Sever(al) Motions

Someone’s Clearly Not On The Same Page

Whatever else can be said, this week’s motions have clarified one question…and raised multiple new ones.

First, the question answered: how would the defense counter the prosecution’s filing of “Uncharged Conduct 1”?

The government’s blueprint was assertive and the case brought by AUSA Glenn Kirschner and his deputy Patrick Martin was broad and bold.  The defense’s response?

Tepid.  Where-ever one may come down in this case, it seems apparent the prosecution is, for the moment, on the move… painting its theory in crimson brush strokes.   In contrast, their opponents at present appear in a crouched position, simultaneously defensive but also intent on setting several small legal brush fires.

Whether substantive or merely distracting, it’s hard to know what secrets lie behind these motions.  And brush fires can die out or ignite a conflagration, depending on conditions.

But we have new questions, and possibly new fuel to be added to the fire.

Of the three Motions for Severance (which follow after the jump), two are remarkably similar.  Only if by similar you mean nearly identical – they being the motions for Joseph Price and Dylan Ward.   How similar is similar?  How about word for word?

To be fair there are a few differences.  For example, paragraph #4 of the Ward motion adds the end sentence:

“Certain portions of each defendant’s statement are videotaped.”

A helpful, if grammatically challenged, reminder that certain portions of Ward’s interrogation were not taped.  Again, nice work MPD A/V Club.

But similarities – down to duplicated paragraph after paragraph – are the rule here.  So much so that Section A is listed as “Introduction of His Co-Defendants’ Statements violates Mr. Price’s Sixth Amendment Confrontation Clause Rights” – in both motions.  Whoops.

Unsurprisingly, the arguments for severance are the same and go something like this.   The Sixth Amendment grants the accused, among other things, the right to confront and cross-examine testimonial evidence brought against them.   Prosecutors can’t just bring hearsay and leave it at that.

But because part of the government’s case involves statements made by the three that – the government says – demonstrate intent to mislead and confuse, and thus demonstrate guilt of the charges brought, no one of the three will be able to contest statements made by the other two.  Hence, a violation of each of their Sixth Amendment rights under the confrontation clause and then need to Sever.  Or something.

(Granted, legal eagles will find much more meat, and will likely point out the many errors and oversights in reasoning here.  Do be kind.)

All three defendants  made much of not being mirandized.  But only in Zaborsky’s motion does this appear – twice:

“The MPD also subjected Zaborsky himself to interrogation the night of Wone’s death without advising him of his Miranda rights and in defiance of his request for counsel.” (emphasis ours)

Defiance?  Not the good cop/bad cop head games we saw played with Ward, but outright refusal to provide counsel on request?  Shocking if true…we would have hoped even the MPD would know enough to put down the rubber hose at this point.

If severance were granted, a new issue pops up – would the separate defendants be able to call each other to the stand?  Perhaps, but this seems complicated by Victor and Joe’s domestic partnership.  It’s our understanding that a spouse cannot be compelled to testify against their partner.  As for Dylan…but this is all speculation.

What’s not speculative is the vastly different filing brought by Victor.  The break with the other two begins at paragraph #5:

“The government seized a variety of items from the Swann Street residence, including, inter alia, a variety of items used by individuals engaged in bondage and domination (“B&D”) practices.”

B&D?  Is that supposed to sound better than S&M?  Continuing…

“The government has indicated its intent to introduce and rely upon the B&D evidence.  Neither the government nor any of the Defendants has asserted that Zaborsky engaged in B&D practices or had any connection to the B&D evidence recovered in the case.”

The motion employs some similar arguments and case law, but is clearly a different construction, based as much around the right to confront as it is the importance to Victor of not being linked the wealth of evidence of Joe and Dylan’s sexual activities on Swann.  Reading all three motions, it’s possible to question if Victor’s motion came first…and Joe and Dylan’s motions were the rapid response.

And one begins to wonder if something deeper than just different legal arguments is stirring here.  Consider: all three moving to be tried separately. Increasing attention to Michael’s activities the night of the murder.  More space emerging between Victor and Joe’s legal strategies.  Victor and Joe arriving at the courthouse at different times,with Joe departing in one direction and Victor and Dylan in another.

And just where was Aunt Marcia at January’s status hearing?

On Monday, something we’ve been working on for a while.  An update on the Trouple.

posted by Doug

Price Motion to Sever

Ward Motion to Sever

Zaborsky Motion to Sever

48 comments for “Sever(al) Motions

  1. former crackho
    03/05/2010 at 9:38 AM

    If any of the trouple were to get married to each other in the district, would that save them from testifying against the other?

    • David
      03/05/2010 at 10:22 AM

      Fch,

      Joe and Victor are already domestic partners in the District of Columbia, and under that provision they are not required to testify against each in a court of law in DC. The new marriage law would also grant the same benefit, but Joe and Victor are already covered. However, though, since they do not claim a DC residence as their home any longer, since they claim Aunt Marcia’s McLean home as their residence, I wonder if they would still be able to claim the DC domestic partnership benefits. On that point, I am not clear.

      David

      • former crackho
        03/05/2010 at 10:42 AM

        I wasn’t sure if DP’s would still be recognized now that marriage was legal. And I wonder how one would have to dissolve a DC domestic partnership if he wanted to marry someone else. I guess there are legal papers involved.

        In any event, I also can’t help but wonder if Victor has tried to pull away after discovering that he wasn’t only protecting Joe, but maybe brother Michael as well. Maybe Victor didn’t know of Michael’s involvement until later? I wonder how close Victor and Michael are?

        Just crazy thoughts on a Friday.

  2. Hoya Loya
    03/05/2010 at 10:39 AM

    Since we are talking obstruction and tampering, rather than murder, I think its hard for Victor to disassociate himself from the toys. Is he claiming he had no idea they were in the house and could have been used by his housemates?

    He should also think hard about what severance does for him, with or without evidence of the equipment, since the 911 tape, in his voice, is one of the most compelling pieces of evidence to demonstrate the cover-up.

    • former crackho
      03/05/2010 at 10:45 AM

      Very, very true. I can’t wait to see the results of any forensic vocal analysis the prosecution may have done on the 911 tape, not just for clarification of the parts that are not clear, but for the overall analysis of whether his hysteria is authentic.

  3. AnnaZed
    03/05/2010 at 11:57 AM

    Wow, that is some lazy ass legal filing (cut and pasting). I can’t imagine that anyone but Joe thinks anything could possibly come from this and I seriously doubt that Judge Leibowitz will be impressed by it. If Connolly thought that Victor had a chance of being granted severance without giving anything to the prosecution then I think he would have put forth more effort than that. Very thin, and I would say these filings are nothing but expected murmurings that the judge will quickly brush aside as we move on.

  4. Bea
    03/05/2010 at 12:18 PM

    The Motion for Severance filed on Victor’s behalf is the only one with ANY teeth whatsoever, making it appear that once Connolly decided to do so, the others said “okay, then we will too!” (but had no grounds). Or was it a way of saying ‘we’re ok with that’?

    If there are any DC criminal jocks here, could there be GOOD in cutting Victor loose? As in then making him available to be subpoenaed to testify in Dylan and Joe’s trial? And vice versa? There is the Domestic Partnership testimonial privilege but it is limited to what was said in the confines of the marital arrangement not heard by a third party (i.e. if Dylan were present, no privilege).

    • CDinDC
      03/05/2010 at 12:25 PM

      But how can any of this serve any purpose as long as they all continue to live together?

      There is no hope of Victor incriminating Joe (and possibly Dylan) under these circumstances.

      So, sever away….it means nothing. They will continue to conspire and protect each other as long as they live under the same roof.

      • TT
        03/05/2010 at 1:18 PM

        I agree CD but does anyone know if they are still living under the same roof? This was brought up not to long ago in another post.

        • CDinDC
          03/05/2010 at 1:33 PM

          I sure wish I knew! Maybe the eds will have something about their living situation in that update they are promising!

          • Clio
            03/05/2010 at 9:48 PM

            Are Price and Zaborsky still domestic partners? For some reason, I doubt it; their reduced economic circumstances, combined with the shame and stress stemming from this case, have killed their marriage. Why should Ma’am stay with Joe now? Their kids are Kim’s; their Dylan is almost 40. If Joe and Vicki have separated and now want separate trials, could (and should) they testify against each other? Of course!

            • Bea
              03/05/2010 at 9:58 PM

              Hey Clio, I think they’ll be sticking it out if only to maintain the marital privilege. Besides, what more could Joe do to force Victor’s hand? Clearly Victor is a doormat, and Joe likely needs the stability he provides (no stability coming from WayWard). And Joe needs to keep Victor happy enough that he doesn’t talk. Probably hasn’t treated Victor this well in YEARS.

              I’d love it if Victor dumped Joe because then he’d just talk – why not? Cut himself a deal and tell the truth. Presumably Aunt Marcia would pick him to stay if there’s a break-up. As for the kids, I’d hoped that Kim would have shown them both the door but she’d been seen supporting them at hearings – guess she drank the Kool-Aid. It’s yet another reason to loathe these men – to add CHILD OF CRIMINAL to the bios of these young boys.

            • Carolina
              03/07/2010 at 12:54 AM

              No one is less impressed with the Terrible Two Plus One than I, and I’m in agreement about Victor’s position as long suffering partner/doormat.

              That said, I find referring to any man, gay or straight and henpecked, in the feminine to be offensive and simultaneously homophobic and misogynistic. I’m pretty sure that’s not your intent, but it does seem to be an ongoing theme.

              • AnnaZed
                03/07/2010 at 1:01 AM

                The reference to Victor as “Ma’am” comes from listening to the 911 tape from the night Robert was murdered. The dispatcher mistook Victor for a woman and called him Ma’am throughout the call; then it sort of stuck.

                • Clio
                  03/07/2010 at 11:51 AM

                  Gender is fluid and not fixed; Victor may be biologically male, but his personality does seem to match the cultural characteristics traditionally associated with women. So, referring to him (or even the moody and saturnine Dyl) in the feminine is actually accurate and is not meant to offend.

                  Indeed, as a lady, I do not see being feminine as a vice, rather I see it as a virtue. When the dispatcher called Victor Ma’am on the 911 call, she was paying him an unintended compliment, one, of course, as a co-conspirator, he may not have deserved.

  5. Penelope
    03/05/2010 at 4:39 PM

    Sloppy, sloppy, sloppy! For a very reasonable hourly rate (or perhaps some juicy tidbits?), I can instruct Mr. Price or the defense team in the mysterious ways of utilizing the “find and replace” feature in Microsoft Word and the long-forgotten art of proofreading.

  6. Penelope
    03/05/2010 at 5:07 PM

    If each defendant is given a separate jury, the defendants could theoretically testify against each other. For example, Price’s jury could be sent out while Price testifies against Zaborsky and/or Ward, if Price exercises his 5th amendment rights. That would seem to present myriad legal complications – e.g. could information gleaned in Price’s testimony be used in other parts of the trial, like questioning other defendants, closing statements, etc? And could information gleaned from Price’s testimony be used in future investigations on other charges against Price? Not to mention, if all three are witnesses, the other two would have to be sent out during the third’s testimony, right? (Not that they haven’t had ample opportunity already to coordinate stories…) Does the 6th amendment right to cross-examine establish the defendant’s right to be present during cross-examination? The mind boggles…

    Bea, you mentioned California is fond of the separate juries approach. How far do they go with it? Is there precedent from similar cases?

    • Bea
      03/05/2010 at 6:49 PM

      Hi Penelope –
      You might recall that the Menendez brothers (who shot/killed their parents as high school/college kids) were prosecuted in the same trial with two separate juries. I have no idea if this is done in DC.

      The question which nags me is whether the prosecution would be served to ‘sever’ one, presumably Victor, in order to gain access to testimony during trial. Sure would seem to open up immunity/testifying communications as well.

      Wish I could answer you with more specifics.

      • Penelope
        03/06/2010 at 4:15 AM

        Thanks Bea!

        A quick google of “separate juries” found recent-ish uses in New York, Ohio, and Florida. However, it seemed that the separate juries were almost always requested by the defense.

        As far as the case against Victor goes, I suspect that the prosecution is better off not severing. I think a key part of their case against Victor is the assertion that he knowingly gave false information to the 911 operator. The factual counterarguments are either 1) that he told 911 the truth, or 2) that he told 911 what someone else told him to be true. If none of the defendants testify, how can Victor convincingly demonstrate either 1 or 2?

  7. Clio
    03/06/2010 at 12:18 AM

    Despite the “tortures” that Dyl had to endure –having an uniformed officer (probably male) escort him to the restroom, the spare decor of the interrogation room, the secret password, and having to deal with Brett so early in the morn, he still stuck to Joe’s story and was released. Did he then lunch at the Mayflower before doing one or two specialty outcalls? Or, did he immediately go home to crash after pulling an all-nighter?

    • Craig
      03/06/2010 at 1:29 AM

      Clio – The threesome all ended up going to Oakton to pay a ‘condolence call’ to Kathy Wone.

      We were told here once that Price managed to make it into the A-Fox office that day as well. It amounted to a ‘pity party’ for the ordeal he had gone through the night before.

      • AnnaZed
        03/06/2010 at 1:31 AM

        Wow, the mind reels. I would be very interested to know exactly what version (with details) of the elves story they told Mrs. Wone. The nerve required to do such a brazen thing is simply outside of my realm of understanding.

        • Clio
          03/06/2010 at 3:55 PM

          And, of course, I bet that they didn’t complain to Kathy on that day about the escorted restroom visits, the chain in the interrogation room, the secret password, etc. If they had, then that would have made them look like suspects rather than witnesses.

  8. Themis
    03/06/2010 at 12:46 PM

    I can’t see the posted comments but any statement mad during and in furtherance of a conspiracy is admssible against all cocnspirators. The government will ride that hard. He defenants will cite cases saying the cover up of a conspiracy is not part of the conspiracy. But the is a conspiracy to obstruct jstce by msleading the police. My bet would be admissible on the statements. As for zaborsky and the 404b bad acts D/s stuff, the judge will prbably just give a curatve instruction.

    • Bea
      03/06/2010 at 9:36 PM

      Thanks, Themis. So you don’t think the prosecution would be served by severing one to force the hand on testimony? Maybe they couldn’t even be called against the other(s) – I know they could take the 5th but there’s value in that for the prosecution. I know you have a defense history and perspective, but I’m curious – and wouldn’t that toss a wrench in the defense’s strategy?

      • Themis
        03/06/2010 at 10:09 PM

        Severance cannot force someone to testify, and most courts won’t force a witness to invoke in front of a jury. So no tactical advantage for the goby to agree to severance — unless there us a back room agreement. That we wouldn’t know until showtime.

        And I am reduced to the iPhone. Hence the missing characters. The price of being a public defender.

        As for mr. none of you know shit, some of us have done this type of work for years. Regardless, jurors are lay people. Capiche?

        • Bea
          03/06/2010 at 11:56 PM

          Thanks for answering the question – knew there was one just couldn’t get anyone to chime in. If you ever have an IP question, let me know!

          If I’m reading this correctly, no way do they get the severance. But what was your take on whether the mountain of BDSM evidence will come in? Maybe not every last item, mind you, but I think the “big” items do come in. Would love to hear your balanced view.

          • Themis
            03/07/2010 at 9:11 AM

            If DC follows the general federal rule, the government will get to introduce its prize “BDSM” toys because 404(b) is considered a rule of inclusion and not exclusion. Thus, “prior bad acts” are admissible if they are relevant to something other than “bad character” or “propensity” (such as motive, knowledge, intent, lack of mistake) and their admissions would not be substantially more prejudicial than probative. If the “prior bad acts” evidence is necessary to explain the narrative of the crime, it often comes in as res gestae without getting to Rule 404(b). Personally, I don’t like the way 404(b) works, but the law doesn’t change to accommodate my preferences very often.

            That being said, any evidence, inculpatory or exculpatory, tendered by the government or the defense, can be excluded as cumulative or harassing. That’s why I don’t think it all comes in before the jury. But, hey, the government still managed to get it all before the listening public.

            Personally, if I was one of the defense lawyers, I would have moved the court to order the government to file its 404(b) evidence under seal. The few times I have made such a requests, all high profile cases, the court has granted the relief sought. But I don’t practice in DC, and maybe the three are going to try to delevop some hail mary “we’re being persecuted for our lifestyle” defense.

            Don’t see that working for them myself, even though the investigation arguably had a few not so nice moments. But I’m just a loser public defender salivating over the big law white collar defense gig.

            • Clio
              03/07/2010 at 3:19 PM

              So, by Themis’s analysis, even the Joyrider may be let in! I am starting to blush already for Sergeant Plante, the MP Department’s expert on the use of these implements, who may have to testify in open court as to their use.

              • Nelly
                03/07/2010 at 3:48 PM

                It would be more expedient to have Joe and Dylan rush up to the front of the courtroom to demonstrate themselves. Would James Plant want to touch those exhibits-toys?

                • Craig
                  03/07/2010 at 4:17 PM

                  Nelly: Sgt. Plante is described as an expert, but a close reading of the list of toys in the Govt’s doc shows a home-made device that even he was unable to identify.

            • Bea
              03/07/2010 at 3:44 PM

              Thanks much, Themis. I know your vantage point, and it is reassuring that the ‘mainstays’ of the BDSM comes in – for me the probative far outweighed but your insight is the splitting of legal hairs I needed. I would imagine that there’s no need for the litany (risking the jury’s becoming bored and even acclimated in addition to a simple argument of “going overboard) as not even I see the probative nature of “urine drinking devices”. Electrostim, torture, restraint – we can leave the purely personal preferences in the exhibit box.

              I doubt they’ve so focused on the Hail Mary PERSECUTION yet that that would weigh heavily in the decision to NOT file under seal at this point. Interesting point – and I don’t have a clue about processes in DC.

              Much appreciated.

  9. Craig
    03/06/2010 at 2:17 PM

    Thanks Themis. Your keyboard might have lost a few more letters since we last heard from you. 🙂 HUGS!

    We expect more motions in the coming weeks and maybe one or two ahead of the March 12 status hearing.

    There was a Defense joint motion that hit and the thrust is complaints about the Govt’s request to extend their 16(a)(1)(e) deadline. There may be some revealing elements in that.

    We also hope to get a look at Price’s severance motion next week so we can compare/contrast it to those of his co-defendants.

    Oh, and this Monday’s post… fasten your seatbelts.

    • Doug
      03/07/2010 at 11:17 AM

      Small correction: we’re waiting for Price’s Motion to Suppress, not Severance. We’ve already seen that one.
      Doug, co-editor

  10. Clio
    03/06/2010 at 2:56 PM

    Given the promised “bumpy ride” from Monday’s post, I haven’t been so excited since Addison De Witt confronted and exposed Eve Harrington in the 1950 classic All About Eve:

    “De Witt: San Francisco has no Shubert Theater. You’ve never been to San Francisco! That was a stupid lie, easy to expose, not worthy of you.
    Eve: I had to get in to meet Margo! I had to say something, be somebody, make her like me!”

    • Tallulah
      03/07/2010 at 3:38 AM

      So many life lessons in that movie. Love the reference.

  11. you are clowns
    03/06/2010 at 2:59 PM

    You guys crack me up. You are all pseudo-journalists, not crack, high-stakes lawyers, so why not tone it down on the strategy evaluation. It’s like listening to John Madden call the World Cup…

    • John Grisham
      03/06/2010 at 9:44 PM

      rsrsrsrs!

    • She did it
      03/07/2010 at 9:32 AM

      you are clowns (“YAC”),

      i laugh my ass off every time one of dylan ward’s apologists shows up here and tries to change the subject. god forbid that anyone hold dylan accountable for the actions and inactions of her “life”. YAC, do you have the intellectual honesty to take a critical look at the failures of dylan over the years? do you have the integrity to question dylan with the evidence; and the integrity to question his lifestyle decisions (spreading his legs for married men, recreational drug use (x), sporadic employment, chosing to hide behind the shield of the blues). YAC, will you stick around and deal with the tough questions or will you, like so many others before you (kimberlee, lance, etc) run for the hills and refuse to deal with hard questions like accountability/responsibility/evidence? do you dare respond?

  12. Clio
    03/06/2010 at 3:24 PM

    So, why are you listening? BTW, dear, YAC, “that move went out with Mrs. Fiske.”

    • CDinDC
      03/06/2010 at 4:23 PM

      What would “high stakes” have to do with a conspiracy (to conceal a murder) trial? (And that is retorical.) No high stakes here. No money. No big corps. LOL

    • you are clowns
      03/06/2010 at 4:59 PM

      oh, clio, thanks for pointing that out. As the official S.M. of the Wannabee St. Quartet, I should have expected you to say something so witty.Good thing the circle jerk has cheerleaders like you.

      • CDinDC
        03/06/2010 at 5:10 PM

        My daffodils are blooming.

      • Craig
        03/06/2010 at 8:28 PM

        YAC: You sound like a lawyer.

        What do you have for us?

        • Bea
          03/06/2010 at 9:39 PM

          Agree, Craig. YAC, what about the legal strategies offered? I’m a lawyer, Themis and Hoya Loya are lawyers, as are a number of others (and some play lawyers on TV) so what’s with the jab-and-run? Give us your take on the filings.

      • Clio
        03/07/2010 at 11:22 AM

        As a proper lady, I do not understand your reference to a circle jerk, of course, but thanks, YAC (or is it Spag?), for appreciating the lines of Addison De Witt. Somehow, I knew that you would. XO, Clio.

        • Doug
          03/07/2010 at 5:30 PM

          Zing!\
          -Doug, co-editor

  13. Hoya Loya
    03/07/2010 at 11:48 AM

    A big welcome back to Themis — your knowledge and perspective are much needed here.

    I don’t think we can expect anyone close to the trouple to offer insight into confidential defense strategy, but it is remarkable that we so seldom hear anything from trouple friends or colleagues to offer supportive insight or engage in constructive dialogue. We only get pot-shots, sophistry or a quick “I’m so shocked Joe could be involved in this” with nothing to follow.

    Just as an example, it would be interesting to hear a case made as to why at least one of the three legitimately deserves a separate trial, beyond pure self-interest.

Comments are closed.