To Compel or Not to Compel

Defendants Motion to Compel Discovery; Gov’t Replies: “Talk to the Hand”

It must be getting closer to May.  Hardly a day passes without another shower of paper in the Robert Wone Case.

On Monday things got off to a big, fat 172-page start with the defense’s motion to compel outstanding discovery.   If it seems like we’ve been here before, that’s because we have.

True to past form, the defendant’s main complaint is again that the government has not complied with court orders to produce discoverable material to the defense.  Their concerns are many.

To start, they are concerned about that hair and fiber analysis done by the government’s expert Douglas Deedrick, and that they don’t have his methodology so as to be able to challenge it.

On the finger print issue, they claim that an unidentified palm print was found in the room where Robert’s body was discovered by the defendants.  They want to know where it was found in the room, and testing that was done on it.  They have requested this information on numerous occasions.  It gets interesting here because the defense is claiming the government said it did not belong to the defendants or Robert Wone.  However, the government says in its own filing that defendant Victor Zaborsky can not be ruled out.

More compelling reading, after the jump.

The defense also wants to know the status of the remainder of the biological samples such as heart blood, urine, bile, vitreous, liver, brain and gastric samples.

They’re particularly harsh on the government’s treatment of the radio runs, and they claim that prosecution reluctance on this particular item is “contrary’ to the established practice of the United States Attorney’s office.  The radio runs include communications of the EMT’s who transported Robert’s body to George Washington hospital.  They are important to the case because if it is disclosed that Robert was subjected to life saving interventions then this could offer a medical explanation for the puncture wounds.

We also learn that the defense has not seen the unredacted portion of notes from one of the police officer’s on scene.  The officer in question appears to be Diane Durham, who surprisingly heard a different story from Joe about where Robert’s body was found.

Most interestingly, we learn that in 2007 Detectives Bryan Waid and Danny Whalen went to the Swann Street residence and talked to Dylan Ward without counsel present.  The defense is demanding any notes from that discussion be turned over.

On Tuesday, the government shot back with an 85 page filing articulating why they are opposed to turning over further discovery, chiefly of which is that they have met all their obligations pursuant to Rule 16 (a) (1) (E).

Then they filed an additional discovery document, maybe because they didn’t want to get on the bad side of Judge Lynn Liebowitz at Friday’s status hearing.

It filled out many of the questions that defendants were requesting about expert witness disclosures.  They intend to have Dr. John Yosaitis testify about succinyolcholine and IM injections.  Even though nothing has been found yet, it looks like the government is pushing forward on the paralytic drug angle through expert testimony.

Another interesting tidbit is James Plant, the government’s S&M expert.  While not exactly possessing a C.V. in bondage, we learn that Plant has led many S&M groups, has extensive experience with S&M practices and has attended many popular S&M events such as DC’s Mid-Atlantic Leather weekend.

They also disclose that they intend to introduce photographs of “certain defendants” using the S&M apparatus to show their familiarity with the tools of the trade.  Not just one or two photos, but upward of 23.  No wonder they need Mr. Plant’s services.

Let’s hope nobody’s hair was messed up when these photos were taken.  We wouldn’t want anyone to get a bad impression.

-posted by David

Here is the link to the Scribd document:

24 comments for “To Compel or Not to Compel

  1. Carolina
    03/10/2010 at 7:22 PM

    I am very curious about the plan to admit the photographs. Lawyers in the house, how are they going to make these relevant to the case? If I understand correctly, they could have photos of Joe et al restraining another Asian with knives poised, but unless it could be specifically tied to this case, it wouldn’t be admissible. Is that correct, or no?

    • CDinDC
      03/10/2010 at 7:46 PM

      Wow, Carolina, that’s interesting info! Where did you come across that?

      • Carolina
        03/10/2010 at 8:02 PM

        I think you misinterpreted what I was saying. I’m not saying the *do* have any such photos, but my understanding is, in order to admit something as evidence, it must have direct bearing on this case.

        For instance, my understanding is that a man may be charged and acquitted of rape multiple times, but that information would be kept from the jury as prejudicial unless is could be shown to have a direct link to the case.

        My question is simply how the govt will be able to link general photos of Joe and Dyl playing Batman’n’Robin to the case in a way that will make them admissible.

        • CDinDC
          03/10/2010 at 8:14 PM

          LOL Ah….thanks Carolina.

        • Craig
          03/10/2010 at 8:52 PM

          Good question Carolina. I trawled through the Federal Rules of Evidence for a clue. I wonder if either Rule 404 or 405 address that.

          Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

          Rule 405. Methods of Proving Character

          Or maybe 406? Habit; Routine Practice

          • Bea
            03/10/2010 at 9:07 PM

            My sense is that (1) these clearly tie the “equipment” to Joe (not just Dylan, because it was only in “his” closet); (2) establish that they USED the equipment, didn’t “collect” it like stamps or celebrity signatures.

            • Clio
              03/11/2010 at 6:47 AM

              LOL! Come to think of it, stamp collecting would have been a better pasttime for the boys; Sarah, then, could have been fully included.

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

              My sense as well Bea, plus the tie to Joe makes it more likely than not that his domestic partner was not ignorant of its existence and use in their household.

              • CDinDC
                03/11/2010 at 11:16 AM

                Hoya,

                I’m curious as to your take on my question I posed yesterday.

                Here it is: “I know that it is illegal to possess drugs, but having drugs in your car or in your house constitutes ownership of the drugs. I understand that owning S&M equipment isn’t illegal, but can this same test be used for the equipment found in Dylan’s room?”

                • Hoya Loya
                  03/11/2010 at 1:45 PM

                  CD:

                  I haven’t been ignoring this, but rather puzzling over it.

                  The looking-glass world of this case seems to raise issues to which one would never give a second thought in another context (i.e. Miranda protection for non-incriminating statements). Constructive possession is used in criminal cases to establish ownership of illegal objects that the defendant, understandably, denies it owns. Normally, nobody would be fighting over ownership of legal objects. But, in the event the defense tries to argue that they were storing them for Michael who was researching possible inventory for Eye Candy Video, the extensive trove of objects was found in Dylan’s room, in a house owned by Joe and Victor. This would tend to indicate that at least Dylan had possession and control of the items, whether or not he “owned” them, and perhaps the owners of the house as well, depending on how “private” and secure Dylan’s room was. The photos would cement the concept of control by Dylan, plus clearly extend, at the very least, knowledge of the objects to Joe.

  2. CDinDC
    03/10/2010 at 9:39 PM

    I know that it is illegal to possess drugs, but having drugs in your car or in your house constitutes ownership of the drugs. I understand that owning S&M equipment isn’t illegal, but can this same test be used for the equipment found in Dylan’s room?

    • Carolina
      03/11/2010 at 10:47 AM

      But owning it doesn’t go toward proving it was used specifically in this case. Photos of it being used doesn’t prove it was used on Robert. I keep thinking there must be something that takes the prosecution from A to B and finally to C; otherwise, it would seem prejudicial and without connection to the case. Nothing about Robert’s death appears to be the result of S&M practices that are shown in those photos.

      • Hoya Loya
        03/11/2010 at 11:14 AM

        Carolina:

        The prosecution’s theory is that Robert was restrained, chemically and/or otherwise. The equipment could demonstrate the “otherwise.”

        Remember this is a conspiracy case. The equipment and its use by at least two of the suspects was not publicly known. Covering up its possible use on the victim would be one of the motives for the clean-up and cover-up.

        Also, the possibility it was used and that there were at least two people in the house who knew how to use it, dovetails with the prosecution’s argument that the guilty party or parties is/are known to the trouple and that they are covering up accordingly.

        • Carolina
          03/11/2010 at 2:28 PM

          I see now where you’re coming from; thank you. Is there any evidence that we have seen thus far to indicate that the restraint was physical? I recall that there were no immediate signs of ligature marks, but has something more subtle arisen?

          • Hoya Loya
            03/11/2010 at 3:55 PM

            I believe there were materials found in Dylan’s library providing instructions on non-injurious restraint. Maybe someone else here remembers for certain.

            • Penelope
              03/11/2010 at 4:23 PM

              Hm, I wonder if those portions were highlighted. The idea of Dylan studiously highlighting BDSM texts cracks my shit up.

            • Carolina
              03/11/2010 at 7:14 PM

              Ah, brilliant. Let us hope.

          • Robert
            03/20/2010 at 8:50 AM

            As I had previously stated, there appears
            to be a serious conflict between the conclusions of the coroner and the theory being advanced by the prosecution.

            I seem to recall that the coroner, Lois Golinski, concluded that Robert was not subject to physical restraints. Instead, she theorized that he was subdued by a paralytic (for which she did not test) and/or smothered by a pillow for which she had found some fiber evidence.

            I find it curious that AUSA Kirschner
            has indicated that he will likely drop the paralytic theory and seek to introduce evidence that “restraints” were used.

            I myself have hypothesized that Wone may have been bound with restraints, but in such a refined way or for such a limited amount of time that either the evidence was not perceptible by the coroner or that she simply came to the wrong conclusion in this regard.

            According to Lou Chibarro’s article in yesterday’s dcagenda, prosecutors filed a motion in February seeking to
            “introduce evidence at trial that Price, Zaborsky and Ward engaged in possible criminal conduct . . . pertaining to the
            use of S&M related restraining devices as well as devices used to administer electrical shocks to a person’s genitals.”

            Chibarro’s article also refers back to the complaint which stated that “a paralytic must have been administered to Wone to render him immobile but [the prosecution] acknowledged that the autopsy and subsequent chemical tests could not find traces of such a drug in Wone’s body.”

            But now according to the Chibbaro article, Kirschner has “submitted a letter to the defense . . . saying that the government obtained new information from medical experts that appeared to raise doubts over whether Wone had been sexually assaulted or immobilized by a paralytic drug.”

            Is AUSA Kirschner really saying that Robert wasn’t physically restrained,
            chemically paralyzed and sexually assaulted?

            Or is Kirschner simply saying that the prosecution is not in a postion to prove any or all of the above?

            Or is Kirschner saying that it will be easier to get a conviction for evidence tampering and/or obstruction of justice if the prosecution drops the previous theory of paralysis, immobilization and assault?

            I am still waiting for somebody to tell me about the significance of succyincholine?

  3. Clio
    03/10/2010 at 11:04 PM

    What did Whalen & Waid want from Dylan in 2007, the high-water-mark of the intruder theory? And, why did he agree to talk without attorneys present? Was it before or after his trip to Thailand?

    • Robert
      03/20/2010 at 8:53 AM

      CLIO Given the prosecution’s latest theory on restraints, it may be that with respect to Dylan we are talking about the “Thais” that bind.

      • Clio
        03/20/2010 at 12:36 PM

        Zing! The government claims, of course, that this 2007 visit to Dyl never occurred. According to them, it was Joe who was questioned then … about the “burglary” and not about the murder. Birdie and the Editors say that this assertion seemed to agitate Mr. Price on March 12. Why? Was his distress concern for Dyl’s honor or worry over his own testimony?

        • Robert
          03/20/2010 at 4:55 PM

          DAVID

          When it cUms to S&M, the defense may claim that James is a PLANT.

          CLIO

          Sounds like Joseph is WAIDing in 2 dangerous waters. Hopefully, it is only a matter of time before he’s WhALeN.

          The only honor about which Joe could be concerned is “honor among thieves” or PRIDE in murder in this case.

  4. Clio
    03/10/2010 at 11:21 PM

    One last discussion question, class:

    In what ways, if any, is the government’s reliance on Plant designed to rebut the defense’s claims of a homophobic or insensitive investigation?

  5. Craig
    03/10/2010 at 11:45 PM

    Good point Clio. We can expect the former MPD Gay Liaison Sgt. Brett Parson to testify as well. He’ll likely provide some cover for Kirschner.

Comments are closed.