Uncharged Conduct: Defense Response

Defense:  Semen Is From Postmortem Process, Not Sexual Assault

A flurry of motions in the Robert Wone case hit the DC Superior Court with a ferocity to match last month’s Snowmaggeddon, as the defense sought to fortify their position that Robert Wone was not incapacitated or sexually assaulted on the night he was murdered.

This came in their joint response to AUSA Glenn Kirschner’s blistering motion of uncharged conduct which stated Robert Wone was, in fact,  incapacitated and sexually assaulted before he was murdered.

Also discovered in the mounds of paper swirling around at the Moultrie Court House were defense motions to sever the defendants from a trial with each other, as well as to suppress involuntary statements.  We will tackle those motions in the coming days this week.

But, first, after the jump, let’s jump feet first into the defense’s joint response to the Uncharged Conduct.

The defense contends that the government has no evidence to show Robert was incapacitated or sexually assaulted, so therefore it can not be entered at trial.

On the incapacitation charge, the defense argues that all blood tests came up negative for any incapacitating drug.  They reveal for the first time that the only drug found so far in Robert’s system was atropine, which is an alkaloid drug frequently given in medical intervention or emergency room situations.  AUSA Pat Martin’s office confirmed that indeed atropine was administered by medical personnel to Robert.

The defense is very sensitive about the government entering the paralytic agent succinylcholine without a positive test from Robert’s remaining blood sample.  This is a little surprising in light of defense’s confidence that bordered on cockiness as they taunted the government to test away, because they were so sure that no paralytic agent would be found.

The defense’s strongest argument comes in their refutation of the purpose of the puncture wounds.  After examining the autopsy report, the EMS report, and GWU Hospital ER records, they write:

“Those records document that GWU medical personnel attending Wone necessarily caused a number of puncture marks while attempting to save his life.  The EMS Report produced by the government likewise documents that the EMS responders made puncture wounds in Wone during the course of what was ultimately an unsuccessful effort to obtain intravenous (IV) access.”

The defense also zeros in on Robert’s semen being found in his genital and anal regions as the sole evidence of the government’s sexual assault charge. They draw a distinction about what was actually found on Robert was not “sperm” but rather seminal fluid.  This is important to their argument since:

“Indeed, it is well documented in forensic pathology literature that seminal fluid and urine are commonly secreted by men as part of the postmortem process: “muscle relaxation immediately after death explains the finding of leaking out of urine or seminal fluid…”

If the defense contends this is result of the postmortem process, then it would also follow that the seminal fluid should have been found on Robert’s underwear just as it was on his genital and anal regions.  Robert’s underwear was tested, and nothing about seminal fluid is mentioned, which suggests nothing was found.

If that is the case, does this argue that seminal fluid seeped out when he was nude?  If he was nude when this happened, it wouldn’t be consistent with the defendant’s story.

There are a lot of unanswered questions here.  For example, when does a corpse begin to seep seminal fluid in the postmortem process?  Is it immediately after death, or several hours later…and was Robert dressed the entire time?   If it happens immediately afterward, Robert should have been dressed, according to the defendants’ statements, as they found him dressed when they discovered he had been stabbed.  For now though, the lack of seminal fluid being found on Robert’s underwear seems to be a significant hole in their argument.

The defense concludes that since no evidence supports sexual assault, none of the BDSM materials should be allowed into trial, and request an evidentiary hearing to settle the matter.

–Posted by David

36 comments for “Uncharged Conduct: Defense Response

  1. Nelly
    03/03/2010 at 10:05 AM

    Oh, lord, give me a break! They’re claiming none of that is relevant?! I sure hope those lawyers got paid a big flat fee instead of being paid by the hour, because this is a steaming pile of caca!

  2. BenFranklin
    03/03/2010 at 10:32 AM

    No drugs were involved-no restraints, no sexual assault or torture. All of these unfounded allegations were cooked up by the EMS, the bigoted detectives, the under-qualified ME, and the desperate prosecution to neatly fit their initial “come to Jesus” hunch.

    The murder was a sudden, unexpected, stunningly forceful stabbing by a person known to and trusted by Wone.

    • former crackho
      03/03/2010 at 10:56 AM

      My kitty wants to watch a scary movie.

      • Nelly
        03/03/2010 at 11:24 AM

        Three may keep a secret, if two of them are dead.

        • John Grisham
          03/06/2010 at 9:22 PM

          Two cats will volunteer their lives to keep a secret.

          • AnnaZed
            03/06/2010 at 11:14 PM

            ….but which of their lives and how many do they have remaining?

  3. AnnaZed
    03/03/2010 at 11:19 AM

    By what process of postmortem seminal fluid migration does seminal fluid find its way into the rectum one wonders.

    • Bea
      03/03/2010 at 11:05 PM

      My thought exactly. I didn’t see anything about post mortem seminal fluid being secreted in one’s rectum.

  4. Hoya Loya
    03/03/2010 at 11:26 AM

    Robert was stabbed three times resulting in clean, neat wounds with no jagged edges or tearing or other defensive wounds. This filing not only ignores that fact but also, incredibly seems to be sticking to the elves defense (we had nothing to do with any of this) and the victimization defense (we’re being persecuted because of our orientation/lifestyle).

    This brief is not as compelling as the one from the prosecution. Much of it raises issues of fact, which should be issues for the jury, and then falls back on alleged prejudicial effect to try to keep the issues from ever going to the jury.

    As hard hitting as the prosecution’s brief was, it fairly, with as little sensationalism as possible, demonstrated why the evidence was more probabtive than prejudicial. Robert was not staying overnight at a convent when he was stabbed and the evidence does provide a context and possible explanation for the condition in which he was found.

    To the extent this follows the same old line of defense — we didn’t do it, don’t know who did, leave us alone — I suspect that former legal partner Joe is still heavily involved in these filings.

  5. Where's The Justice?
    03/03/2010 at 12:55 PM

    Did any of the defendants ever visit the El Mirage club in NYC which was shut down by authorities in 2006? Roger Parloff from Fortune Magazine has a story on the topic:


    • former crackho
      03/03/2010 at 1:15 PM

      They didn’t have to go that far – the “Men’s Parties” on 14th & Corcoran (recently closed down after a man was found dead in the basement) ran the same type of operation. And the boys could walk there.

      • John Grisham
        03/06/2010 at 9:29 PM

        With all due respect, you and the girls’ perspectives on this sex crime are blurred.

        • Bea
          03/06/2010 at 11:59 PM

          John, so there was no sex crime? I’m of the opinion (as you likely know) that no one expected to kill or assault Robert until “something” went awry. Either he said ‘no’ to drugs and sex, or one of them, and being that Joe/Dylan were juiced to the gills, the scene turned nonconsensual and then violent. You thoughts on just this nugget? FYI I don’t know if Michael was there or not but don’t see it altering the above by much.

  6. AnnaZed
    03/03/2010 at 2:17 PM

    Ok, for the purpose of argument lets take at face value these defense contentions that (a) it can’t be proven that Robert was injected with any drugs and (b) it can’t be proven that Robert was sexually assaulted. Does this in any material way change the charged conduct of obstruction, conspiracy and tampering?

    Further, I wonder if going too far into this area might just become some sort of distraction as the government exerts itself to demonstrate these (for the sake of this argument) contestable assertions and the defense pushes back by arguing minutiae and screaming bias. Shouldn’t the prosecution keep their proverbial eyes on the ball, which is the charges that are on the table now?

    Regardless of what happened to Robert before he was fatally stabbed that night he was in fact fatally stabbed and died at Swann St. After he was killed, a series of significant and criminal (not to mention craven and entirely abhorrent to any civilized notion of how to treat another person) alterations were made to his person and to the place where he was found; including the cleaning off of floor boards and walls, cleaning or washing down his skin, dressing him in clothes that he could not have been wearing when attacked (deceptively making rents in his shirt in an attempt to make it appear that he was wearing those clothes when attacked), repositioning him on clean linens, substitution of the murder weapon itself and gross (also grotesque) failure to summon help for an injured person or give any aid or comfort to him over a (to a dying man) rather long time period. As just one example, the claim that Joe was pressing a towel to Robert’s wounds made by Victor to the 911 operator is demonstrably false.

    For now, the defense is sticking with (as they must) the elves theory of an unknown perpetrator magically killing Robert and dematerializing himself or herself over the back gate. It still, to my mind anyway, leaves the trouple without any defense whatsoever against the charges themselves and no possible legally defensible explanation for the acts alleged. Even if they continue to brazen it out and face a jury rather than plead, nothing, but nothing, can make these facts go away.

    Again, I am left wondering if they have no choice but to take their medicine on the tampering, obstruction and conspiracy charges and stay mum about the facts. Naturally, here at this site we can conjecture endlessly as to why these men did these reprehensible things, but doesn’t a jury just have to conclude that they did them and the game is up?

    As we get closer and closer to the day that the cuffs lock into place we will see who has the minerals to look certain incarceration in the face and keep his own counsel as to who murdered Robert Wone.

  7. former crackho
    03/03/2010 at 2:47 PM

    I sometimes wonder why they are getting into all of the paralytic/assault stuff without this being a murder trial. The tampering/conspiracy/obstruction charges seem to stand on their own regardless of how Robert died, so why not just concentrate on those charges and what they did with the body between the time it was “discovered” and when the paramedics arrived. Is the prosecution setting the stage for something more?

  8. Clio
    03/03/2010 at 9:09 PM

    Deny and delay on Needham’s dime sure is becoming tiresome: even Joe must know that the Jesuitical distinction between sperm and seminal fluid will not hold with either Lynn or a prospective jury.

    And, I’m sure, that, according to Joe, the recreational drugs found in the house were planted there by police — who is putting together this paint-by-numbers defense?

  9. tim
    03/04/2010 at 2:24 AM

    As a disinterested observer sympathetic to the victim, I think this briefing raises some pretty compelling arguments that the forensic findings don’t strongly support a finding of sexual assault.

    First off, let me get a megaphone and some big flashing lights and point out this journal article here, which the defendants (quite properly!) cited as footnote 78:

    Dudes from Finland say that when they tried out the same kit that was used to test Wone’s swabs on rectal swabs from some random cadavers that nobody expected to have been sexually assaulted, *64%* of the male cadavers tested positive in exactly the same way Wone did. The swab tests that were performed on Wone are worse than meaningless. The kit flat out doesn’t discriminate at all. Did the lab even think to validate their testing protocol? Unless there’s more to this story, it’s the lab that’s guilty here — of a shocking breach of professionalism.

    Let’s talk about how this works. There’s roughly two things in semen: sperm… and everything else. Right?

    Sperm means sperm cells: you can actually, physically, directly see them under a microscope. With the possible exception of Woody Allen, nothing else looks like a sperm cell. You *never* find sperm outside the testes that didn’t get there in a puddle of semen (though establishing *whose* is of course a bit dicier). There’s just no doubt.

    They didn’t find any of those. Already, that’s a little problematic for me. In a drop of sperm about the size of the period on your keyboard — 0.02% of a teaspoon — you’d expect to find about 20,000 of the little guys. But let’s say that doesn’t matter: the samples were too small, they weren’t quite in the right place, Wone’s body wasn’t in the best shape at that point, the lab technician looking at the slide was sleepy and missed a few, whatever. What else can we look for?

    “Everything else” is a lot dicier. You can’t *see* anything else in semen, especially when you’re looking for such small quantities. This just got a lot harder than just looking under a microscope: you have to rely on tests and assays that can react to an infinitesimally small amount of material, which (speaking as a molecular biologist) adds a *lot* of room for something to go wrong. Semen’s a complex mixture of proteins and chemicals, nearly all of which are produced in other parts of your body. Luckily, there are a couple that you’d mostly expect to find in semen.

    One of them is PSA, prostate-specific antigen, which is a protein made in the prostate. They used an antibody assay to look for it. Antibodies are great because they have great specificity: acquired immunity works because antibodies to a specific protein usually don’t react with anything else, and you can attach fluorescent molecules to them so that they light up like a Christmas tree when they bind to the target. But it’s not perfect: if something’s not quite right, antibodies can bind to a lot of things besides their target. For example, maybe there’s something sticky in the sample that grabbed the antibody. I spent an entire summer debugging an assay like this. Just getting signal back doesn’t always mean that you found what you were looking for.

    The test kit was designed for blood serum. They tested it on a swab from anal tissue. It’s not really reasonable to expect that the kit would just work: those are totally different conditions.

    So we know the test doesn’t work and (surprising, to me) there’s no soft tissue damage or bruising or any physical evidence that Wone was subjected to anal or genital assault. And if they found lots of lube, wouldn’t they have mentioned it?

    I really do think the defendants are guilty of something. I really don’t think monkeying with Wone’s junk was it. To take this briefing at face value, it sounds to me that the evidence for one of the most lurid claims of this case has been vastly overinflated.

    • Nora
      03/08/2010 at 8:26 AM

      Tim’s post really bothers me. At some level, the whole rape/forced ejac theory (in those circumstances and in that timeframe) seemed a bit far fetched. Now I’m wondering if I went along with it mainly because of personal baggage.

      Can we resolve this, if possible? Why were no sperm cells found, is that a normal result in such testings? Had Robert undergone a vasectomy? Is it true that his body sustained none of the physical trauma usually associated with this kind of assault?

      Tim’s thoughts have given me just enough uncertainty to start wondering about motive again. It also bothers me that few people seem to want to touch this one.

      • David
        03/08/2010 at 9:17 AM


        You would make a perfect juror that the defense wants to have seated. You are willing to question the evidence, and have a probing intellect.

        While the defense raises good questions about the validity of the government’s theory vis a vis their evidence to support sexual assault, I urge you to continue to question the evidence.

        The defense now wants objective thinking folks to believe that Robert’s semen was the result of the post morten process, not a sexual assault.

        They cite a study which shows that 65 percent of dead males were found with the p30 which is essentially the semen compound in their rectrum.

        What they don’t cite is how many of those 65 percent also found p30 all around the the genital area and around anus of other males? This needs to be answered as well.

        Second, Robert was stabbed, while he was clothed. No semen was found, or at least it has not been mentioned, in his underwear. You would expect seminal fluid resulting from the post mortem process to also be found in his underwear. And all rape kits always check victim’s underwear for any signs of DNA, and nothing has been mentioned.

        If Robert was murdered by an intruder, and seminal fluid was released, it should have been found in his underwear. If it wasn’t, that seems to indicate that it was released before he was dressed, and actually it now could be evidence that the body was cleaned in furtherance of the cover, conspirarcy and obstruction.

        The defense needs to be careful for what it wishes for here.


      • Hoya Loya
        03/08/2010 at 11:00 AM


        I know from working in a top-notch plaintiff’s firm for a time that if you look hard enough, you can usually find science to support whatever position you might want to put forth in court.

        In this case, I would take into account, when weighing the evidence, that the defense does not cite a wealth of studies in its favor but rather had look to Finland to dig up a single obscure study on point.

        Also, the defense seems to be challenging the post-mortem testing as somehow botched, but if the medical examiner followed standard protocol for use of the rape kit in a possible case of male on male rape, that the results will be difficult to counter.

        As a theoretical juror, your ultimate decision would be based on the credibility of the experts presented by both sides (and you can bet the prosecution will present a “majority opinion” to counter the Finnish study) and the weight you ultimately assign to the testimony.

        • CDinDC
          03/08/2010 at 2:26 PM

          Nora, David and Hoya,

          We could look at it their way….perhaps the fluid on Robert’s body WAS seminal fluid that leaked out post-mortem.

          But that doesn’t mean that there was NEVER sperm on Robert, and that the material found in Robert wasn’t sperm. It’s inconclusive.

          Remember, Robert appeared to be washed and redressed. Perhaps they washed the sperm from his body, but during the assault a small amount of seminal fluid was forced into Robert’s body PRIOR to a forced ejaculation. This makes sense to me since he may have been violated with the intent of making him ejaculate, which means, something may have been inserted in his body prior to Robert’s forced ejac. (Please pardon the graphic nature of this post.)

          Besides all that….doesn’t seminal fluid leak out in very small amounts? It seems to me that there was a larger about of substance on Robert’s body.

          • CDinDC
            03/08/2010 at 2:27 PM

            I should have mentioned that seminal fluid can leak prior to death as well.

  10. AnnaZed
    03/04/2010 at 2:41 AM

    Tim, thank you so much for this and for your professional insight.

    I have a question though; in the cited study doesn’t it say that the Finnish dudes were taking swabs from “decomposed cadavers… with a PM interval up to 136 days?” What (if anything) does the decomposition have to do with their findings? Robert’s body wasn’t in much of a state of decomposition when examined, was it?

    • tim
      03/04/2010 at 3:03 AM

      That’s a good question. I’m not immediately sure.

      The filing (top of page 20) says an autopsy was conducted on August 3, 2006, the day after the murder. It’s not clear to me if that’s when the swabs were taken or not.

      I don’t immediately have access to the full text of the Finland paper and it’s hard to tell without reading it how soon they started taking samples but they did mention in the abstract that 58% of male cadavers “with no putrefaction signs” tested positive. A little bit of Googling suggests that putrefaction begins within 2-3 days, which suggests to me that there’s good odds that we’re still in trouble.

      • Bea
        03/04/2010 at 3:14 AM

        Thanks, Tim – who pointed you in the direction of the Finland paper (since you don’t have a copy of it)? Is this your specialty (and is that in forensics)? Welcome.

        • tim
          03/04/2010 at 3:30 AM

          It’s footnote 78 of the briefing.

          I’m definitely no forensic scientist and I probably should have said that without having been asked. I’m actually fresh out of undergrad as a bioengineer, so you’d be well-advised to take any grand statements I make with a grain or two of salt. 🙂 Right now I work on machines for purifying DNA out of very dilute or highly contaminated samples, so I’ve been working with some forensic science researchers; mostly they tell me I’m not being paranoid enough.

          • Craig
            03/04/2010 at 9:05 AM

            Tim the Science Guy: Thanks very much for your efforts on this. Craig & Co.

        • David
          03/04/2010 at 12:18 PM


          My thoughts on the sperm vs semen issue comes down to a broader discussion of how the defense is using these scientific results to bolster their case. Without having deep knowledge in this area, I also need to hear more from the prosecution’s analysis.

          Just as Judge Liebowitiz found the motion to dismiss lacking a sound legal basis, are the findings here lacking a sound scientific basis? Yes, this is one study. But I found the study when I googled it, and I thought to myself, “Did the million dollar defense just google this study, or did they do they research to determine these findings?” I don’t know, I need more information, but the defense’s track record for cherry picking the information they present at such absurd levels should not be discounted when considering this information as well.


      • Penelope
        03/04/2010 at 1:35 PM

        The murder occured sometime after 10:00 pm or so on August 2; the autopsy on August 3 would have been within 24 hours of Robert’s death.

    • tim
      03/04/2010 at 3:20 AM

      I found the paper; here’s a copy:

      It sounds to me like their findings still apply, even with a quick autopsy. They only summarize their data; they’ve grouped all of the bodies without obvious signs of decay together, ranging 2-7 days post-mortem. They say that the positive test rate is higher for bodies in “advanced” states of decay than the fresh ones but they don’t say whether the 7-day-old bodies were more likely to test positive than the 2-day-old bodies. It’d be odd not to mention it if there were a big difference, though.

      They do suggest a mechanism for finding PSA in the rectum, too: PSA may normally be found in small amounts in the cells lining the rectal wall, which starts to fall apart quickly after death.

      (Well, this is cheery!)

  11. Friend of Rob
    03/04/2010 at 9:45 AM

    I’m at a loss as to how Joe and Co. are going to put forward any kind of a cogent theory as to how the elves could have done it without any of the trouple taking the stand.

    I think that the prosecution is going to put in just enough of the S&M evidence to suggest a motive to the jury without requiring the jury to believe that motive to return a guilty verdict.

  12. BenFranklin
    03/04/2010 at 11:15 AM

    It is now apparent that the defendants & the Wone family suffered immensely from the government’s shameful incompetence & misconduct.

    I am comforted to know that Wone was not sexually assaulted.

    This mess won’t go to trial.

    • CDinDC
      03/04/2010 at 11:36 AM

      Has anyone seen my keys?

      • Nora
        03/04/2010 at 11:47 AM

        Are they on a “can o’ whupass” opener keychain? Or are those Anna’s?

    • SheKnowsSomething
      03/04/2010 at 1:20 PM

      You are comforted simply by running your cakehole.

  13. Penelope
    03/04/2010 at 1:30 PM

    Is the government’s case for obstruction and conspiracy weakened if evidence of sexual assault (i.e. the motive of the murder) is excluded? I rather doubt it. Perhaps the prosecution has been sending the defense down a rabbit trail in hopes of distracting them from key elements of the case.

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