Target: May 10

At first it didn’t  look like today’s status hearing was going to start on time.  It was nearly 3:00pm and there was no sign of the defendants. 

While his defense team colleagues were all seated in room 310, Victor Zaborsky counsel Tom Connolly was the designated lookout watching the zig zag of escalators in the atrium of the Moultrie Courthouse.   A few minutes before 3:00pm the Swann Street defendants were spotted coming up, all together.

Judge Lynn Leibovitz was wrapping up her previous case and was awaiting the jury to return with their verdict.  “Not guilty,” the foreperson announced.  Not guilty on murder in the second degree, use of a firearm in a violent crime and possession of a unlicensed weapon.  A family member wept upon hearing the verdict and was ushered out. Excuse the jury. Done and done.

Without missing a beat, Leibovitz transitioned to the Wone case.  She made it clear what the agenda was: housekeeping.  The major pending motions to sever and suppress, including a few new motions in limine that hit the clerk’s office just today will have to wait.

Leibovitz announced that room 310 will be the trial’s venue.  Another Superior Court judge told her that he was able to juggle a recent four defendant trial with no problems at all.  A three defendant affair will offer plenty of room to move.

The judge still has her mind set on sticking to the trial date May 10,  “We’re on target to have everything resolved and start on time.”

But there sure seemed like there was plenty left to resolve this afternoon.  About an hour and half’s worth.

 Let’s make that an hour and half’s worth of minutia:

Whether government’s expert witness, retired FBI agent and forensics ace Robert Spaudling’s documents have been delivered to the defense.

If the government has provided the defense with the “front of the envelope” documentation on the fingerprint evidence.

When the government should expect to get all their physical evidence returned (all except for item #34, the knife?)

If it’s appropriate for the government to provide the defense with the current DC Medical Examiner’s policies and procedures.

Important to the defense seems to be the chain of custody on a number of evidence items.  Very important it seems.   Connolly maintained there were no chain of custody logs of the knife and fibers.  They have results but no chain.  Leibovitz pressed him to be more specific and state exactly what he was asking for.  She asked him where exactly in Rule 16 does it say the government owes him any of that.  She wanted specifics and pointedly told him, “You really haven’t described that piece of paper.  You haven’t articulated what you want.”

Leibovitz then turned her attention to the three defendants.   While the judge was engaging counsel, the housemates were a little too animated for her tastes and patience.  “I’m talking to the lawyers,” she admonished them, “comments, nods and expressions should be saved for later.”

Tying up the loose ends on the chain of documents, she again pressed the defense team for specifics.  “I can’t order the government to produce or hunt for every piece of paper in the world.  Rule 16 does not require that.”

Reading between the lines of this lengthy back and forth shows how the defense may build their case, calling into question every piece of physical evidence as compromised in some fashion whether by the MPD or FBI. 

We learn of a new defense expert witness expected at trial, a cardiac surgeon.   AUSA T. Patrick Martin rose to express his reservations on this new disclosure.  He may file motions in limine regarding this witness because of credentials and maybe not enough notice was provided.  Martin characterized the surgeon’s possible testimony: that one single stab wound to the heart can incapacitate the victim. 

Next up was discussion on the newly found documents and evidence: videotape of Zaborsky’s interview, notes taken by Detective Brown and the “recollections” of the eleven MPD officers who were in a position to have heard the defendants’ conversations on the night and morning after the murder.   “Recollection,” Leibovitz said sarcasticly.  

Bottom line on the newly found material, there’s nothing new in any of it, nothing of substance that the defense does not already have and the government has complied with their Rule 16 obligations on them. 

Taking the lead on this piece for the government was a new face, AUSA Rachel Carson, who may have the unenviable task of document management for this case.   Connolly managed  a lot of the day for the defense but at one point was at a loss as to who all the the clients were,” Mr. Price, Zaborsky and…. (pause)  Ward.”

MPD Detective Waid, currently in Florida (hmmmm… is that a fishing trip or a fishing trip?) will be a witness at the trial and the defense has the freedom to interview him beforehand.

In order for Leibovitz to rule on the defense motion to sever, she needs more specifics from the government, more details on which statements establish co-conspiracy.  She told AUSA Glenn Kirsner to go read ‘Thomas,” a recent ruling that touches upon the issue.   She gave him until April 16 to respond and gave the defense until April 23 for their reply.

Next to the expected testimony of the government experts including  DC Deputy Medical Examiner Lois Goslinowski, Maureen Walsh and David Sergeant and whether they’ll be offering testimony based on scientific fact or opinion.  To Kirschner, Leibovitz said, “Medical examiners say a lot of stuff, some with certainty, some with not.”  She told him to submit a detailed proffer on the three experts.

On Goslinowski, Leibovitz was even more specific asking if she’ll conclude in front of the jury that Robert was sexually assaulted.  Goslinowski said as much in the affidavit Kirschner responded.  “Was she speculating,” the judge asked, “she can’t just blurt out an opinion.”   Leibovitz told Kirschner he has to get the M.E. to specify how she will approach sexual assault, the basis of her reasoning and this must be shared with the defense.  Bottom line according to the judge, “Did she conclude sexual assault took place with a reasonable degree of certainty?”

This didn’t necessarily suit Connolly who mentioned a Frye hearing on the M.E’s scientific underpinnings on sexual assault.  Leibovitz  quipped, “Why don’t you just file a motion and proffer your opening statement.” 

She warned both sides on the “semantic risks” that may open up the discussion in front of the jury.  Tread carefully on this highly charged issue.

All that was left was to set the date of the next status hearing: Friday, April 23 at 3:00pm.  At 4:30 she began a lengthy bench discussion at counsel and then gaveled out.

The Scene:  Supporters on hand for the defendants were Aunt Marcia and her ever-present companion, Louis Hinton and a just a few others including Kim Musheno.  The Wone family was present with Kathy Wone seated next to her attorney in the civil case, Covington’s Ben Razi.  The courtroom was maybe two-thirds full, if that, the light turnout possibly due to being held on a Monday; it’s much easier to slip out of the office on a Friday afternoon.

Joe Price sat in between Zaborsky and Ward, again balancing a thick binder on his knees.  Ward sat apart from his two housemates separated by someone’s wheel around document case.  At times, Ward, well tanned, appeared as if his eyes were closed during parts of the proceedings.  Price looked engaged, Zaborsky too.

-posted by Craig and Michael

The Sights:

Defendants and supporters depart the courthouse


Defense counsel departs the courthouse


57 comments for “Housekeeping

  1. des
    04/05/2010 at 8:16 PM

    it looks from the videos like victor and dylan left without joe. did he leave separately again?

    • Craig
      04/05/2010 at 8:20 PM

      Des: As you can see from the not-so-shaky-cam, we weren’t all that close but it did look like Price was not in that gaggle departing.

  2. DCTim
    04/05/2010 at 8:43 PM

    Observations from Room 310 and beyond: Not only did DW sit significantly apart from his fellow defendants this time, there didn’t appear to be ever any real contact between him and JP and VZ. Not only that, but unlike the others, Ward appeared almost “frozen” at times – looking straight ahead at the bench while the other two would occasionally glance around the courtroom and make various facial expressions. The only time I saw anything other than that trance-like state from Ward was once when he whispered something to Schertler.

    I was taken by how all three seemed so cool and unperturbed, as though they were sitting in traffic court, possibly having to fork over $100 for a ticket. VZ even smiled on occasion.

    It made me wonder what’s up? What kind of shenanigans might the those three highly paid, high profile lawyers have planned that c/would instill such confidence? Much as it seems to most who post and read here that this ought to be a fairly open and shut case based on the charges and the circumstances, I left feeling uneasy today.

    VZ left with his aunt and a couple other folks down Indiana. Similarly, DW left with a dark-haired woman in the same direction, but not with VZ and his gaggle. I hung out for sometime but never did see JP leave.

    • Bea
      04/05/2010 at 9:18 PM

      Hi Tim – seems like the defense counsel will be blasting away at the MDP’s screw ups and the experts’ not-matching-up to THEIR experts to the point that they’ll at least be able to argue that it was an intruder in a short period of time. They’ll say the intruder with one quick stab wound incapacitated Robert (thus no defensive wounds), that he bled internally (thus no mess), that there was no sexual assault – that they guys know nothing. But I wonder what they’ll do with the ‘different’ knife (unless they have a whore expert ready to say it WAS the murder weapon) and why an intruder would go to all that trouble.

      I get uneasy, too, and then I think of all the inconsistencies and ridiculous statements, that they weren’t robbed, and that the intruder was very neat, quiet as a mouse, and didn’t bump into things in the dark.

      • Eagle
        04/05/2010 at 9:25 PM

        How to explain the needle marks?

        • Bea
          04/05/2010 at 11:45 PM

          I am with you, Eagle. The defense will likely try to paint the picture of a frantic EMT/ER since they disclosed LATER that they did inject him to revive. ALL BS, of course, what the defense will try to do – hope we have a smart jury to see through the smoke and mirrors.

    • Craig
      04/06/2010 at 9:54 AM

      DCTim: Very nice. Thanks for being an extra set of eyes and ears yesterday.

  3. Nelly
    04/05/2010 at 9:18 PM

    Maybe they’re strung out on drugs. Especially Dylan.

    • Clio
      04/05/2010 at 11:30 PM

      Or, the very public deconstruction of Dyl’s advertising caused the core couple to bid adieu to their saturnine third wheel.

      I do wonder if the dashing, bearded gentleman who allegedly was with Mr. Ward at the status hearing in March was by his side this time.

      • DCTim
        04/06/2010 at 4:57 AM

        He was not, at least that I saw. Only a woman accompanied him.

    • Carolina
      04/06/2010 at 8:51 PM

      I would not be surprised to find Dylan with a script for Xanax, considering what he’s up against.

  4. 04/05/2010 at 9:39 PM

    Great reporting! I’m disturbed about that “not guilty” verdict…knowing nothing about what case that is, it seems pretty incredible that the government can bring a murder case and lose it…..especially in DC where crime is part and parcel of living here. As for the attitudes of the defendants, my guess is Ward’s counsel told him to stop talking to the others, which is a good sign he will be the one to split off and make a deal…if I were a bookie I’d say he will turn the day before the trial, after his counsel has had a chance to review all the evidence…

    • BenFranklin
      04/06/2010 at 10:24 AM

      I agree that Ward will split off from Price & Zaborsky with a plea, but it will be his guilty plea for manslaughter.

      The defendants together first must face down the the absurd irresponsible allegations posited by the incompetent MPD, medical examiner & bigoted detectives. Once that is certain, as it will be by next hearing, the truth can surface through each of their attorneys.

      It was a sudden unexpected stunningly forceful motiveless stabbing caused by an unfortunate combination of prescription Lunesta® + Lexapro® + Wellbutirn®.

      Another observer suggest Mr. Ward is lapsing back into a trance as he faces this future.

      I saw this coming without having to wear my spectacles.

      • Bea
        04/06/2010 at 12:32 PM

        Who was the real Humpty Dumpty – a look at the man behind the “falling facade” up next.

      • CDinDC
        04/06/2010 at 12:51 PM

        I like bread pudding.

        • former crackho
          04/06/2010 at 1:02 PM

          Put the pink ticket inside the clock to hide it.

      • Nora
        04/06/2010 at 1:49 PM

        Jessica’s oryx is knock-kneed.

  5. Clio
    04/05/2010 at 11:10 PM

    Editors, I am afraid that my spy, Birdie, spent the day sunning herself on the Mall, but I am glad someone showed up at that Mall of Justice known as Moultrie. Its open-air atrium with its escalators, I am told, gives just the right hint of Potomac Mills, while the red scoreboard in Moultrie with its judges and their rooms, according to observers, reminds one of an aging sportsbar in the Las Vegas Hilton. Justice may be a crapshoot, after all!

    • METO
      04/06/2010 at 12:05 PM


      I know that Sports Bar and the Las Vegas Hilton all to well.



  6. Robert
    04/06/2010 at 4:24 AM

    While it would be fair to say that most bloggers on this site are hoping for convictions, I don’t recall anyone characterizing the prosecution of these defendants as an “open and shut” case.

    The needle marks can be explained in a number of ways. The coroner theorized that the injections were administrations of a paralytic to render Robert helpless to fight off a sexual assault.

    Given there were nine sites, I am not sure that all of the injections occurred at the same time. I think it possible that some injections were administered early for the reasons stated by the coroner and others were administered later to kill.

    “Nots guilty” pleas by defendants guilty of all sorts of crimes including murder are not uncommon. I think that most of we bloggers expected them.

    Personally, I think that Victor would be more likely than the others to turn state’s evidence.

    Other bloggers have various and persuasive theories about why it would more likely be others

    One could argue that DC prosecutors are not the best in the country. I know that I worked for the NY DA which is considered to be the best municipal prosecutor’s office in the US.

    In any event, the LA DA is considered to be one of the better municipal prosecutor’s office in the US and they lost the OJ Simpson murder case.

    Given that Simpson was both Black and an athlete coupled with racism in this country, one would have expected that to be more of a “slam dunk.”

    But Simpson’s defense attorneys were successful
    at injecting racism in order to persuade the jury of his innocence on a basis other than the evidence.

    Notwithstanding homophobia or because of it, I do not think that defense attorneys will be able to pull a comparable “trick” in this kid club case.

    • DCTim
      04/06/2010 at 6:49 AM

      @Robert: You’re right; I think a better way of putting it is that most bloggers here – myself included – feel that based on the evidence (or lack thereof), the timeline, the circumstances, etc, that a conviction should seem likely. But the defendants continued smugness leads me to wonder what web their counsel might weave to create reasonable doubt, other than what’s been speculated here before.

      • former crackho
        04/06/2010 at 12:59 PM

        Or maybe they are just a trio of jerks who are smug my nature.

        • former crackho
          04/06/2010 at 1:00 PM

          ooops… “by” nature.

        • Carolina
          04/06/2010 at 8:40 PM

          This is the best of all possible explanations. What do they have to lose by being smug, and more importantly, what is gained by looking worried?

    • Eagle
      04/06/2010 at 4:18 PM

      Robert: Perhaps the needle marks were done at different times. Could be.
      My point was that the defendants can not and have not explained away the many needle marks.
      Trust me, no EMT/ERT would put needles in the neck, torso, ankle and /or hand .(Possibly trying to start an IV in the hand, but that is a last choice, especially on a young man in an emergency.) There are standard spots for injection as most people have experienced.
      The needle marks had to be done by someone or some others- not a trained health care worker acting in that capacity.
      Yes, perhaps the needle sticks were done by more than one person.

  7. AnnaZed
    04/06/2010 at 1:05 PM

    What is up with the weirdly repeated “stunning, forceful, unexpected” mantra? It’s like some weird masturbatory fantasy and it’s really escalating in the sexual fervor as the phrase is repeated over and over again. Someone is turned on by this description, ick!

    • BenFranklin
      04/06/2010 at 1:12 PM

      You’ll see once real qualified experts analyze the stab wounds.

      • John Grisham
        04/07/2010 at 5:09 AM

        I’m with you Ben. My dog once rolled over in a dead animal carcass to hide its own scent.

    • Bea
      04/06/2010 at 2:04 PM

      Likely Joe crafted this turn of phrase.

      • AnnaZed
        04/06/2010 at 8:44 PM

        I know, goes to my Count/Renfield relationship theory and explains the groupie-like titillation from repeating the sexually charged mantra over, and over, and over again. As I said, ick!

    • CDinDC
      04/06/2010 at 2:19 PM

      “sudden unexpected stunningly forceful motiveless stabbing”

      Got commas?

      • Clio
        04/06/2010 at 4:43 PM

        Yes, Ben, please put your spectacles back on before typing any more infelicities: lay off the Scotch before dinner, too!

  8. Anon. in Arlington
    04/06/2010 at 2:06 PM

    Rubbing my hands in anticipation for the trial to begin and start seeing answers to our knawing questions (well, that is… if they are ever answered).

  9. Angry Parakeet
    04/06/2010 at 2:58 PM

    Anon. 2:06

    Funniest misspelling today

    • Anon. in Arlington
      04/06/2010 at 6:16 PM

      In the excitement and low blood sugar I did not spell check.

  10. Vandy
    04/06/2010 at 3:06 PM

    pretty knarly.

  11. CJ Biggs
    04/06/2010 at 3:47 PM

    I think the fact that none of the defendants has yet to cut a deal with the prosecution is a bad sign. It looks like the defendants are sticking together and will go to trial with the “we don’t know nothin'” defense. Given the high standard necessary for a criminal convinction, it might be hard for a jury to convict. Even if the jury believes that at least one of the housemates is guilty, can they convict all three beyond a reasonable doubt? The simple fact that there are three defendants, not all of whom may share in the guilt, is enough for a jury to find reasonable doubt and acquit all three.

    • CDinDC
      04/06/2010 at 4:14 PM

      Throw all three of them in prison.

      I hope they all watch Lockdown so they can get a taste of what’s to come.

      • Bea
        04/06/2010 at 4:36 PM

        First, CJ, don’t forget that the charges here are conspiring, obstructing justice, and tampering with evidence. If none of them take the stand to say “I had no idea what had happened” then the jury will have all sort of evidence to ponder – from the clean house and short time frame, the wrong knife (and if W-5 testifies that Joe claimed to have pulled it from Robert’s chest, he’s toast – no one else could have wiped it on the towel or plunged it through the tshirt).

        I am guessing that jurors may think Dylan and Joe are more likely MORE guilty than Victor, but Victor made the 911 call and is ‘caught in the act’ of lying to obstruct (intruder, we are stanching blood) so “guilt” is like pregnancy – you are or you aren’t. The MORE/LESS culpable business may get a listen during penalty phase.

        It does boggle the mind that not one of them has come forward. Victor must have decided to spend his best years in prison to show his love for Joe (who couldn’t even stay with Victor unless he brought in a live-in mistress!) – pathetic.

        • Bea
          04/06/2010 at 4:37 PM

          Whoops, forgot to add to CD’s list that they watch a season or two of “Oz”. The sex doesn’t look much like it does in ManWhore or others, to be sure.

          • Clio
            04/06/2010 at 4:53 PM

            Any annotated videography for our Three Stooges must contain a detailed comparison between actual and theatrical intimacies between men behind bars. Don’t drop that soap, for real, ladies!

    • AnnaZed
      04/06/2010 at 4:43 PM

      For murder maybe/definitely, for conspiracy/obstruction (which is sort of a group crime anyway) not so much.

      One or more of them may be able to wiggle a bit on the tampering charges (saying “who me, I didn’t wash-down any walls; I was just having a quick shower when all that happened”) but the conspiracy and obstruction stuff is the Sword of Damocles for these men, and it will fall. I have no doubt about that.

      As to why none of them have made a deal yet, the way I see it they will continue to brazen it out until the last possible moment. Anything could happen, there could be an earthquake, Judge Leibovitz could take maternity leave, Dylan could commit suicide and everything could just be pinned on him, the whole thing could be tossed out for some reason ~ it happens ~ why put yourself in hand-irons when you could spend one more precious day breathing free air and eating decent food.

      They will wait until that moment in trial when the tide inevitably begins to turn against them (and it will) then one of them will talk.

      • Bea
        04/06/2010 at 5:37 PM

        I think you’re right – and assuming all three are alive and present for trial, there will have to be a moment in which Connolly turns to Victor and says “now!” (unless, of course, he believes they are highly likely to prevail – his judgment will be on a different scale than Bernie and David’s – it has to be for him to not commit malpractice).

    • Carolina
      04/06/2010 at 8:49 PM

      There doesn’t appear to be anything to gain by talking now. They’ll wait until there’s some advantage, or not at all. I think I’m the only one who believes none of them will turn, and for reasons that I’d rather not ponder.

  12. Clio
    04/06/2010 at 9:21 PM

    I am heartened that Louis Hinton attended Monday’s hearing. I trust that he’s already written a diary entry detailing his take on the Swann Street Three and their boisterous (to Lynn) courtroom behavior. I also imagine that he was relieved that the younger Price’s name was apparently not mentioned this go-round. You do have to wonder, if Michael and Louis are no longer partners or even room mates, why Mr. Hinton still feels compelled to show his support for his former champion — Culuket? Such loyalty must have its Price.

    • DCTim
      04/06/2010 at 10:42 PM

      Clio: Michael Price’s name was certainly mentioned and bantered about. I don’t think he’s completely dodged the bullet just yet.

      • Craig
        04/06/2010 at 11:24 PM

        Yup, Tim is right. I think Leibovitz herself brought up Michael Price’s name.

        It surfaces again tomorrow when Joe Price’s MPD interview transcript goes up. Joe had a lot to say about a lot of people that night.

        • Vandy
          04/07/2010 at 9:10 AM

          The “intruder” thing. My guess is that there was an “intruder” but it’s somebody or somebodies that the 1509 Swann Street residents know. The “spider” thing too. My guess is that JPrice went out the back to meet a drug dealer (not to kill a spider) and that something the deal went bad, or something went wrong, and the drug dealer (“intruder,” if you will) came back to get even, stabbed RWone and then things got out of control — and perhaps took the knife. The “intruder” could be MPrice since he was playing hooky from class that evening, or it could be Louis Hinton, both, or somebody else known by the 1509 residents. I think then the 3 1509 guys decided to clean up the place, etc., call 911, etc, etc.

          • Hoya Loya
            04/07/2010 at 1:08 PM

            The drug-deal gone bad scenario has crossed my mind, but I couldn’t square it with the timeline/facts. This isn’t a bad take on it. Genius to tie it in with the “spider.”

            It would also explain the clean-up/conspiracy (fear of both the deal being exposed and possible further retribution from the killer if they talked).

  13. Clio
    04/06/2010 at 9:40 PM

    Editors, with Waid in Florida on his possible “fishing trip,” were there any further mentions of Wagner and his “personnel issues” at Monday’s hearing?

    Also, did Bernie and Tom sulk when Lynn stayed with room 310? How will these judicial divas act in such a small venue?

    • Clio
      04/06/2010 at 9:43 PM

      Oops — strike the adjective “judicial” in the last question. Thanks. Everyone needs an Editor!

      • former crackho
        04/06/2010 at 11:52 PM

        let’s replace it with “wannabe”.

      • AnnaZed
        04/06/2010 at 11:58 PM

        Yes, I keep wishing that I could compose my posts and that the editors here would then pour through each one for me and correct my whoppers of syntax, punctuation, spelling and fact for me (they are editors aren’t they?) leaving my pithy points undisturbed, but alas it would seem that they have much better things to do with their time.

  14. 04/07/2010 at 7:25 AM

    My uneducated opinion: I guess is that Price won’t make any deals because 1) he seems a narcissist and it would be a blow to his ego and 2) his attorney Grimm seems to be a blowhard who relishes the limelight…there always has appeared to me to be a danger in getting these blowhard attorneys because their personal egos overtake the best interests of the clients. This is good news for team Wone because it means Price will be sold out…who ever gets to the AUSA first will get the best deal. There has to be brinkmanship starting amongst the three. The psychological hold Price held over Ward is cracking; Ward’s counsel must have asked him to imagine a slight, gay, white massage therapist spending a couple of years in DC jail with a connection to a sex assault…not pleasant in DC or anywhere, I bet, and that reality will have to hit home and overtake the Ward’s emotional pain of betraying his lover Price; In the end, the cliche that there is no honor among theives will be shown to be true.

  15. 04/07/2010 at 7:39 AM

    Just as an additional comment; the above opinion is simply on the assumption that the three defendants are hidding something or are guilty…. I would love to believe that justice will be served but even team Wone seems to conceed staggering errors by the police and EMT; if team Wone conceeds this, who are emotionally vested to give every benefit to the prosecution, then I wonder if an impartial juror who wants nothing more than to get out of the jury room to get home will find guilt over anything, in which case the defendants will be found guilty of nothing. And, moreover, even though they seem highly unlikable (as portrayed on this board) I haven’t read anything that makes me certain of theri guilt – suspicious yes, but beyond a reasonable doubt? So, maybe Grimm isn’t so grim afterall.

  16. 07/03/2014 at 4:38 PM

    Hmm is anyone else having problems with the images on this blog loading?
    I’m trying to figure out if its a problem on my end or
    if it’s the blog. Any responses would be greatly appreciated.

    • Doug
      07/29/2014 at 3:04 PM

      Marshall – we’ll look into it.

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