Miranda Warning(s)

Were 4th, 5th & 6th Amendment Rights Violated?  >Update @ end<

In a busy week of motions and filings these two stand out.

Ernesto Miranda

If,  as the defense contends, Ward and Zaborsky were not properly ‘Mirandized” on the night of Robert’s murder, anything gleaned from their marathon interrogations must be ruled inadmissible.

 

In separate Motions to Suppress, Ward and Zaborsky claim they were unlawfully seized, held and interrogated.  Aside from the original affidavit and Paul Duggan’s Washington Post series, these two documents offer the best look at the events and choreography of the early morning hours of August 3, 2006.

“Shortly after MPD’s arrival, one of the MPD officers directed Zaborsky, Price and Ward to sit down in the living room.  The same officer directed a uniformed officer to watch the three men.  Price suggested to Zaborsky and Ward that they should all get dressed and go to the hospital where Wone was being transported.  The same plain-clothed officer instructed the men that they could not go to the hospital, that there were to remain seated… and that they were not to move….

“Eventually, after more than a dozen officers had entered the home, an officer directed a uniformed officer to escort Zaborsky, Price and Ward upstairs, one at a time, to get dressed…  Each of the three men was taken upstairs and watched while they dressed, and then taken back downstairs.  Zaborsky, Price and Ward were then told they were being taken to the police station for questioning.

“Zaborsky was instructed by an MPD officer to get into a patrol car…between approximately 12:30 and 1:00am… (Zaborsky) was escorted to an interrogation room, where he was left alone with the door locked.  The room was small… (and) a length of chain was bolted to the floor.  The detectives did not read Zaborsky his Miranda rights….”

The transcript as Act I of Good Cop, Bad Cop.  Or maybe just In-Between Cop.

“POLICE OFFICER:  I mean, you got four guys in a house.  One guy ends up dead.  The other three, you know, are saying, ‘I didn’t do it and the other persons didn’t do it…'”

Also, we get a look at what may or may not have been videotaped by the MPD’s crack A/V Squad that night.   Yeah, you guessed it…after the jump.

Zaborsky defense counsel Tom Connolly goes on to explain at great length how his client’s rights were violated, especially the MPD’s repeated failure to read him his Mirandas throughout the course of the evening.   He was “released” at around 8:30am.

Ward’s motion reads the same way and offers a glimpse into his statements and mindset from the night their friend was slain.  Although longer, it reads similarly…and perhaps more befitting of a published author, drama points were added to the text:

“When Ward needed to use the restroom (at 1509 Swann) and get a glass of water he had to ask permission and was watched by the police.

“…Ward was placed in the back seat of a patrol car…  A protective metal screen separated the driver from the back of the patrol car, where Ward was made to sit.

“In fact, there were several instances where Ward was left alone in the locked interview room (at Police HQ) but needed to use the bathroom.  Ward had to pound on the door to gain the attention of an officer on the other side…”

Much of this may be determined by the transcript since we learn on page four that the initial part of Ward’s interrogation, five hours, was not videotaped.

From the transcript portions in the Ward motion, we read of Detective Wagner and Norris’ efforts to get their subject to open up:

SERGEANT WAGNER:  I’m very troubled, I have to be honest with you.  I don’t believe we’re getting the truth.

MR. WARD:  Everyone keeps telling me that.  I don’t know why.

SERGEANT WAGNER: Well, because some  one or more of you stabbed Mr. Wone…let me just say – because eventually it will come out.  It’s going to come out.  Either from you or Joe and Victor – one of them is going to tell.  If it isn’t you, then you’re going to go down.

...guarenteed by the Supreme Court...Later that morning at around 6:00am, while the rest of DC was stirring to start another work day, Ward is told he’s going to be taken to the FBI for a lie detector test:

DETECTIVE NORRIS: You’ll just go down there and you take the test and let’s just get it over with.  And if you clear it, you pass and–

MR. WARD:  Shouldn’t I have a lawyer here with me?  I don’t know–

DETECTIVE NORRIS: What do you need a lawyer for?

MR. WARD:  I don’t know how this works.

DETECTIVE NORRIS:  But you don’t need a lawyer.  I mean, if I didn’t do anything, what do I need a lawyer for?

MR. WARD: I don’t have anything to hide.

DETECTIVE NORRIS: Exactly, so what do you need a lawyer for?

MR. WARD:  Just because I’ve never had anything like this happen to me before and I’m scared because I don’t know how these things work.

After Ward’s lie detector test we learn of the then MPD Gay Liaison, Sergeant Brett Parson’s first appearance.   He met Ward at the FBI and took him back to the Anacostia Violent Crimes Branch, questioning Ward along the way.  According to the motion, Parson told Ward that Price and Zaborsky, “were talking.”  Ward was later “released” at 11:30am that morning.

What this seems to come down to is whether or not Zaborsky and Ward made custodial or non-custodial statements to police that night.  Both motions lean heavily on case law not just from Miranda but from United States v. AllenUnited States v. GaydenRhode Island v. Innis, Thompson v. Keohane, and Yarborough v. Alvarado.

In an ironic twist of sorts, also sited is United States v. Thomas Green, which also saw a motion to suppressJudge Lynn Leibovitz presided over that trial.

We’ll leave it to the law jocks to sort through the precedent for us and offer guidance.  First, comment and analysis from wmrw.com’s in-house counsel:

“Is it possible that the guys weren’t Mirandized and that it took this long for that to come out?  I’d think they would have been screaming this all over town long before now, rather than going through this lengthy pretiral process and then dropping the bombshell….   Or were they Mirandized before the tape went on and they are going to deny it so that it is the cops’ word vs. the tape?

(If the Defense is to be believed) It seems like Norris, the cop interrogating Dylan did screw this up royally and should have known better.  Waid also, though not quite as blantantly…   The fourth amendment claims are some of the purest BS I’ve ever seen — a dead body in someone’s house and there is no probably cause to take the occupants into custody?  Come on.

In the end, the interrogations didn’t provide anything useful, didn’t extract any confessions and there is plenty of physical evidence (and lack thereof) to establish a coverup. Is the content of the questioning really that crucial?

Plus, if it’s kept out, how is the intruder theory going to be introduced, other than through the 911 call which can easily picked apart.

Miranda is usually used to block use of confessions or other admissions that would tend to incriminate the defendant. These statements are offered for their truth (e.g. “Yes, I did it.”)

In this case, the prosecution is seeking to admit statements because they are false and misleading (e.g. “I heard Robert lock the door.”). The fact that they made statements that misled police is being used to incriminate them, not information contained in the statements.

If they were in custody, it was as suspects in a murder, not a cover up. They aren’t being charged with murder and the statements are not being used to show that they committed murder. Again, not sure if this makes a difference.

You could get a good law school exam question out of this situation.”

But for the lay case watcher, what questions do these motions raise?  I’ll start: why didn’t Bernie Grimm file a similar motion to suppress on behalf of his client, lawyer Joseph Price?  And more timely, will Judge Leibovitz rule on these motions at the March 12 status hearing?

> Update:  Price counsel Bernie Grimm did indeed file a Motion to Suppress on behalf of his client Joe Price.  It’s not yet available on the DC Superior Court database.  We will get the document and post as soon as it becomes available.

02/26/2010  Defendant Joseph Price’s Motion and Incorporated Memorandum to Suppress Involuntary, Custodial Statements

-posted by Craig

Zaborsky Motion to Suppress

 

Ward Motion to Suppress

32 comments for “Miranda Warning(s)

  1. Bill Shatner
    03/04/2010 at 1:42 PM

    Here a couple of thoughts are worth nothin but what the heck:

    who is familiar with Amanda Knox and how many people on this board think she was railroaded? Many in the US press, yet the evidence is pretty much on par with the Robert Wone matter. My point? Is it possible to be objective where emotions are involved?

    The defense motions raise big questions: did EMT make needle jabs in Mr. Wone? Can body fluids be released at death? Could there be just bizarre coincidences. Second, I don’t see the miranda issue as an issue; even if the statements are suppressed not much was said in the statements as reported from the WP.

    I think the case will only break when Ward realizes that being a gay white guy in a DC jail suspected of rape (whether convicted on that or not) will not be a pleasant time, and he better share the truth out of self preservation. But, if he’s a masochist, maybe he is looking forward to a stay in the pen.

    • CDinDC
      03/04/2010 at 2:37 PM

      Bill Shatner says: “The defense motions raise big questions: did EMT make needle jabs in Mr. Wone?”

      The EMTs have already indicated that they did not make these marks.

      Also: “Second, I don’t see the miranda issue as an issue; even if the statements are suppressed not much was said in the statements as reported from the WP.”

      You might be right Bill. It’s not like they confessed.

    • Eagle
      03/04/2010 at 3:29 PM

      It would be very very rare that attempts to enter the veins, even in an emergency, would entail entering via the feet, the arms and/or the neck. Not to mention all three of them at the same incident.
      I have never ever heard of it. I cant imagine it.
      Usually and almost always, multiple attempts are made thru the veins in the arms as most people have experienced.
      Surely with Robert’s age, he would have had easy access to his vascular system thru the arms and would not need multiple needle entries in many obscure and very very rarely used parts of the body.
      Beside that, when did he die? Plenty of people are declared dead in the ER because it is just a legal process needed after the person has passed on.

      • Craig
        03/04/2010 at 3:37 PM

        Eagle: In the original affidavit, the EMT’s “…observed Mr. Wone was dead and had been dead for some period of time.”

        CD: If you want to see a sloppy cut and paste job, tune it tomorrow for a looksee at the motions to sever.

        All: Thanks as always.

        • Eagle
          03/04/2010 at 7:14 PM

          Craig:Excuse my ignorance, but is there an official cause of death of Robert Wone and who declared it officially?
          Did the GW judgment support the judgment of the medical examiner?
          Thanks for wkrw’s great work in this quest for justice.

          • Craig
            03/04/2010 at 7:33 PM

            Eagle: Page 2 of the original affidavit says that Robert was officially pronounced dead @ 12:25am, 36 minutes after Zaborsky’s 911 call. That pronouncement I’m assuming was made by the GWU Hospital’s ER team.

            On the cover page of the soon-to-be-seen autopsy report, M.E. Lois Goslinoski’s ‘Final Diagnoses’ are:

            I: Stab wound of chest
            II: Stab wound of chest
            III: Stab wound of abdomen

            Cause of Death: Stab wounds of torso

            Manner of Death: Homicide.

      • AnnaZed
        03/04/2010 at 10:08 PM

        Well, in the quoted part from the Autopsy Report Dr. Goslinoski says:

        “Vascular access is established with a left subclavian central line and right femoral central line (both with large bore catheters).”

        and

        “Chest tubes are inserted along the anterolateral regions of the chest at the level of the 4th intercostals space on the right and at level of the 5th intercostals space on the left. Both chest tubes are clamped”

        So there are four places where EMTs or someone entered Robert’s veins, presumably in a protocol attempt to give aide even if they were sure he was dead.

        If the defense can make something out of that, they will. Never underestimate how dumb jurors can be. In a murder trial that might cause some sort of doubt for them.

        What interests me from the quoted text was Dr. Goslinoski’s observation that of the other puncture marks that she observed (neck, foot, chest) the ones at the central lower chest region were:

        “…consistent with pericardial centesis or a direct injection into the heart.”

        Don’t EMTs sometimes do this (I mean outside of Quentin Tarantino movies)?

        • Eagle
          03/06/2010 at 1:38 PM

          If the EMTs thought that Robert was “dead and had been dead for some time”, why would they possibly consider/ justify performing multiple unusually placed entries into Robert’s vascular system to “save” him? In my opinion, they could/would not.
          I never heard of EMT’s having this much authority or even skills to do multiple entries. Even one entry would be enough.
          This alleged scenario makes the EMTs look like they did not know what they were doing. Big time.
          We would have to see the protocols and skill levels expected of the DC EMT’s to be sure.
          EMT’s performing multiple rarely used entries on a man they think is quite dead just does not make professional sense or common sense.

        • Eagle
          03/06/2010 at 3:18 PM

          AZ: Per Mosby’s Medical Dictionary:
          “Centesis: a perforation or a puncture of a cavity, such as paracentesis, abdominocentesis or thoracocentesis”
          In this case it would be a perforation in the sac around the heart.
          My guess: Someone knew what they were doing or else were very lucky in hitting the area closely around the heart or injected into the heart.
          I do not know if EMT’s have the skills or authority to do a direct injection into the heart. There was a heart stimulant found in Robert’s blood.

          • CDinDC
            03/06/2010 at 4:38 PM

            Eagle,

            I encourage everyone to review the District of Columbia Fire amd Emergency Medical Services Protocols. They can be found here:

            http://fems.dc.gov/fems/cwp/view,a,3,q,582844,femsNav,%7C31511%7C.asp

            EMTs are strictly bound by these protocols. Only certain medications and certain medical procedures are allowed to be performed by them.

            This online manual will give you a clear picture of exactly what an EMT does in various medical emergencies.

            However, Robert was deceased when the EMTs arrived. The EMTs indicated that he had been dead for some time. Heroic medical procedures would not have been performed on a dead man.

            • Eagle
              03/06/2010 at 6:02 PM

              Thanks CDinDC. That DC protocol is very specific. So who did put the needle marks in the body?
              Not an EMT who wants to keep his job very long-and is being observed by the emergency team.
              Likewise the staff in the GW emergency room. I assume they also observe professional protocols.
              So who?

              • AnnaZed
                03/06/2010 at 6:19 PM

                Well exactly, I have been giving this more than a little thought so that’s why I asked that question upthread. Google being the only tool that I have to deploy I will say that I did find references to EMTs performing this procedure. So, for now I am on the fence about what this injection site might mean.

                To me if it is not a byproduct of some sort of extreme medical intervention this needle to the heart business gives Robert’s murder a whole new complexion. It is one thing to contemplate an enraged, insulted or inebriated act of murder (the stabbing). I feel that maybe I have been to charitable to this miscreant (or miscreants) all along, too willing to believe in a bad but not-as-bad scenario that somehow escalated into something worse, then worse again, then to murder.

                It is another thing all together to contemplate a murderer prepared in advance with a hypodermic needle loaded with a fatal dose of something (what?) and motivated enough to plunge that needle into Robert’s heart. That’s premeditation on a whole other scale. What was that? What happened? Why?

  2. CDinDC
    03/04/2010 at 1:52 PM

    I noticed that the Motion says “Robert…..planned to visit with the radio station’s night crew and ASKED [emphasis added] to spend the night at Price and Zaborsky’s home…”

    Is this a subtle way of side stepping any premeditation on anyone’s part? A subtle way of placing blame on the victim?

    Robert and Joe pre-arranged this event together.

  3. CDinDC
    03/04/2010 at 2:20 PM

    From wikipedia:

    “A Miranda warning to criminal suspects in police custody, or in a custodial situation, before they are interrogated. A custodial situation is one in which the suspect is subjected either to formal arrest or its functional equivalent.”

    The defendants were not under arrest. Did they at any time REQUEST to leave? Re Dylan’s inability to exit the interrogation room, police stations are highly secure buildings. People, whether uncharged civilians or not, are not allowed to roam freely through the halls. ard wasn’t an employee of the police department, he didn’t have any authority to have the code to let himself out. And it seems to me, if he didn’t ask to leave, then police didn’t violate his rights.

    “In some jurisdictions, a detention differs at law from an arrest, and police are not required to give the Miranda warning until the person is arrested for a crime. In those situations, a person’s statements made to police are generally admissible even though the person was not advised of their rights.

    Is Washington DC one of those jurisdictions? Washington DC is a federal territory. Perhaps they have different protocol that does not require them to mirandize in a situation such as the defendants.

  4. Bea
    03/04/2010 at 3:08 PM

    Pretty interesting read – though I’d love to read all the transcripts. I’m really eager to see the Price suppression motion – the lawyer claiming he didn’t get Miranda read to him. If you read the original Charging Affidavit, the cop mentions that during a break in the Price interviews, Price is on his cell phone with Michael AND says that he’s talked to “Dylan’s lawyer who is trying to get hold of him” and says something to the effect that he doubts Dylan knows what his rights are (suggesting STRONGLY that Price certainly does).

    Does it appear to anyone else that Ward failed his polygraph since the defense has made mention that the prosecution needs to put them on notice if they attempt to introduce? Not that it’s admissible, but sure goes to being interested in keeping Dylan around for more questioning.

    One note. It may seem to many that this was quite an ordeal but really it’s pretty standard to keep people around to keep them talking. I don’t know if they were actually Mirandized (Joe doesn’t say that they weren’t, only that Dylan might not understand what his rights are) but it would be nice if they were. IF cops take the stand to say they were, the defendants would have to TAKE THE STAND to deny it. Hello – they are not taking the stand (except possibly Price, which would be a prosecution dream). All the “your pals ARE talking” stuff is really typical, along with the making the defendants wait forever and to prevent free movement (as if they could have let the boys go dress themselves and happen to flush evidence in the process).

    • CDinDC
      03/04/2010 at 3:20 PM

      Bea,

      Do you think Dylan’s and Victor’s motions to suppress were written by the same person? There seem to be a number similarities in wording. I find this odd being that they all have different attorneys.

      Could this be an indication that Joe has his hands in it? Or is it typical for attorneys to boilerplate their motions for multiple defendants even if they are coming from different law offices?

      • Bea
        03/04/2010 at 3:48 PM

        The three defendants and three (sets of) attorneys clearly are giving each other access to each other’s documents with the understanding that common portions may be used.

        Interesting to me is that in terms of “Severance” (which Craig indicates will be posted) that Victor is the most likely candidate in terms of there being no evidence to link him to the BDSM equipment (found in Dylan’s closet, used on Joe in pictures). But in terms of interrogation/Miranda, it would seem that Dylan was kept longer, took for a polygraph, and had at least discussed whether he should have an attorney (even IF given Miranda, the cops have to stop when a defendant asks for an attorney – were a couple of incidents where the trigger could have occurred).

        In looking back at the Charging Affidavit, it would appear that Joe was allowed to make calls, leave at will. Clearly the cops were leaning on Dylan as having behaved with the most-likely culpability. There is some strange reference that implies (at least out of context) that “Vic” is of less concern? Or that he might talk? Hard to get a read when the excerpt is not in context.

        • Clio
          03/04/2010 at 11:17 PM

          Well, now we can see why both Vic and Dyl missed out on breakfast at Cosi’s. I wonder if Vic was late for work that day; Dyl’s schedule that morning was more fluid, of course.

          It is revealing that Joe in these documents is the one who urges all of them to put on their clothes to see Robert in the hospital. Underwear guy as stand-up guy: this narrative has to have been written in Aunt Marcia’s basement late at night.

          • Clio
            03/06/2010 at 4:55 PM

            Drinking that water right before bed must have been a bad idea for Mr. Ward, who had to go relatively frequently throughout the night. Pounding on that door for bathroom access: no thoughts of water sports, just then?

  5. DCTim
    03/04/2010 at 5:01 PM

    I’m not sure I understand why any of this is relevant in a conspiracy/obstruction of justice trial. Regardless of what they may or may not have said that night, or whether they were read their rights, it sure seems pretty obvious that someone in that house cleaned up and staged the scene before the police arrived. Isn’t that all that this is about, for now?

    • Bea
      03/04/2010 at 5:03 PM

      Seems right to me, DCTim. They were questioned about his murder and not charged with his murder. All the stuff they said ended up being related to obstructing – they’d already tampered and conspired.

      • David
        03/04/2010 at 5:26 PM

        But if their statementat are related to obstruction, then it is vital to the obstruction charge, are they not?

        • CDinDC
          03/04/2010 at 5:35 PM

          And could any of their statements be used for a later-charged crime (i.e., at a murder trial)? Say a certain brother is charged….how could what they said that night be used? as it wouldn’t be used against them. It would be used against Michael perhaps.

        • Bea
          03/04/2010 at 5:58 PM

          As your in-house counsel says, we wouldn’t be trying to use statements from interrogation to prove “admissions” to murder. It didn’t happen – and from the looks of it, they didn’t tell the truth about cleaning up the crime scene, moving the knife, or any of the rest. What they did was tell the cops things which are akin to saying (far more indirectly) “the murderer was wearing a Madonna t-shirt and ran toward Connecticut” – obstructing justice.

          • CDinDC
            03/04/2010 at 6:44 PM

            I wonder if Michael has ever been questioned.

    • AnnaZed
      03/04/2010 at 7:49 PM

      Everything they said or didn’t say would be central to the obstruction charges from Ma’am’s first Marilyn-like breathy whispers to Joe’s bombastic overheard telephone conversations ~ all of it (or I think so anyway).

  6. Penelope
    03/04/2010 at 6:08 PM

    I took a look at the superseding affidavit. The conspiracy charge lists 17 “overt acts of conspiracy.” Numbers 13 – 16 relate to defendants’ statements to police on August 3. I think the conspiracy charges stand without defendants’ statements to police.

    I think it may be possible to split the defendants’ statements to police into several parts: statements made at the house, statements made during the car ride, and statements made at the police statement.

    In my non-lawyer eyes, the police seemed to treat the defendants like witnesses at the house. However, Zaborsky’s motion says he was in a “police-dominated, custodial atmosphere” from the time the police arrived at the scene. Crime scenes by nature are “police-dominated,” no? And it’s gotta be pretty standard procedure to protect the crime scene. Having the trouple sit in the living room and accompanying them individually upstairs seem perfectly reasonable to me. (Heck, if they were suspects, wouldn’t the police just pick out clothes for them?) That just leaves telling the trouple that they couldn’t go to the hospital where Robert was taken. That’s harder to argue with. Is it relevant that even if Robert were alive at the hospital, non-family members would not have been allowed to see him? I’m not a lawyer, so I don’t know.

    The Zaborsky motion cites US v Mittel-Carey to support the assertion that the circumstances at the house constituted custody. Here’s a link:
    http://vlex.com/vid/us-v-mittel-carey-28894542
    There are a couple significant differences in fact between this case and Wone’s murder. First, the police entered the house after obtaining a search warrant. Second, the charges were sending child pornography over the internet. To me, that suggests a more limited crime scene and a lower safety risk to the occupants of the house. Third, the suspect saw a policeman’s unholstered gun when the police entered his room. Fourth, the suspect and his girlfriend were separated during questioning. Fifth, the suspect was interrogated for two hours in his home.

    If statements made at the house are admissible, I’d bet that the prosecution has plenty of material to work with. From the police notes, Joe was quite a chatterbox at the house (and on the way to the station). Victor and Dylan? I’m not sure; we know Victor was crying, and we know Dylan was unresponsive to the EMTs.

    I’m interested to see what the resident legal jocks make of this.

    • David
      03/05/2010 at 10:29 AM

      Penelope,

      And also don’t forget Victor’s 911 call itself, which is not only on tape, but also has been enhanced, hopefully picking up the background conversation that was occuring.

      david

      • CDinDC
        03/05/2010 at 11:47 AM

        oOOo goody….can’t wait to hear that. (unfortunately, probably only in court?)

  7. CCBiggs
    03/04/2010 at 6:52 PM

    Who cares if the defendants’ statements to police are excluded? Their statements were self serving and insignificant. If they are excluded from evidence due to the Miranda issue, so what?

  8. Clio
    03/04/2010 at 10:58 PM

    This appears to be yet another cynical and inverted use of civil rights law to deny Robert’s family any justice. Miranda was designed to inform uneducated, unaware youth about the limits of police power; it was not designed to empower overeducated, calculating cads to get out of jail free on a technicality. I think that Judge Lynn’s no-nonsense view of the privileged abusing their privileges will come into play here. Bernie, you’ve got to do better than this!

  9. Clio
    03/06/2010 at 4:01 PM

    Do notes from Brett’s ride with Dyl exist? Did Dyl ask Brett where he worked out? Did Dyl brag about his parents, Sarah, or his real estate purchases?

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