Metaphysics and Truth

Housekeeping…and Keeping on Track for May 10

It was a full courtroom, and relatively upbeat defendants, that greeted Judge Lynn Leibovitz as she gaveled in Friday’s status hearing at 3pm sharp.   On the agenda?  “Housekeeping and setting dates…” said the Judge.

Victor Zaborsky and David Schertler

First up: the government’s objections to defense experts Dr. Smith, Dr. Englert, and top-biller Dr. Henry Lee.  However hthis was largely easy to wrap up: while Rachel Carlson Leiber and Pat Martin for the prosecution said they haven’t yet been given access to these three, defense attorneys Thomas Connolly and Bernie Grimm made clear they will make every effort to connect the witnesses to the prosecution – even resorting to Skype if needed.

But a secondary issue turned out to be less clear, and perhaps more than secondary.  The prosecution is seeking to bar testimony by Dr. Nijam, a cardiologist who intends to testify that a single knife stab to the heart could be enough to immobilize and kill Robert.  Martin says his testimony shouldn’t be allowed because it is too far outside basic scientific consensus.

“How does a cardiac surgeon not get to testify?” asked the Judge.  Because he’s wrong, replied Martin; at least in the specifics of this particular crime he claims.  Judge Leibovitz, signaling greater comfort with allowing expert testimony on both sides and allowing the jury to “…sort it out”, asked the government for more definitive materials to substantiate its opinion.

Next up, the defense’s objections to having testimony from Robert Spaulding and Doug Deedrick.  On Spaulding, objecting not to his qualifications or the science of blood spatter analysis, but his particular findings that the crime scene did not match the crime.  And on Deedrick, his recently announced experiments using knives, t-shirts, equine blood and a pork loin.  More on this in a moment.

And on xylene?  We’ve been hearing this week that the government may be backing off FBI toxicologist Roman Karas’ recent detection of xylene in Robert’s remaining blood samples, largely because there wasn’t enough of it.  (We also speculated, but failed to note for reasons of time in our previous post, whether the entire issue may have been a head-fake from the prosecution.  Our bad.)

Now we know: the government has stated it does not intend to introduce xylene at trial.  This, after being “…thrown off for 10 days on xylene…” said Connolly, who requested a one week continuance and a specific statement from the government, apparently along the lines of ‘we take it back, we didn’t mean it, and we’re sorry.”

Not gonna happen, on either request, was the Judge’s reply.

And to the meat of the hearing: setting a time for final argument and evidentiary hearing to clear up what statements, evidence, experts, and testimony will be allowed.

As to statements, Rachel Leiber told the court the prosecution may introduce all the video-taped statements by the three defendants, but not “…as truth.”

This argument was actually spelled out recently in the Government’s Notice of Intent to Use Statements, mentioned briefly earlier.  We declined earlier, and elect to do so again, to get into the weeds of argument on Confrontation clause, statements offered “…not as truth”, and inculpatory evidence.  The court seemed likewise hesitant, demurring on what was becoming “…a metaphysical discussion of what’s truth and what’s inculpatory.”

“We’ll avoid metaphysics whenever possible,” replied Leiber.

Suffice it to say the government’s decision to enter the video-tape testimony “not as truth” means they won’t have to redact statements by one defendant that possibly implicate another.  Statements to be offered as truth are much fewer; several are spelled out in the Notice, but not enough for Judge Leibovitz, who requested a more specific list.

And then to the next hearing.  On May 5, the Judge hopes to first hear arguments on motions to exclude testimony about the burglary, the use of restraints, the defendant’s sexual histories, cleaning of the crime scene, and debate about blood pattern witnesses.  “That should take maybe three hours…” she noted.  Next will come an evidentiary hearing on motions to exclude evidence related to Deedrick’s pork loin experiment, EMT opinions, and crime scene reconstruction forensics.

One final question from Judge Liebovitz.  “Any more motions in limine?” a somewhat weary judge asked?  “One or two more motions, your Honor,” Schertler offered.

Regardless, we seem to have our next set of goals.  The government next week will  provide substantive materials relating to evidence or witnesses it objects to, and a list of statements to be admitted as truth.  On May 5, the court wants to make final decisions – or as many as possible – as to what exactly will enter trial.

All of this, in just 42 minutes.

The Scene: Defendants Joe Price and Dylan Ward arrived together, Victor Zaborsky not far behind.  They took their seats behind counsel with Ward closest to the Judge, Price in the middle and Zaborsky on the end.  They appeared in good spirits, smiling and engaged with both counsel and supporters.  The courtroom was full.

The Sights: Victor Zaborsky, Thomas Connolly, David Schertler and entourage departing the Moultrie Courthouse. Connolly fields a question and gives a brief reply.

posted by the Editors

15 comments for “Metaphysics and Truth

  1. Bea
    04/23/2010 at 6:39 PM

    I think you’re right, that the xylene was a good head fake. The framework of the trial will be established in the upcoming hearings – what comes in, what stays out. It does seem like she’s a practical sort – a far cry from Weisburg who seemed to favor the defense.

    I didn’t see Ward in the videos – maybe I am not looking in the right place.

    Thanks always, Eds!

  2. des
    04/23/2010 at 8:23 PM

    if the video-taped statements are entered into evidence during the trial, does that make them then part of the public record? ie can we expect to see them posted here?

  3. CC Biggs
    04/23/2010 at 8:35 PM

    Why is the government dropping the xylene evidence? It is powerful evidence that helps to establish that the random “intruder” theory is bogus, and that the defendants’ actions that night were planned/premeditated. I don’t understand why the prosecution is so quick to drop it.

    • Bea
      04/23/2010 at 8:59 PM

      CC, I suspect that either the prosecution knew the judge was going to rule for the defense or that the additional findings about the concentration was not helpful. Hoya posted in the previous thread and I tend to agree – I have to assume that it wasn’t worth it to the case when all was considered. Perhaps the defense could have made a big deal about how many ways Robert could have been exposed to xylene; maybe even the prosecution’s evidence showed it to be a minor amount. And there’s the issue of it just getting the jury side-tracked – it would matter more in the murder trial (if there ever is one) than conspiracy/obstruction/tampering.

  4. Bea
    04/23/2010 at 8:55 PM

    Des – anything in court cases (minor exception when evidence is under seal) is public record. You couldn’t get copies of the VIDEOS, just the transcripts much like what we read from the police interrogations. That said, to get copies of what happens at trial – meaning the transcripts – is extremely expensive.

    • des
      04/24/2010 at 1:22 PM

      thanks. that’s too bad. it would be great to be able to see their expressions, hear the tones of voice, etc. rather than just reading the transcripts. especially since they most likely won’t be put on the stand. (and we wouldn’t be able to hear that anyway, those of us who won’t/can’t attend.)

  5. Clio
    04/23/2010 at 10:07 PM

    X is for xylene, Tom! Enjoy!! I guess “avoiding metaphysics” means doing without the alchemy of the last few days. How many trouples can dance on the head of a pin, Glenn?

    Why would the government care about an outlier such as that wackjob of a surgeon? Any medical Hessian will do for the embattled defense, I guess.

    Lynn is efficient: she belongs in the “rocket docket” of eastern Virginia’s federal courts.

    Victor does look happier than she did on March 12: is it an Indian summer romance with Joe — as the song lyrics go — falling in love again, can’t help it? Or, does Ma’am know something that we don’t? Or, is it a new man in her life altogether? Go figure!

    Best news for Needham and Kathy, albeit for different reasons: NO continuance. The road to May 10 is set.

    • Meto
      04/23/2010 at 10:14 PM


      Are you suggesting the title for Sue Grafton when she gets to “X”? That will be three books from now or about 50 months. By that time, the trial and appeals will have run out.

      Caesar has copies of the first 21 titles.



      • Clio
        04/23/2010 at 11:00 PM

        Perhaps, but I think that any novel based upon the events of this case may be outside of the talents of Ms. Grafton: you cannot make this crap up, and certainly not for a middle-brow, middle-class, mid-list mystery audience! Even Miss Marple has nothing on our Scooby Gang!

        But I do share Caesar’s weakness for Grafton’s oeuvre — a little genre reading here and there never hurts anyone, including the d’lovely and divine!

  6. Clio
    04/23/2010 at 10:28 PM

    How will a jury deal with Henry Lee via Skype? About what is Bernie thinking here, besides billable hours? Pay me now, or pay me later — just pay me, say these circus acts to the perps.

    • Bea
      04/24/2010 at 12:20 AM

      Clio, I don’t think the Skype comment relates to Henry Lee’s testimony at trial but instead the prosecution’s right to discovery (to find out what the good doctor is going to say at trial). Usually done in person, but Bernie wants the phone to be good enough. No way the judge would allow an expert witness to testify at trial via phone – in the future a video conference might be a possibility, and maybe it’s already been done, but I don’t think there’s any justification here – no reason good enough.

      • Clio
        04/24/2010 at 7:58 AM

        Thanks, Bea, for that clarification. Joe must be getting Bernie’s econo-class treatment, but, as you point out, Skype at trial would be an unprecedented, el-cheapo low.

      • Gama
        04/24/2010 at 2:51 PM

        One of Skype’s capabilities is video conferencing. When Connolly and Grimm mentioned making Lee and the others available by Skype, I assumed that’s what they meant.

        A little OT, but in the Met Opera’s recent new production of Hamlet, the Ophelia was forced to cancel just days before the premiere. The only suitable replacement was singing in Germany and could not break her engagement to attend rehearsals; her schedule did not allow her to show up until the first performance. But she was coached and rehearsed every day “transatlanticly” via Skype and stated in interviews that was what made it possible to step into the role without having physically rehearsed with the rest of the cast.

        • Bea
          04/24/2010 at 3:12 PM

          Gama, cool story. And you’re right that likely the discovery might be done via video conferencing – still, that wouldn’t be acceptable at trial.

  7. lee
    05/14/2010 at 1:51 PM

    has there been any leads to the cell phone emails? tx msgs?

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