"Our Theory is Evolving."
A Clearer Sense of What We’ll See at Trial
Considering the reams of paper filed in advance of Friday’s status hearing, Judge Lynn Leibovitz again demonstrated firm command in managing her courtroom. Amazing what can be accomplished in just one hour and nine minutes.
310 Moultrie was packed – not an empty seat – when Judge Leibovitz gaveled proceedings in at 3:05. Tom Connolly & Amy Richardson for Victor Zaborsky; David Schertler, Robert Spagnoletti (who stayed seated in the gallery) and Veronica Jennings for Dylan Ward; and lone wolf Bernie Grimm for Joe Price; AUSAs Glenn Kirschner and Patrick Martin for the government.
The motions to sort through were many, including one just filed today – an updated Defense Joint Motion to Compel Discovery. Judge Leibovtiz cleared the plate somewhat by moving the motions to sever and to suppress to another time, but that left plenty to discuss.
David Schertler started off on the Motion to Compel 16 (a)(1)(e) Disclosures, stating while the defense has met it’s obligations in providing all the experts they intend to call (although we learned later that may not be completely true) the government hasn’t. That’s about as far as he got before Judge Leibovitz cut him off, the first of many times she did that. “I will deny your motion without prejudice to what may come up, and you’re free to object at trial.”
But she had warning words for the government as well. Responding to defense complaints that the expert disclosures were somewhat stingy, she warned “…the government slims down at its peril. It may be satisfactory, but at trial is something unexpected comes up, it may be inadmissible.” In other words, the government has met its discovery obligations, but let’s not have any surprises.
Leibovitz also cautioned the government that it has very little time left to continue its testing – notably Patrick Martin’s comment that Deedrik and Spaulding “…continue doing some additional tests, stabbings through t-shirts, blood transfer…” and the like.
“When will it be done?” the judge asked. “We haven’t got a firm response,” Martin answered. “It’s now exactly two months to trial. Additional test results may or may not come in. The question’s going to be: what’s fair to the defense.” The same caution was provided to the defense, too. When asked if its disclosure on experts was complete, Shertler stepped back from his earlier assertion. “There may possibly be two more…in two weeks we should have everything.”
Leibovitz made it clear, very clear, she wants no continuance. This trial will commence on May 10.
Discussion next followed of what evidence the defense would try to move off the table via a Frye hearing, such as the tests that found semen inside Robert, the toxicological testing of a paralytic agent, and other items.
Most of which were rendered moot by what happened next. After the jump.
We learned a great deal from the prosecution today. Glenn Kirshner confirmed that only 3 ml of Robert’s blood are left; too little according to FBI consultants to allow for any further probative testing. Kirschner said that on April 24, 2007, the D.C. Medical Examiners office “discarded” Robert’s toxicological samples (along with those for hundreds of other cases) but that histological samples remained in formaldehyde – making them useless for further biological testing.
We learned that the radio run recordings were erased by the MPD per standard operating procedures, since years elapsed before any arrests, and most likely do not exist anymore (clearly an admission that irritated Mr. Kirshner.)
We learned that Detectives Whalen and Waid – according to the prosecution at least – say that there’s no record of a 2007 visit with Dylan Ward…but there was of some questioning of Joe Price after the October 2006 Swann Street break-in. This exchange brought a very visible reaction from Joe Price, assertively shaking his head in the negative.
Then the discussion moved to the hot button topic of Uncharged Conduct. It was at this point that Kirschner began to more clearly lay just what the government is inclined to present at trial. Leibovitz pressed him repeatedly on several points.
Referring to pages 1 and 2 of the governments filing on Uncharged Conduct, she asked Kirschner if he still intends to present to the jury that the killer is someone known to the defendants and not an intruder. He said yes and also indicated Price’s brother Michael may also be someone in-the-know.
Leibovitz: “But you’re not saying that any or all of the defendant’s participated in the crime of assaulting, restraining or killing Wone.”
Leibovitz: “…and that the clean-up is the evidence. You’re not saying someone here did it.”
Kirschner: “Not directly, no.”
Leibovitz: “So you won’t present that to a jury?”
Kirschner: “Not directly, no.”
This lead to more direct questioning by Leibovitz as to just what the government intends to present as far as page 9 of Kirschner’s filing, if Robert was sexually assaulted and restrained. Kirshner again, “Not directly.” At that point Bernie Grimm jumped up to interject to ask what exactly “not directly” meant but Leibovitz cut him off. The crimes discussion will come later she said.
She kept drilling Kirschner. Was he planning to argue to the jury… that he was sexually assaulted, any equipment was used to assault him or if he was injected with a paralytic? “Our theory is evolving,” said Kirshner and that his experts’ opinions vary. “We’re moving away from the sexual assault… but we will continue to see to introduce certain items such as restraints.” The government, he said, is also not inclined to present that Robert’s semen was found inside him. “Torture I think is an open question at this point,” he added.
Items that remain on the government’s table: paralytic perhaps no, but there was evidence of puncture wounds – 3 to the neck, 3 to the torso, 2 to the ankle and 1 to the hand. “There will be evidence that there were pre-mortem puncture needle marks.” The medical professionals he said, contended those punctures were not all the result of medical or therapeutic intervention. Then this, “I don’t think we’re going to get to the paralytic phase to be honest… that is my inclination,” he said. Sexual assault and paralytics are out Leibovitz asked; Kirschner confirmed.
Leibovitz asked that Kirschner respond to the defendants Uncharged Conduct response and clarify his theories. That is due April 2.
Schertler got up to complain once again that the defense had to hit a “moving target.” The winnowing of the theories is good he said but he wants a date certain when he’ll know just what the government is going to argue. “I think May 10, 2010 is the date and you all know that,” Leibovitz chuckled.
Then the discussion moved to a change in venue – not outide the jurisiction but out of the cramped confines of room 310.
A brief defense ex parte followed, as observers filed out.
Next status hearing: Monday, April 5 at 300pm.
A fifteen minute delay in the start of the hearing allowed for extended interaction among attendees and observers. However, much like the growing sense that the trial to come may be a little drier than previously expected, the scene outside was a little less eventful than previously.
Supporters of Kathy Wone turned out in large numbers, arriving early and keeping a tight circle.
Victor and Joe arrived together, each wearing their commitment rings. Making a bee-line to their supporters, Victor greeted Aunt Marcia as if he had not seen her in a long time. While Kim Musheno was showing Aunt Marcia photos on her iPhone (adorable children shots, perhaps?) Victor stayed close, smiling and enjoying the conversation. Arriving a bit later and sporting a good tan, Dylan spent a considerable portion of time speaking with an unknown male supporter…all while Joe mingled and networked with supporters.
Unlike previous hearings, there seemed to be very little discussion between attorneys and clients. It was a mostly quiet affair, with Kathy’s supporters in one clump, the Trouple’s supporters in another, and the growing defense counsel in a third.
In the court room, Victor sat on the right, Dylan in the middle and Joe on the left. It was noted that there was a fair amount of space in between the three defendants, and unlike past hearings, Joe remained nearly silent…although frequently fidgeting, biting his nails and generally appearing uncomfortable. Victor appeared unusually grim, scowling at both defense and prosecution. It was actually Dylan who seemed the most engaged, speaking several times with Schertler, and demonstrating more emotion than we’ve seen at any other hearing.
Like the last hearing, Dylan and Victor left by the rear exit along with attorneys Connolly and Schertler. Bernie Grimm was seen leaving shortly after. Joe, curiously, was not seen at either the front or rear exits.
-posted by The Editors