Advice and Consent

Zaborsky Withdraws Motion to Suppress

An interesting consent motion ran across the clerk’s desk late Friday afternoon, but because the District of Columbia was celebrating Emancipation Day the Courthouse was closed.  And perhaps ironically, this filing may be evidence of Victor Zaborsky trying to free himself.

It appears that Zaborsky’s counsel Thomas Connolly, or a lower billing rate associate, has been hard at work on behalf of his client, and this maybe the first time Zaborsky has filed a motion separately from his other two co-defendants, his Domestic Partner Joe Price, and their roommate Dylan Ward.

A few weeks back, when Victor filed a motion to sever from his other two defendants, we thought there might be daylight developing between the Swann Street housemates, at least in terms of legal strategy, as they approached the trial.

But, it turned out that all three filed motioned to sever from each other, which appeared to be a standard defense strategy for a case with multiple defendants.

But is this latest filing a standard maneuver as well?

On April 15, this motion was filed:

Defendant Victor J. Zaborsky’s Consent Motion to Withdraw His Motion to Suppress Involuntary and Custodial Statement

Filed:  Attorney: CONNOLLY, Mr THOMAS G

We checked both Dylan’s and Joe’s dockets on the Court database, and while both of their’s reflect Victor consent motion, their individual files don’t show that they have asked the court to withdraw their motions to suppress.

Could this mean something is up?  Is Victor’s staement to police the most truthful, so therefore he has nothing to hide from a jury about what he said that night?  Did Connolly realize that Victor’s statement was custodial, so why even fight it?  Or are Price and Ward still preparing their’s, and will hit the docket this week?  Or does this indicate a daylight between the defendants?

Whatever is the case, at this point, Victor’s motion to withdraw stands alone, and time is dwindling as the trial date approaches.  When the Moultrie Courthouse reopens on Monday, we’ll pull the document and post it as soon as possible.

— Posted by David

15 comments for “Advice and Consent

  1. Bea
    04/17/2010 at 1:03 PM

    What a nice thought for the weekend, a possible break between the defendants. . .

  2. AnnaZed
    04/17/2010 at 1:37 PM

    The cheese stands alone, finally one can hope.

  3. Vandy
    04/17/2010 at 1:52 PM

    What about DWard being represented by Sagnoletti as of 4/14/2010 — what does that mean? And, how about his Motion for Leave filed on Thursday — what does that mean?

    • Craig
      04/17/2010 at 1:59 PM

      Vandy: I think the Spag filing was administrative paperwork only. Judge Leibovitz mentioned @ last status hearing; she didn’t see anything in the file regarding Spag’s work on the case:

      04/14/2010 Attorney Appointed Attorney SPAGNOLETTI, Mr ROBERT J representing Defendant (Criminal) WARD, DYLAN as of 04/14/2010

      I have no idea what this one is all about:

      04/15/2010 Defendant Dylan Ward’s Motion for Leave to Late Filed: Attorney: SCHERTLER, DAVID (367203)

  4. Clio
    04/17/2010 at 3:52 PM

    Decked out in his dandy garb, Tom could be just more efficient than the other Horsemen: Victor’s motion to sever was also the first to be done and submitted.

    Yet the idea of Ma’am being the most “truthy” of the three liars does validate the Victorian notion of women being the more moral sex. Even Charles Dickens would have approved!

  5. Meto
    04/17/2010 at 4:37 PM

    All:

    I tried earlier to leave a comment which has not registered, but I will leave shorter version in case the other shows up.

    Since this is criminal, not civil, case, withdrawing a motion this way is not likely done in order to avoid Rule 11 type attorneys fees sanction. And as discussed earlier about these raft of standard motions, they get filed and largely denied, but reserved for appeal.

    So there ought to be a specific legal reason for doing this. Perhaps it is as the Editors suggest and Victor’s statement is close enough to the truth and Victor (who almost certainly will not take the stand) is content, if not happy, that this will be his only statement.

    The only other alternative that I can think of is that this is part of a larger deal by Victor, although I would think a deal would be a complete package. I discount this possibility.

    Respectfully,

    Meto

    • Bea
      04/17/2010 at 10:23 PM

      Hi Meto. Agree that without the Rule 11 issue aside, nothing jumps out at me as to an obvious reason. I think the statements we read were only the ‘last-found’ ones and not the entirety of transcripts (don’t know if there are more for each defendant or not). I agree it’s unlikely that Victor (or any D) will testify, so I’m curious about this – his 911 call will come in too. If the other two file similar motions, then it’s just more posing. If they don’t, however, it at least has to give the other two defendants and counsel pause. I doubt any expect to win these motions but they have to wonder about the breaking rank.
      Kind of messes up any shot they have of winning the motion (again, doubt they expected to win).

      I agree that this is unlikely to be part of a larger ‘deal’ though POSSIBLY a showing of good faith?

  6. Bea
    04/18/2010 at 1:30 AM

    I think I may have figured this out. In the Government’s Response to the Defendants’ Motion to Suppress Statements, on Page 14, there is a footnote regarding the explicit questions asked and answered by Zaborsky that he was there voluntarily. The footnote states that the Defendants’ Motion did not mention this statement because the statement had just been found and the transcript just prepared “as we prepared this opposition” – it states that Zaborsky’s counsel may wish to amend to specifically include THIS statement as well, but “in the interest of time and efficiency” they set forth a detailed recitation of the interview.

    Because the Detective specifically asked Zaborsky whether he was there voluntarily, cooperated voluntarily, not threatened or pressured, stayed at the station voluntarily, etc., Connolly likely figures the motion is a loser and to continue to argue it will undercut him with the judge on other motions which stand a better chance.

    Unfortunately, because the “voluntary” questions were so specific and he answered unequivocally, I don’t think the withdrawal of the motion by Zaborsky alone has any “special meaning” or indications of a split between the defendants.

  7. Clio
    04/18/2010 at 8:07 AM

    Well, if the truth will really be told, I think Victor as “the angel of the house” came home early to check up on Joe and Dyl. The “split” was already there before the murders. The burned steaks may have been burned on purpose, as “exercising” their demons and “plumbing” their depths became a top priority for Mr. Zaborsky. He was “miffed” about more than just TV-watching or Joe’s canceling of the cable. Indeed, if I had heard that Robert was coming over second-hand from Dyl after the long and tiresome journey that I had to endure, then I may hit Joe over the head with one of the implements in Dyl’s erotica collection. Faced with an angry wife in cold cream and curlers upstairs, Joe went downstairs and took out his drug-enhanced rage on Robert. Dyl facilitated Joe, while Vic flipped out again. Finally realizing what Joe had done, Vic and Joe quickly come up with versions of the intruder story to perserve what little would be left of the ideal of the polyamory that was NOT Swann Lake.

  8. plumskiter
    04/18/2010 at 10:15 AM

    Now that Victor has withdrawn his Motion to Suppress, the Government is free to offer his statements on the night of the murder into evidence. The Government is not required to do so, and may or may not offer his statements. The Government could decide to put all of its forensic evidence in, to show the scene was tampered with [whatever that evidence is], and rest. The Government’s strategy with this approach would be to try to force the defendants to testify to offer their versions of events. The defendants cannot put their own out-of court statements (to wit: the transcripts) into evidence; only the adversary, the Goverment, can do so. Don’t want to mess with your minds too much, but remember: a trial is like a chess game in many respects – the government has a variety of plays to choose from and may not use them all in its case-in-chief. The Government’s choice of plays will take into account what counter moves the defense is likely to take in response.

  9. Hideki Balboni
    04/18/2010 at 11:56 AM

    I don’t see how these three statements are particularly important one way or the other. They are all self serving and none contains anything especially harmful for the defendants. Sure, there are some inconsistencies, but those can be explained away as simply imperfections/errors in the housemates’ recollections after such a traumatic day. All in all, I think the defendants look bad for trying to keep them out. It suggests that they have something to hide.

  10. Clio
    04/18/2010 at 3:13 PM

    Can Mr. Ward’s polygraph results ever be released to the public? I know that the results cannot be admitted as evidence, but releasing them at some future date would enhance the historical record.

  11. Hoya Loya
    04/19/2010 at 8:21 AM

    We’ll see if the other two withdrawals hit today. Either way, it’s that big a deal since the motions never made sense to me. There were no confessions and the transcripts provide a method of introducing the intruder theory without trouple testimony. And depending on one’s view of the questioning, possibly gaining some juror sympathy as well. Even if Joe and Dylan do not move to withdraw, I doubt the supression would be granted.

    As for this being part of a VZ deal, it’s too early to speculate and this evidence is too thin.

  12. CDinDC
    04/19/2010 at 1:23 PM

    I have to wonder if the sudden appearance of Victor’s Consent Motion to Withdraw has anything to do with the fact that this was the first time each of the defendants have been able to see exactly what the other said.

    Perhaps Victor sees lies in Joe’s statement and is now distancing himself from the other statements because he’s confident in his telling of the events.

  13. Bea
    04/19/2010 at 2:48 PM

    I suspect it’s still related to P 14 of the Government’s Response, that they have Victor dead to nuts saying it was voluntary in the late filed statement. Connolly doesn’t want to look like an idiot to the judge.

    CD, I’d love it if you were right.
    Hoya, good point about whether the others file today, but Victor’s statements are more unequivocal than Dylan’s certainly, though Joe’s are pretty clear (and he’s a lawyer and says he’s spoken to his lawyer who thinks he’s crazy for saying more – duh). So maybe Joe will withdraw but Dylan won’t. I agree that there’s something to be said for getting their statement of events in front of the jury without having to take the stand – might be a blessing in disguise if Dylan’s is suppressed and the others not, though in that case there’s a chance all the jury’s concerns would be pinned on Dylan alone (tampering and obstruction, perhaps not conspiracy) if the jury believes Joe/Victor’s claims that they were together and ran down immediately and called 911.

    Of course there’s the problem of the time stamp at pre 11:34 for the screaming AND that Joe notes he may have said that the knife was IN Robert, thus the concern (if W-5 comes through) that he’s had to have been the one to wipe blood on the (wrong) knife.

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