Gorilla Dust

Kicking Up Distractions Before the Court.  Why It Matters

In modern times it dates back to December 15th, 1991.  H. Ross Perot – remember him? – then a member of the General Motors board, parried with GM CEO Roger Smith’s optimistic perspective of GM’s future.  Distilling Smith’s rosy sales pitch, Perot scooped imaginary dirt and tossed it in the air, saying: “…when gorillas fight, they throw dust in the air to distract one another.”

Mr. Perot would later invoke the dust of the greatest of Great Apes in debates with Al Gore.  “Gorilla dust” became something of a political joke.

But there’s no joking of the root of the argument.  Repeated and collected observations of African Lowland Gorillas confirms they actually do throw dirt in the air – both to intimidate and, in the off-chance, to momentarily distract their opponent.  In evolutionary terms, this makes great sense: all it takes is one bit of dirt in the eye to take your opponent off game, after all.

With last week’s Easter basket of motions from the defense, we now see  their strategy: to kick up as much dust as possible, and hope just a little lands in their opponent’s eye.

As far as the Government strategy, one case watcher with a front row seat described their release of the defendants’ interrogation transcripts as a typical maneuver; an effort to bloody up their opponents before the trial.  Or maybe best described in the Great Ape House as hurling feces.  Price’s 120 pages of rambling was an eye opener.  Zaborsky’s goes up on Monday and Ward’s later.

How much dust, and where it may land…after the jump.

By our tally we count 10 motions from the defense just before last Friday’s hearing….and we note even more from the DC Court this week…all to confound, obfuscate or blunt the prosecution’s weapons.  Among the titles:

  • “Defendant’s Joint Motion In Limine To Exclude All Evidence of Cadaver Dog Searches and “Alerts””,
  • “Defendant’s Joint Motion In Limine to Exclude Argument, Testimony and Evidence Regarding Alleged Restraint And to Exclude Testimony of Mr. James Plant”,
  • “Defendant’s Joint Motion In Limine To Exclude Evidence and Argument Regarding the Burglary of 1509 Swann Street”, and, in one big breath…
  • “Defendant’s Joint Motion In Limine To Exclude Argument, Testimony, and Evidence Regarding Defendant’s Sexual Histories and to Limit Argument, Testimony and Evidence Regarding Defendants’ Sexual Orientation.”
  • (exhale)

And on, and on.  We have more filings we could add, and doubtless more to come.  We shall spare you the details: for those interested, consult our documents.

What is the point of all this?  Why a motion to “…Exclude Argument…Regarding Sexual Assault and Chemical Incapacitation,” when the prosecution has all but abandoned that line of argument?   Why file “…To Exclude All Evidence of Cadaver Dog Searches and “Alerts”,” when it’s already been established that cadaver dog ‘evidence’ cannot be admitted into any trial?

In fact, Judge Leibovitz has already discarded that one with her recent ruling of  “…Order Denying as moot Defendant’s Motion in Limine to Exclude All Evidence of Cadaver Dog Searches and “Alerts.”

Memo to cadaver dogs:  can you smell the scent of desperation?

Memo from Judge Leibovitz:  we already knew that wasn’t admissible.  Stop with the meritless filings, already.

By defense wishes, no mention shall be made of the Trouple’s sexual orientation or history, their practices or devices employed, or the burglary of 1509 by Michael Price.  Nor shall there be any argument of sexual assault or chemical incapacitation, or, it seems, any testimony brought by just about any of the government’s witnesses.  (This, by the way, after years of defense moaning about not knowing every prosecution expert witness to testify, and their sudden announcement of a brand new witness with a brand new argument last Monday.  Whoops.)

Leaving, uh…what, exactly?  The wattage of the patio bulb by which Joe spied the spider?

Look, we fully expect the next month shall generate enough paper in this case to cover the Tidal Basin.  And we well regard the robust legal jousting that accompanies a case such as this.  Every man is entitled to the fullest defense, and we salute the Trouple’s team efforts.  It is our system.

But one other thing – and why this is important.  Our system ensures because every petitioner is entitled a full airing of their grievances before the accused.   The court cannot allow itself to be distracted by the clouds of dust kicked up by opponents.

In the Wone case, we hope for the dust to settle, and no-one to be distracted from the issues at hand.

-posted by Doug

37 comments for “Gorilla Dust

  1. plumskiter
    04/09/2010 at 10:19 AM

    I am a retired federal prosecutor and defense attorney. Please understand that defense attorneys have many responsibilities, including one called, in short, “protecting the record for appeal.” Though their pretrial motions may seem voluminous, repetitious and sometimes moot to the non-lawyer observer, they have an obligation to put their full positions into the record to insure that issues can be raised on appeal, should an appeal become necessary. A defense attorney who fails to fully explain a point during the pretrial phase may be met, on appeal, with the argument that the point has been waived because it was never presented to the trial court. This site keeps trying to read too much into the sheer number of motions the defense is filing. The fact is that their filings are typical of a multi-defendant “federal” case where the attorneys are good lawyers and have the resources to mount a thorough defense. They want to be sure that all the bases are covered, not only in the trial court, but also, if needed, on appeal. What may seem insignificant or even moot prior to trial, can easily become a huge factor at trial depending on how the evidence comes in. These lawyers are just doing their jobs, and they seem to be doing so excellently to me. That said, as a prosecutor, I hated to get lots of motions in the weeks right before trial. It tends to distract the prosecutor from trial preparation. And, as such, is a very good defense strategy to employ. So, again, these lawyers are just doing what is routine in a case of this complexity.

    • Doug
      04/09/2010 at 10:33 AM

      Plumskiter – very good points. Trials are complex things, and this adds to our understanding of how they operate. Hope you’ll keep coming back.
      -Doug, co-editor

    • Craig
      04/09/2010 at 12:56 PM

      Thanks Plum. Any guess as to what the overall billings might be for the case and/or trial?

      What impact do these de rigueur motions and filings have on the bottom line? Or do those hours just amount to rounding errors?

      • CJ Biggs
        04/09/2010 at 2:26 PM

        Plumskitter inadvertently stumbles on the point he was arguing against: “I hated to get lots of motions in the weeks right before trial. It tends to DISTRACT the prosecutor from trial preparation.” Exactly!

        • plumskiter
          04/10/2010 at 8:30 AM

          to cj biggs:

          i did not stumble upon anything inadvertently and i am not arguing any points. it is a fact that prosecutors hate to get lots of motions right before trial because dealing with the motions takes time away from trial preparation. my aim is simply to educate the non-criminal lawyers who follow this site about the realities of the practice of criminal law.

      • plumskiter
        04/10/2010 at 8:35 AM

        i do not have any idea what the lawyers are charging for this case. some charge by the hour, some charge a flat fee. if they are charging by the hour, preparing the de rigueur (great adjective) motions would add to the bill. that said, many of the de rigueur motions are, or start out, as just that – what we call, less elegantly, “boilerplate” motions. In other words, for example, every good defense attorney has a boilerplate motion to sever defendants that he/she uses in as a starting place in most every multi-defendant case, and then modifies to reflect the facts and circumstances of the specific case in question. So, the use of boilerplate (which i will now call de rigueur) motions does reduce the time involved and the bill if one charges by the hour.

        • Deb
          04/10/2010 at 2:08 PM

          Usually we paralegals do the boilerplate motions. We are less expensive than our attorneys who have student loans to repay!

          For the most part, our legal system works. Especially at jury trial, in my opinion. Jurors take their role very seriously in my experience, and thoughtfully consider evidence in light of the instructions given them by the judge.

          I haven’t looked that far into this to know exactly where we stand trial-wise as to whether jury instructions have been considered, but, as a general rule, my feeling is that the jury instructions are the crucial element. Pre-trial motions are gorilla dust, indeed, and, while they may be a “busy work” distraction to the prosecutorial team, have no impact upon the jury.

          I think one of the problems presented in the gorilla dust article is that there is (seemingly) a certain lack of evidence. Prior to crossing over to paralegal work, I worked as a special investigator for insurance companies, so I’ve interviewed a whole lot of people.

          One of the things I found disturbing in the interview transcripts with Joe is that there was very little listening going on by the police. Had they listened, they surely would have asked follow-up questions to several things he said, thereby perhaps stirring up some evidence dust?

          • CDinDC
            04/10/2010 at 2:20 PM

            I agree about the questioning. They didn’t seem to hone in on many things at all. The questioning seemed to be dominated and controlled by Joe’s rambling, which they allowed him to do. They didn’t seem to stop him from digressing from subject to subject. And they didn’t ask him to clarify many of his comments.

            • Deb
              04/10/2010 at 2:35 PM

              There are so many different ways to approach an interview with someone. There is one way to never do it, and that is to enter the interview with a preconceived notion of how the interview will end.

              From what I read in the transcripts, the police entered their interviews with Joe believing that the outcome would be confession.

              Do you want a confession? Sure. But you never want to assume you will get one.

              One very easy thing they could have done: Joe says the grill caught on fire. They salvaged their steaks and ate them with some wine as a beverage. . . Listen to that and follow it up with, “Oh, I love steak. Especially porter house. I could probably go vegan if it weren’t for beef.” Then you open the conversation up to what kind of steak did they nearly nuke on the grill. Where did you buy it, how thick was the cut, etc. Oh, and what time of day do you guys usually eat?

              For me, Joe’s rambling is ok and probably a good thing. The problem was, as you say, they didn’t zoom in on any of it. They were just waiting to hear a confession (or accusation).

              (I don’t want anyone to take this as police bashing on my part. I’m an Irish girl from the south shore of Boston, so how many cops do you suppose are in my family? I am just pointing out that the three particular individuals involved in the two interviews messed it up. It happens, and hind-sight, back seat driving and monday morning quarterbacking are trump.)

              • CDinDC
                04/10/2010 at 3:14 PM

                Deb, your insight to interviewing is interesting. Thinking about it now, I guess the rambling would be good as it opens up avenues of thought for the detectives to travel down. Unfortunately, they didn’t take those opportunities. But I suppose those avenues could be travelled by the prosecuting attorneys during trial.

                • Deb
                  04/10/2010 at 3:33 PM

                  The former prosecutor on this line of talk probably has better info than I, but my suspicion is that the opportunity was lost.

                  The purpose of questioning what kind of steak, where did you buy, how thick was it cut, etc. would go to credibility. Talk about gorilla dust?

                  Most likely, Joe’s offering “the steaks caught on fire” info as a way to explain something he believes might come out in neighbor statements — their grill was on fire. It probably happened. The grill probably was ablaze at some point.

                  Joe claims they salvaged steaks. So ask him what kind of steaks, where did he get them, how much did they cost, etc. Then go to the store, get the credit card info., etc. If you’re lucky, you find out they only eat chicken. Now Joe gets to explain again.

                  • CDinDC
                    04/10/2010 at 4:00 PM

                    sort of like the “what were you watching on tv” comments made yesterday by a several people.

                    Prove what, when, where.

                    In fact, it behove Joe to do so.

                    • Deb
                      04/10/2010 at 4:14 PM

                      The shows is where I would personally fail on any level. I would be the one to say I was watching that funny show I like that usually comes on on Wednesdays I think but I tape it and it has the guy with the black hair and the blonde lady and that cute little hispanic kid.

                      That said, you are absolutely right as far as pinning statements to the bar of soap. Most people do the habitual news watching or walking of the dog at night.

                      The interviewers hung up on “Why are you telling me it was 10:43 when it wasn’t?”

                      They were trying to get the confession and go home. I’ve been there.

                      But there was a dead guy! Which is why it bothers me.

                      That poor guy was likely mentally coherent and physically incapable at the time he was injured. Can you imagine living with that? In the home of one of your closest friends?

                      That’s why I think it’s so great these folks started this site. It gives a voice to the victim.

          • plumskiter
            04/10/2010 at 4:32 PM

            deb, i agree with you wholeheartedly. the police transcript is maddening to read because there are so many direct clear questions they should have asked and gotten direct clear answers to.

            • Craig
              04/10/2010 at 5:09 PM

              I agree that the line of questioning have have been lacking in some regards. But months ago we heard from someone close to the investigation, real close, that Waid and Wagner were two of the MPD’s best detectives, “cerebral” was the word used to describe them. FWIW.

              For the record, in one of the docs referenced by Doug in this post, we learned that Det. Waid has resigned from the MPD and has relocated to Florida. Not a fishing trip after all. Kirschner did confirm he’ll be back in DC to testify @ trial.

              We’ll try to get those motions and filings up soon, but first, on Monday, Zaborsky’s transcript.

              Monday also marks the one month point from the start of the trial. Yikes.

              Lastly, the grill. The only thing I have to go on that tells me the grill was looked at is the fact that the MPD and FBI owned 1509 for weeks after the murder. And if the team was dismantling the staircase and floorboards, I would hope that level of thoroughness made it to the patio and backyard as well. I hope so.

              One month away. I repeat, yikes.

              • Deb
                04/10/2010 at 6:36 PM


                I think the one clear thing that we all need to focus on is that Mr. Wone was aware that he was being killed by his friend or a friend of his friend.

            • Spike
              04/11/2010 at 11:16 AM

              “that usually comes on on Wednesdays I think but I tape it and it has the guy with the black hair and the blonde lady and that cute little hispanic kid.”

              I love that show! And the two guys and the tiny Vietnamese baby! And the one guy who wanted the thing for his birthday.

              But I digress.

  2. Clio
    04/09/2010 at 9:14 PM

    Editors, I loved the Ross Perot reference and the picture of the angry gorilla. But, for future posts, I will also need pictures of a hippo in a house, burned steaks on a grill, and a 2/3 empty bottle of wine in order to appreciate Culuket’s novella completely. And, why would a showman such as Bernie try to ban James Plante, who should charge admission for his testimony? I bet Lynn will order that no one will be seated during the Sgt.’s demonstration of certain implements.

  3. Clio
    04/09/2010 at 11:31 PM

    A stray thought: I wonder if Joe and Victor are going to Equality Virginia’s Seventh Annual Commonwealth Dinner this year in Richmond on May 1. Dyl will probably be in Miami, but Joe and Victor should go for one last soiree before heading to jail for a long time. Joe and Dyl helped to launch this event back in 2004, and Joe spoke before headliner Julian Bond in 2005.

    But then again, Zaborsky-Price probably cannot afford the gas money to the Old Dominion’s capital, let alone the two tickets. Pity!

    • Nelly
      04/10/2010 at 8:00 AM

      If they dare to show their fat, aging faces at the dinner, I hope that the guests there spit upon them for sullying the Equality name and mission.

      • Clio
        04/10/2010 at 9:55 AM

        Nelly, that proposed spitting may be unduly harsh, but the appearance of the two traitors for performance art’s sake may not be necessary. The Cuccinelli opinion (to urge dropping sexual orientation from nondiscrimination clauses at state colleges and universities) is enough of an outrage to get the crowd going without those two “blasts from the past” showing up. Forgotten but not forgiven — that’s what happens to “people like us,” Joe.

        • Deb
          04/10/2010 at 3:18 PM

          Hi, Clio —

          The traitor reference may be harsher than spitting?

          I think it’s best to not bog down in sexual preference. It is what it is, and sexuality (regardless of orientation) is at the root of a lot of domestic violence. It needs to be looked at, and appropriately developed.

          Assuming they are somehow responsible for Mr. Wone’s death either by action or failure to act, then they betrayed collective human compassion and decency. They betrayed a parents love for children. They betrayed the bonds of true friendship.

          I just personally don’t see this as a betrayal against gays. Good guys and bad guys are there in every walk of life. Just because a gay guy is also a bad guy does nothing to diminish gay guys in general, the way I look at it.

          Maybe I have no clue which is entirely possible because I’m straight and haven’t experienced the gay situation first hand, so help me out here?

          • Deb
            04/10/2010 at 3:25 PM

            I got distracted and hadn’t finished . . .

            I think where the issue of their sexual preference becomes an issue is in the police interviews. I think the assumption was made that gay = weak and that a confession or accusation was on the close horizon, as far as the police believed.

            In that sense, the three defendants gave the gay community a boost in my opinion because they certainly shot that little presumption down!

            • Clio
              04/10/2010 at 11:11 PM

              Deb, the trouple are traitors to the social justice causes of which they put themselves forth as leaders. LGBT liberation, in particular, is all about being truthful, “out,” no secrets, authentic, and sincere. Joe, Victor, and Dyl have been about lies, lies, and more lies to cover up a murder. That is not being strong, Deb, that’s just being evil, betraying the very folks who thought that the trouple were principled. Of course, Team Price has framed the case as a latter-day Dreyfus Affair where the accused are set up by official prejudice. That, of course, is poppycock, too!

  4. Charl
    04/10/2010 at 4:48 AM

    I am new to this site – I stumbled upon it via Wikipedia when I did a search on unsolved crimes. I’ve been following your comments, publications etc for the past four days. I thought that I should comment to give you an interesting perspective: I’m from South Africa, have no legal background and knew nothing of this case before Tue this week. Thus, as an objective observer, would I react as a member from the jury would? Would this give an indication of how such members would be inclined to respond? Well, here goes: on the issue whether the defendants had tampered with the evidence and crime scene: ABSOLUTELY. 
    And I underscore this with a ‘Beyond any reason of doubt’. 
    I think the main issues here are 
    1.) The knife – where would the alledged intruder have the time and know-how to swop this? 
    2.) Timeline – this has been discussed and commented on and I agree, it does NOT add up 
    3.) The stab wounds – it’s been noted that the victim had been stabbed from an angle above his head. I’m not clear on the layout of the house and room but could the murderer have stood at the head-end of the bed? If the alledged intruder had to walk in the room and behind the bed, at the head-end to inflict the fatal wounds, then I’m suspicious: why would an intruder be so precise and waste time? This is more befitting an execution as opposed to a sudden, in-and-out violent act.  This points to the body having been moved. (I will touch on this in other posts but feel it might digress from the point at hand, the tampering with evidence, should I expand on this now). 

    There is much more to this cae, I know but I try to be as concise as possible to spare you tedious perusals 🙂

    What I would REALLY like to comment on is the actual murder. This case is very intriguing from an analytical point of view but excrutiatingly disheartening from an emotional one: to realise that there are people in the world who would lure a friend to a  ‘dinner party’ just to use him as an article and prop of their own fantasy. Assaulting him, knowing that such acts would be against his principles and then murder him to keep their own reputation intact.
    Clearly I find them guilty on account of murder too. 
    But that is neither the issue at hand nor as easy to prove: what exact role each played can’t be determined undoubtedly, ALAS.       

    Something else that came to mind: a few years ago there was a murder here in South Africa of a young woman and it turned out that her whole abduction and murder had been filmed to be sold on the black market. Now, it’s highly unlikely that something like that would be done to a victim where the killers are known, plus in their own home – there would be too much evidence. I just think that this is something to consider. 

     I know my lack of legal knowledge, and specifically that of American law may cause me to miss the finer details in this case’s handling. However, I wish to comment from a jury member’s point of view and hope to give you insight in this way. 

    • Nelly
      04/10/2010 at 8:01 AM

      Charl, welcome. Your fresh insight, as someone new to the case, is much appreciated.

    • CDinDC
      04/10/2010 at 11:37 AM

      Thanks for the perspective, Charl. There’s a ton of info on this site to parse through.

      One thought of my one…..intelligence and logic are not the result of law school. Law school is helpful in discussing legal maneuvering, but we are all on equal ground when it comes to discussing the crime itself. Please join in.

      I’m interested in hearing more of your thoughts.

    • Doug
      04/10/2010 at 3:26 PM

      Charl; thanks for adding to this…and we hope you’ll continue to do so.
      -Doug, co-editor

  5. Clio
    04/10/2010 at 11:24 PM

    Recall that Dyl allegedly worked out at home that evening. Do the “working out” narratives go with the grilling of the steaks and then retiring briefly to watch Project Runway, “Reap What You Sew”? Did any neighbors or witnesses notice any smoke around 9-10 pm that evening? Did they notice any burning later in the evening? Did the trouple grill steaks often, or was this spoiled treat a special homecoming for Victor?

  6. Robert
    04/11/2010 at 5:16 AM

    Thank you both for the information and insights.

    A reliable source characterized “Waid and Wagner were two of MPD’s best detectives.” I think that highlights out one of the problems with DCMPD.

    “I think the one clear thing that we all need to focus on is that Mr. Wone was aware that he was being killed by his friend or a friend of his friend.”

    I don’t know to what degree that was true or not.
    But just the thought that it is a real possibility hurts.

  7. Clio
    04/11/2010 at 12:16 PM

    “Mercedes, Mercedes, Mercedes”: I thought that Joe only had a BMW at that time. At any rate, is the Swann Street neighborhood’s ownership of expensive German cars greater than in similar neighborhoods in DC and in other East Coast cities?

  8. CDinDC
    04/11/2010 at 12:57 PM

    approx. 16% of the population in zip code 20009 make above 100K. The remainder make below 100K. Dupont Circle is a mixed income bag.

    Here’s a rundown of the demographics of the main Dupont Circle zipcode 20009.


    • Clio
      04/11/2010 at 2:10 PM

      So, given that demographic data, “Mercedes, Mercedes, Mercedes” turns out to be not just individual braggadocio, but it is a self-serving, hyperbolic myth to locate blame somewhere else. Joe’s sense of entitlement (to a superassumption of his and his harem’s innocence) stems from his self-image as a Virginia gentleman doing public service on the side. The “fashionable” set at Swann could not have done it in part because of their “fucking decorative pottery.” That stance will not please Lynn or a jury in the wake of the vicissitudes of the consequent Great Recession.

      • CDinDC
        04/11/2010 at 4:27 PM

        it’s more like “SUV SUV Toyota Mercedes Smart Car.” I think “mercedes mercedes mercedes” may be up in Chevy Chase.

        • CDinDC
          04/11/2010 at 4:27 PM

          Or West of Connecticut in Kalorama.

  9. Nameless in NY
    04/11/2010 at 5:08 PM

    Deb and Plumskiter, as people who seem to be a bit more in-the-know than the average Jane or Joe (sorry) commenting on WMRW, what do you see the chances of these guys getting convicted being? Also, editors, have you thought of putting one of those poll widgets on the site to measure what visitors think the chances of acquittal/conviction are? Would be nice…

    • Doug
      04/11/2010 at 6:35 PM

      Hello NiN…yes, we have considered exactly that, and you’ll be seeing something soon. And more to the point, we hope to provide something soon with considered opinion on what conviction chances may be.
      Stay tuned…
      -Doug, co-editor

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