New Bits – And Old Hits – In The Prosecution’s Playlist
More paper filed in advance of this Friday’s status hearing means more late night reading. On the nightstand currently:
- “Reply In Support Of Defendants’ Motion In Limine To Exclude Argument, Testimony And Evidence Regarding Sexual Assault”,
- “Government’s Notice of Intent To Use Statements”, and
- “Government’s Omnibus Opposition To Defendants’ Motions In Limine.”
It’s enough to make one long for Herman Wouk.
First, the statements. Leaving the legal arguments regarding admissibility and the Confrontation Clause aside, the government leaves open the option of seeking to admit all of the videotaped statements by the defendants in their entirety. As we’ve seen, there may be some there there.
Further, Team Kirschner lays out other statements by Price, Zaborsky and Ward that “…implicate the Declarant only.” Statements like “I heard a scream” (Price to EMS workers), “…there is a black guy who lives back there.” (Price to MPD officers on scene), that the three share a “polyamorous relationship” (Ward to Det. Gail Brown), etc. Rounding out the hit parade are statements made by Zaborsky and Ward to the Grand Jury regarding Michael Price’s burglary of 1509 Swann Street.
Next is Price’s (through his counsel Bernie Grimm) letter regarding exclusion of evidence. The letter knocks FBI tests that “…determined that all of the so-called “semen” was that of Mr. Wone…” (emphasis theirs), lectures on the difference between semen and seminal fluid, and runs down the qualifications of Dr. Goslinoski…punctuating each of the arguments with the repeated assertion that “…there is no evidence that Mr. Wone was sexually assaulted.” (emphasis theirs.) The assertive language (and aggressive use of bold and italic) are pure Grimm, and reads as if he has the upper hand.
And of course, he may. It was just in March at another status hearing that AUSA Glenn Kirschner admitted the government’s “…theory is evolving…” on sexual assault, further noting “…I don’t know that we’re actually going to get to the paralytic phase, to be honest.”
Not exactly a declarative statement moving assault and paralytics off the table, but certainly suggesting their location somewhere near the back.
So can the prosecution bring a strong case without assault and paralytics?
A confident yes is the government’s reply in the “Omnibus Response to Defendants’ Motions In Limine.” Did they find a paralytic agent in testing?
A deeper articulation of their evolving theory than we’ve seen before, the document lays out a roadmap of sorts to what sort of case prosecutors will bring.
Some of this we’ve known before. Robert Spaulding will testify
“…the room and home in which Mr. Wone was found exhibited none of the forensic evidence characteristically present at violent, multiple stab-wound scenes…”,
Doug Deedrick will testify
“…that the blood pattern found on the knife recovered on the scene is more consistent with someone having taking (sic) the bloody towel and swiped it across the knife…”
and Lois Goslinoski will lay out “powerful” testimony that includes the assertion
“…Mr. Wone was not able to move (i.e., he was incapacitated) at the time he was stabbed.”
But there are some new bits as well. Taking to heart Thomas Connolly’s bold prescription to “…test away…” FBI toxicology Roman Karas on April 14 of this year detected the presence of xylenes in the remaining 3 cc sample of Robert’s blood. Essentially a family of chemical solvents, xylenes can also be inhaled, producing disorientation, euphoria, unconsciousness and a loss of motor skills.
Whether Judge Lynn Leibovitz allows this blood test results in as evidence is anyone’s guess. Did the government produce the findings in time for the defense to properly respond? Karas continues to test on quantifying the amount of xylene present in the sample. We should expect a follow up defense motion in limine to exclude these tests. Team Swann no doubt heard Leibovitz warning Kirschner at the March status hearing:
“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.”
Lastly, and perhaps most critically, the government lays out in unusually clear language their argument that:
“…the defendants (1) would, based on their unique relationship, delay the report of a crime to protect the true perpetrator of the crime where it was someone well-known to them, and (2) in fact, did so under similar circumstances in delaying their report to the police of Michael Price’s burglary of 1509 Swann Street…”
They back this up in unsparing tones, noting that Price was a “…controlling personality,” that Price and Zaborsky’s relationship “…primarily served to fulfill defendant Price’s need for an emotionally-stable relationship…and the other served to fulfill defendant Price’s need for a sexually-satisfying relations (Price and Ward),” and finally:
“despite the obvious complexity and resulting tensions existing in this three-person relationship, defendant Price, as the common and dominant personality among the three men, nonetheless managed to maintain the relationship and keep it intact.”
So. A family kept together by the force of one personality. A man found murdered in the house. Signs of incapacitation. Evidence of substantial crime scene tampering. And a family history of delaying contact with the police to protect brother Michael.
The government’s hit list is starting to take shape.
–posted by Doug