Hocus Pocus

Kirschner Pulls A Couple Rabbits Out Of His Hat

With the May trial looming just weeks away, we’re trying to stay current with the latest motions and filings.  Not always easy given the challenges posed by DC’s stone age system of court document storage and distribution.

Hitting the clerk’s office last week was the government’s slim (18 page) Response to the Defense Motion to Sever.  Also waiting to be pulled is a leviathan 260-page Government Response to the Defense Motions to Suppress.

260 pages of light reading for Wednesday or Thursday?  Try Moby Dick.

Kirschner the Magnificent

But first some sleight of hand: a hatful of previously unseen docs magically appear.

These are conjured up in a March 25 letter from Victor Zaborsky counsel Tom Connolly, on behalf of his defense colleagues, to prosecutor AUSA Glenn Kirschner.

He quotes a March 19 letter from Kirschner to the defense team, saying that a raft of previously undisclosed documents have all of a sudden been found.  From Kirschner’s letter:

“…in the process of preparing our opposition to your motions to suppress your clients’ statements, we have uncovered additional statements by your clients of which we were not previously aware, and thus not disclosed.”

What are the documents that have Connolly so worked up?   Some minor stuff, like videotaped interrogations, handwritten detective notes and the “recollections” of nearly a dozen MPD officers from the night of Robert’s murder.

That’s all.  No biggie.  Poof…just kinda showed up.  Like magic.

From Connolly’s letter to Kirschner, a list of the material he wants:

“A videotaped recording of Mr. Victor Zaborsky, made at approximately 5:30am during his custodial interrogation

Five pages of handwritten notes made by Det. Brown taken during her August 3, 2006 interrogation of Mr. Dylan Ward and Mr. Zaborsky while they were confined at the Violent Crimes Branch.

Three and a half single-spaced pages of “recollections” of eleven different police officers concerning a wide range of statements allegedly made three and a half years ago by the defendants.”

No surprise that Team Swann wants a look at these and a thorough accounting of how they suddenly materialized.  Connolly says he hopes to “…avoid the very sort of eleventh-hour production that has just been made.”

Connolly wanted them by yesterday, along with the following:

Regarding the Zaborsky videotape and Detective Brown’s notes:  “When, exactly (the date) each was found;  Where, exactly each was ‘found…”   At the MPD or US Attorney’s Office?  And whose office they were found in.

“Identify who found the video and notes, what prompted the discovery and how the discovery was communicated to your office.”

“Identify what  – if any – measures are being taken to search all offices at other appropriate location..”

Regarding the statements of the eleven MPD officers:  “When, exactly (the date) did each officer recall these statements;  What notes, if any, do (they) possess that reflect these new recollections?”

“When the recollections were conveyed to your office, to whom they were conveyed and under what circumstances.  eg. did the officers spontaneously contact your office or did someone from your office contact the officer?’

Still nowhere to be found is the mythical list of Swann Street key holders that Price supposedly provided Detective Norris, along with a diagram of the house’s guest room.  We remember this from the April status hearing.  April 2008.

The questions:   Does this happen all the time?  Does anything in there raise flags?  Are they Brady or Jencks?  And what of Connolly’s laundry list: gettable or just memo barking?

We’ve become usual suspects in the underfunded, understaffed clerk’s office, with near daily visits to pull docs and schmooze the staff and court groupies.  Tips for anyone making the trip:

Hope it’s not complete chaos when you get there,  hope the printers are full of toner and that one of the few medieval workstations is operational.  Bring your own copy paper (because that stuff doesn’t just grow on trees).

There’s a 260-page motion up there waiting for us to print.   What could possibly go wrong?   It works like magic.

-posted by Craig

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14 comments for “Hocus Pocus

  1. BenFranklin
    03/30/2010 at 11:36 AM

    Appalling prosecutorial misconduct!

    All the casework stinks. We may see delays and eventual dismissal if Kirchner’s office has been selectively withholding discovery.

    I’m even more suspicious of the police overcompensating for their incompetence with more misconduct & lies.

    • CDinDC
      03/30/2010 at 11:57 AM

      ::humming Aerosmith while I work::

      ~~Dream On Dream On Dream On
      Dream ’til the dream comes truuUuUuUue~~

    • former crackho
      03/30/2010 at 12:17 PM

      I think my cat likes cheese.

    • METO
      03/30/2010 at 1:34 PM


      Ben – talk about over-reacting especially without more information. Do you have the ability to appear remotely even-handed?

      Now that I have said that, there is no way that this is ultimately good for the Prosecution. At best, this is sloppy work on someone’s part and could lead to exclusion of these late discovered matierals. At worst, if it turns out to have been intentional and the material is exculpatory, it is very bad except for the fact that material is being over 6 weeks before and not after trial.

      And yes, as much as it pains me, it is conceivable that this problem results in the trial being delayed especially if the prosecution wants to use the material. But barring proof of prosecutorial misconduct (and Ben that is defined as something other than negligence and note that it is being turned over now rather than 3 years after trial), I don’t see a dismisal as being reasonable.

      Even if the material isn’t late for trial, it could be excluded if the chain of custody cannot be established.

      I note that the Defense waited 6 days to file their demand and then “gave” the Prosecution 2 business days to respond. Nice.

      Finally, I wonder whether the videotape turns out to have Victor being read his Miranda rights in which case not permitting the material to be used would lead to a different injustice.

      All in all the Judge will have a lot to weigh here and I cannot say based upon what we know how this will turn out. It won’t be pretty, but Ben’s hysterical refrain has managed to make any result look reasonable in comparison.



      • Craig
        03/30/2010 at 2:14 PM

        METO (and others): How much time does the defense need to process the findings in these documents? It’s not like a piece of physical evidence that has to be shipped to a lab for analysis.

        Six weeks doesn’t allow them enough time for them to digest these rather tardy finds?

        Will the defense ask to interview the detective and eleven officers ahead of trial? Or if any of these cops end up testifying, isn’t cross sufficient to beat them back?

        Can the defense use sloppiness like this in their attacks on the MPD and USAO at trial?

        Something I’m trying to wrap my arms around: AG Holder has a vested interest in the outcome of this case although for conflict reasons he probably would never admit it.

        Knowing that prosecutorial misconduct has been a serious issue @ DoJ, don’t we think that that Kirschner would be crossing every ‘T’ and dotting every ‘I’ knowing that his boss the AG has some skin and an emotional stake in this game?

        • Bea
          03/30/2010 at 2:21 PM

          Just because the defense is sounding all the alarms does not mean there is a fire. I expect the Judge to say (presuming any logical explanation) “six weeks is enough time – this is not the eve of trial”. End of story – in my opinion.

          • Hoya Loya
            03/30/2010 at 3:11 PM

            Agree. Can’t imagine there is anything truly exculpatory or damning in there and that if there was that Kirschner would have held it back. I’m sure this stuff was misplaced by the MPD, given their track record in this case, and probably turned up in response to prosecution urgings to search again for anything that might not have been turned over in the wake of the most recent court hearing on the subject.

          • SheKnowsSomething
            03/30/2010 at 3:17 PM


            And I’m surprised it took Ben almost two hours to get all up in high dudgin about this discovery. I wonder how quickly he’ll come down with a severe case of the vapors when a damning piece of evidence that further incriminates his friends turns up?

            • Meto
              03/30/2010 at 8:27 PM


              Trying to be an objective observer, I think that the Defense, even if nothing is excluded, can try to use this late discovered material to suggest to jury sloppy action by police (more likely) or prosecution. But I think that would play better with Jury Nullification when a jury could be viewed as sympathetic to “abused” defendants and I don’t see that playing out here. So in the end it may not matter much.

              Still my sense of fair play and justice is more than a bit offended by this late discovery and disclosure. Sorry, but it’s true. It only takes one juror to get a hung jury. What if someone like me (well it can’t be me for obvious reasons) is on the jury?

              Having said that, I agree with the comments that getting this out March 19 was smart, very smart.



              • Hoya Loya
                03/31/2010 at 10:07 AM

                While I’ve questioned the ultimate impact and significance of this development, I do share your offense.

                Robert and his family just cannot catch a break in this case, from the numerous mistakes by the MPD, to the tests not conducted and samples not taken by the ME to the foot-dragging and now late disclosures by AUSA.

                Karma is a powerful thing and with all the good Robert contributed to the world in his too-brief lifetime it is way out of balance. When is it going to knock the killer(s) right on the head?

    • rk
      03/30/2010 at 3:14 PM

      Ben: as a practicing attorney I can assure you are over reaching here. If this is appalling prosecutorial misconduct, I’m Santa Claus.

      This evidence might be excluded. It might not. The judge will decide about the admission of evidence. The judge might chastise the prosectution. It’s a normal process in the give and take of any criminal case of this importance.

      Accusing others “misconduct” and “lies” does not make it so. Prove your case, or at least put together a compelling argument as to why they are lying.

      • former crackho
        03/30/2010 at 3:55 PM

        There we go again, acting like Ben isn’t just trying to get some attention.

        • Clio
          03/31/2010 at 9:45 PM

          I know, FCH. Given Ben’s recent bouts of petulance, perhaps, the Gipper should be placed on the $100 bill. On second thought, maybe not.

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