AM

    Great post, guys. The laundry list of items certainly will face the probative/prejudicial test. In reading it over, the sheer volume seems to me to be slightly prejudicial or will at least garner such an argument from the defense. As you mention, alot of the items are pretty run of the mill. While the argument can be made that it is all relevant, and therefore admissible, because it provides context for the occurrences of that night (or alternatively into the character of the defendants), I think the better route for the prosecution is to limit the items it seeks to introduce into evidence to those that cross the line into “dangerous” territory. Otherwise, there is a risk that evidentiary rules will stunt the case when it’s finally getting some steam.

    Any more news/background on the Michael Price issue? The missing class on Aug. 2 is really intriguing. . .

    • CDinDC
      02/22/2010 at 11:12 AM

      Aug. 2 is, indeed, intriguing. I’m interested to know if there was a concrete alibi (with evidence to back it up.) Not just I was at Joe Schmoe’s house. (Without an a concrete alibi, I’m not necessarily going to buy that Michael was involved…..still can’t grasp Joe taking the fall for Michael unless something else was involved.)

    • David
      02/22/2010 at 11:51 AM

      dc_emily,

      More coming about Michael Price shortly. Stay posted.

      David, co-ed.

  2. SheKnowsSomething
    02/22/2010 at 1:13 PM

    Dallas Drake’s comment on the inherent danger of some S&M activities is interesting – particularly the bit about breath-control. As I recall, the medical examiner reported evidence of Robert having suffered an asphyxial event. Do we now see one more thread in the murder charge that the prosecution is, no doubt, weaving?

    • CDinDC
      02/22/2010 at 1:58 PM

      Oh yikes…..that never occured to me….I’ve always thought Robert was unsuccessfully suffocated, which resulted in stabbing as a means to kill Robert.

      Very good point, SKS.

  3. Bea
    02/22/2010 at 2:14 PM

    Eds., good post. There are many ‘yawn’ items on there, and I agree with Emily that the prosecution will pick its battles as it comes closer to the judge’s ruling – the key points being that the prosecution wants the jury to see that these defendants (or two of them) were quite the hobbyists in the areas of pushing the limits in BDSM and had what appears to be all the toys a boy could want – and need – to get someone to the brink, as SKS points out.

    I do see the probative outweighing the prejudicial (and in this admit my own prejudice) because the means for making Robert ejaculate against his will were all stacked up in Dylan’s closet.

    CD (and others) – think about the importance of the restraint devices in the context of the trial. If the defendants are successful in stopping the paralytic drug theory from coming in, they still have to deal with the jury’s mental picture of Robert in restraints so snugly fitting that no marks are left – and one could certainly argue that a fully conscious Robert is (for me) a worse image than a drugged one, given what occurred to him after the fact. Was he staring into the eyes of the killer as the knife was wielded? Which is worse – the defense needs to be thinking ‘careful of what you wish for’.

    • CDinDC
      02/22/2010 at 2:50 PM

      Good point re the restraints, Bea. In that vein, SKS’s post re the ME reporting evidence that Robert suffered “an asphyxial event,” is particularly important.

      The defense was very cocky when it came to ruling out drugs (they basically said go ahead and use all the available blood samples…they will yield nothing)…but are they as cocky about the restraining devices? Robert was clearly immobilized in some manner…..the lack of defensive marks speaks to that. (I still believe it was drugs that immobilized him, but get it where you can.)

      • Bea
        02/22/2010 at 3:28 PM

        Agree, CD. And, frankly, it wouldn’t surprise me at all if the boys weren’t keen on using all the equipment they’d spent money on (and, for Dylan, time in the sense of learning about them) – even after doping Robert, they well could have used restraints as a means of doing “things” to him (I shudder, must use amorphous “things”). Addition to wanting to use their toys, they may have found it interesting in case he did ‘wake up’ for parts – wouldn’t COUNT on the K to keep him at optimum consciousness/unconsciousness. If he was truly drugged, there would be no restraint marks, but even if he was partially conscious, he may not have struggled sufficiently to make marks.

        I’m now of the opinion that some measure of restraints may have been used – and while I hate to say this – in part for the photo ops created if that was part of the sick f*ck mentality they had that night. The lack of upscale camera/vid equipment does tell me that there were, indeed, pix and video removed with the bloody towels, cleaning tools, and the ‘real’ knife.

        Scum of the earth.

        • Hoya Loya
          02/22/2010 at 7:10 PM

          I was blown away by the gutsiness of the prosecution’s filing. They are going for it all, which I suppose makes sense if one assumes that it will be cut down no matter what. But I’m thinking it’s all coming in. Imagine if you are a juror and only a few of these items, or none, are placed before you and you acquit. Then afterwards you find out the extent of the trouple’s collection. I’d be furious. I think the judge will decide that the jurors have a right to have this information in their deliberations. The huge inventory shows that these guys did not have a few odd toys around the house, were not dabblers, but rather immersed. and seemingly keeping it all a secret from even close friends. Robert likely had no idea what he was walking into that night and the collection drives home that his hosts’ hobbies were not gardening or knitting.

          And I agree that part of the brilliance of the filing is that, if the evidence comes in, the prosecution is free to argue physical restraint in addition to or even without the use of drugs. In fact, it really drove home the too awful possibility that any or all of these items might have been used to restrain and torture Robert who may or may not have been conscious. If Robert had died in a fall or other accident without evidence of sexual assault, this stuff would be prejudicial. If he died fighting, with defensive wounds to show, it would be prejudicial. But in a case where there is evidence of sexual assault and no evidence of defensive wounds, I think it all, collectively, becomes heavily probative.

          • Bea
            02/22/2010 at 7:59 PM

            Agree as to at least a large percentage coming in – perhaps not the ‘spacer bars’ (don’t want to know more) but anything relating to restraining and milking and probing, which most of this appears to (arguably) be about. My favorite part of the filing was the comment phrased as if in passing to suggest that the photos of Joe-as-slave would come in to suggest that this was not ONLY Dylan’s hobby but Joe’s as well (of course, in addition to his alt dot com profile).

            Connolly has to be going nuts with wanting a different trial if not just a different jury for his client, Victor, and because I don’t know relevant law on this issue, my guess is that that ship has sailed. He HAS to be having some heart-to-hearts with Victor about how bad this looks to the average jury – and even though he’s not explicitly tied to the paraphenalia like Joe (“time for my close up, Mr. DeMille”) Price, this stuff spills over in a big way.

            Who can testify (or would) that Victor was NOT part of these particular parlor games? I keep wondering about testimony, assuming the defendants don’t take the stand, in terms of what did and did not happen that night. Yes, experts galore for the defense, but what else before ‘the defense rests’? How to DENY any of this unless a defendant takes the stand? We know Dylan won’t, and Victor won’t (unless he stays strictly with ‘I woke up to all this’ and does NOT open the door for cross to go into the slimy details, and frankly, I think so much has to be ‘opened’ by any meaningful testimony).

            So that leaves Joe – any lawyer would tell him NOT to testify but we’re talking about an egomaniac if not an NPD or sociopath here.

            My fellow lawyers here in particular – how do you think they’ll play the testimony (sans experts, I mean)? Sarah leaving and calling about the chime, check. But after that?

            And can’t the prosecution call Michael Price to the stand? Methinks so. And if he takes the Fifth, the prosecutor will be jumping for joy. If not, all hell is likely to break loose.

            • Craig
              02/22/2010 at 10:37 PM

              Bea: Michael Price may indeed be called as a character witness. Another document just surfaced showing this.

              Tune in tomorrow for the details.

              • Clio
                02/22/2010 at 11:28 PM

                OMG — for whom and by whom? I cannot wait to find out!

                Can anyone be so desperate as to have the younger and lesser Price vouch for them? It truly boggles the mind!

          • former crackho
            02/23/2010 at 12:26 PM

            I can only pray that Robert was drugged and didn’t know his fate at the hands of his “friend”.

            • Anonymous Friend
              02/26/2010 at 12:35 AM

              Amen.

  4. bill shatner
    02/23/2010 at 3:14 PM

    I’d like to suggest a book you may be interested in: The Sociopath Next Door; it came out a few years ago and gives a sobering understanding of sociopathic behavior. The bottom line of the book is this: most people think sociopaths are an exception; the book argues that 35% of society are sociopaths, but how this is manifested depends on many variables, such as background and opportunity. This explains why some people grow up in traumatic environments and emerge as caring, compassionate people as a result of their experiences while others simply become socioathic whether or not they had difficult backgrounds. The top occupations attractive to sociopaths are: lawyers, law enforcement, religious leaders, and, oddly, airplane piolets. These occupations allow for manipulation and control.

    • Bea
      02/23/2010 at 3:25 PM

      Hi Bill – any thoughts or insight on what you learned as it relates to Joe Price? From what I’ve read, this makes sense – kind of like the line between genius and mental illness is in part whether you can make rational grabs of data. Or the brilliance of some autistic folks (the cattle shute woman whose name escapes me). Not to suggest that Joe is brilliant – I expect he’s of above average intelligence – more that he’s of the ilk who found success and power but needed more and grew out of touch as to what lines could/could not be crossed to maintain the facade. The catch-me-if-you-can mentalities of certain politicians are worth considering in this context, too, yet for J Price, if you add in drug and alcohol abuse and a 1950s wife (Victor) who you use as a conscience, it seems a linear path to where he landed. Armchair psychology, of course, and a bit of my own sense of trusting (overly so?) my own judgment – being that I’m a lawyer and among those controlling times referenced (and I recognize my tendencies).

      • David
        02/23/2010 at 7:47 PM

        Bea,

        The cattle shute woman is Temple Grandin. I knew nothing about her until I saw the new HBO movie about her starring Clare Danes. Her story is remarkable.

        David

    • Doug
      02/23/2010 at 7:11 PM

      Bill;
      Actually, this book was recommended to us in a recent interview we conducted. None of us are wanting to conduct a long distance diagnosis, but a number of the insights in this book seem revelvant. We will be specifically addressing forensic psychoanalytics soon – any questions that arise for you please feel free to send our way.
      -Doug, co-editor

      • Nelly
        02/23/2010 at 8:30 PM

        It’s interesting that the sociopath book includes as case examples a 30-year-old attorney named Joe and a rich spoiled loser who tortures frogs.

  5. 02/23/2010 at 9:12 PM

    I would imagine there’s a good chance that if the accused are in fact guilty of the sexual assault and murder of Mr. Wone, that they have done acts of violence against innocents before; of course there is always a first time, but given their age and the extent to which they were vested in the culture. So, my question is if an effort has been made to find other victims who would be willing to testify against them? My guess is they choose victims who they feel will not testify or bring charges, a strategy many date rapists and pedophiles count on, and so they would presumably be no different. Has some bulletin gone out – posting their photos, etc, asking for anyother victims to come forward to receive support?

    • Craig
      02/24/2010 at 9:07 AM

      Wentworth: That’s an unknown. I’m going to guess that the authorities have made such an effort.

      Yet there have been so many holes and dropped balls in the investigation it’s hard to have complete confidence in their thoroughness.

      Thanks for linking to us.

    • AnnaZed
      02/25/2010 at 2:04 AM

      I keep hoping that one of these times when the story pops up on Gawker (particularly the recent post with pictures of all three men) some trick who had been over-mistreated, a friend who woke up feeling very odd after spending a night with them or someone else that they may have attacked might recognize them and come forward, but if they have I don’t know about it. At any rate, more visibility for the unsolved crime itself and the conspirators is good.

  6. Clio
    02/24/2010 at 6:54 PM

    I wonder if the National Archives can acquire the trouple’s photos from Tuscany; it could be useful to future historians grappling with early twenty-first century decadence. The Grand Tour never felt so small!

  7. Clio
    02/27/2010 at 9:24 AM

    This question is for Dylan:

    How would one use a Wartenberg wheel for entertainment purposes only?

    Cite your sources in MLA form. Thanks.

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