A Clearer Picture of What Will Make It To Trial
We’re filing at the 1pm lunch break during today’s status hearing. It’s a day of all business.
You know the trial is nearing as the number of attorneys present multiplies; nine today in all introduced at the start of proceedings at 9:45am.
What’s in, and what’s out:
xylenes are out – the defense’s motion to exclude denied as moot, seeing the government has already said it doesn’t intend to introduce.
The New Yorker, and books found at 1509 are out – again, the defense’s motion to exclude their introduction denied as moot, as today the government said they did not intend to introduce.
Defendant’s sexual histories and orientation: the government is seeking to introduce approximately 15-20 emails, and perhaps half a dozen letters, between and among the defendants to give a “…more specific flavor to the nature of their relationship…” that a “…cold recitation doesn’t,” according to AUSA Glenn Kirschner. The defense had sought to exclude all of these. Key to these is the “…salacious…inflammatory…intimate…” nature of some of those notes. After nearly 1/2 hour of discussion, Judge Leibovitz allowed the notes and emails – as long as all the sex talk was redacted – and also signaled a willingness to allow discussion of the defendant’s unique relationship, beyond just who was sleeping with who, but what the power and familial relationships were like. Again, just as long as everyone skips the tawdry stuff.
Padded restraints and the testimony of S&M “expert” James Plante is out. Much of the questioning from Leibovitz struck to who would testify for the prosecution on signs of restraint – and what kind. Kirschner responded throughout noting the expected testimony of Lois Goslinoski and Maryland Chief Medical Examiner Dr. David Fowler would speak to a lack of evidence strongly suggesting incapacitation, but that no-one could say exactly what kind as no trace evidence could be found. “This is a dramatically different case than any of us have ever dealt with,” Kirschner noted, in a nod to his lack of evidence. But given the dramatically inflammatory nature of padded restraints – “worse than rope,” Leibovitz offered, “…as there’s really only one thing they’re used for…” the restraints are out.
More after the jump:
Defense’s motion to exclude evidence of burglary of 1509 – denied. Judge Leibovitz seemed fairly clear in her reading of Patrick Martin’s case that the Trouple’s actions not to report the October 30 burglary by Michael Price shows their “state of mind” – and that evidence of such state of mind then is relevant to a potentially similar state of mind in August.
What’s almost out: Thomas Connolly. Reeling in the unusually hot and stuff courtroom of 310 Moultrie, Mr. Connolly began to stammer, pause, step back from the podium and even appear to wobble on his legs. A recess of 15 minutes allowed him the chance to find his feet, and everyone else a bit of fresh air.
The Government’s motion to exclude certain expert testimony – notably that of Dr. Farzad Najam: denied. Judge Leibovitz needled Patrick Martin for failing to proffer any expert basis for denying Dr. Najam’s expected testimony that a single stab, resulting in cardiac tamponade, could have rendered Robert immediately incapacitated. “What do you have to show me that it’s speculation or unfounded?”, she asked; “what do you have for me as the gatekeeper?” Nothing workable apparently. Dr. Najam is in.
Last for the morning, a biggie: motions to exclude or limit evidence of crime scene blood, Robert Spaulding’s blood pattern testimony, and the subsequent stabbing “experiments” by government witnesses. We’ll put more substance on this later tonight – for now, any expert testimony (the three retired mobile crime scene analysts) regarding a lack of external blood evidence is out, specific testimony by Dr. Spaulding on blood spatter patterns is in.
To be determined: the experiments. Followed by statements, motions to sever, and much more. Including a misstep by Bernie Grimm.
Tune in later today…
-the Editors
Thanks so very much, guys!!
While it’s hard to “lose” any, many are of the nature of ‘gimmes’ – a game played by both sides. It appears to me that the most important rulings are leaning toward the prosecution. The ‘burglary’ and state of mind relating to is is HUGE.
I felt the exact opposite. Seemed like the big wins were all going to the defendants. Restraints evidence – out ; evidence re: lack of external blood evidence – out; defense quack re: single-stab death – in.
The most damning evidence, the knife itself, is in.
This evidence is crucial. The knife found couldn’t have been the knife used. The knife found was too long. I hope they concentrate on this. And the lack of evidence that a unknown intruder entered the house. That’s in, as well.
Not having the retraints “evidence” doesn’t matter to me, because I don’t think physical restraints were used. I think Robert was drugged but, unfortunately, the drugs could not be traced in that last remaining blood sample.
But all in all, there is plenty of “evidence” showing that the murder of Robert Wone was an inside job.
The only thing of note so far is the restraints. That was a must-win for the defense. The motions to sever are must-wins for the prosecution.
I think the jury selection is going to be interesting. I think that anyone who’s gay or lesbian–or has close ties to the gay and lesbian community–is going to end up being excluded from the jury pool, because they will have heard about this case already. Not sure how much (if at all) that’s going to skew the jury, but voir dire should be fun to watch.
Why is the motion to sever a must-win for the prosecution?
Because if the prosecution loses that, each one of the three gets a separate trial, and each defendant can blame everything on the other two.
No way the judge grants motion to sever. This is a conspiracy trial. By its very nature, the trial involves conduct involving multiple persons. The defendants will be tried together, in a single case.
Seems to me any evidence pointing to the fact that the crime scene was askew is more important than how the murder was committed. Evidence, lack thereof, of an intruder. Time frames pointing to the impossibility of an intruder entering, committing a crime and exiting. Evidence tampering such as the knife adn towel. Inconsistences in there stories (i.e. how many towels were used). Seems that these things would convict them of the charges at hand. I’m afraid if they stray too far away from the charges they’ll give the jury reason to acquit. This is not a murder trial. I can see why the restraints would be “out.” And the xylene, etc. They have nothing to do with tampering and everything to do with murder.
There is no statute of limitations on murder. Baby steps. Get them for this. Then haul them all in on murder charges. Then maybe the choir will begin to sing.
there = their
Brilliantly summed up. Get what can be gotten now and look for someone to trip up in the aftermath.
CDinDC is right–the prosecution needs to focus on the evidence relevant to the charges. The knife and towels are pretty powerful as well as the whole timeline and screaming business. Maybe I have missed it, but what’s the maximum sentence the defendants could receive if convicted on all counts? Does anyone see a possibility for a plea bargain?
My guess is that the prosecution would only accept a plea if it involves fingering the murderer. There’s not much incentive to let the defendants cop to, say, evidence tampering, if it doesn’t lead to closure on the murder.
Agree that the leaner this case is, the better.
Thanks guys… must admit my heart was racing as I read this. After so long, and all of us following this trial, suddenly things are moving fast. And there was so much at stake today.
CDinDC: Re the knife: I’m still not clear on how the knife at the scene could be shown to not be the murder weapon because it was too long. Couldn’t he have been stabbed and the knife not gone in all the way? I could see it being proven if the knife at the scene was too SHORT.
I think the idea is that a forceful stabbing will typically go to the hilt of the knife. In this case, the three stab wounds were all about the same depth, which supports this idea.
Unlike CDinDC, I have very low expectations for the physical evidence in this trial. Most of the evidence at the crime scene was hopelessly tainted. The defense’s (defenses’?) expert witnesses are going to be able to cast doubt on just about all of the physical evidence. I think that the trial is going to come down to whether or not the jury believes the statements that the three defendants gave to the police.
Most? The only evidence that was arguably tainted were stains to which Ashley’s Reagent was applied before being confirmed as blood stains. The actual weapon is likely missing. The knife found at the scene, the towel and the body were not “tainted,” unless it was by the person or persons covering up the murder.
It would be malpractice for the defense not to present experts. That it will do so does not mean that they will necessarily be more convincing than the experts presented by the government.
It was a sudden, unexpected, stunningly forceful stabbing. Wone may have been lying down or asleep with his body acting like a sponge to hold his blood internally. Any documents or opinions with Miss G posing as a qualified ME will be easily discredited by genuine defense experts & simple logic.
Videos of the defendants’ interrogations will be shown to the jury; if they appear likable & seem credible in the videos, ACQUITTAL!
Ah yes, the overfamiliar mantra.
What I find curious is that the defense attacks the work of the police, ME and government experts to try to establish doubt about the defendants’ guilt. Ben uses the same tactics to argue for the guilt of the Lunesta zombie. If his theory is accepted as true, doesn’t it necessarily follow that the other two at the very least know of the zombie’s diminished capacity actions and are therefore guilty of conspiracy as charged?
Oh, and my two-year old daughter can sing like Lady GaGa.
Checkmate!
The other two upstairs “evidently” had not figured out that the intruder was a Lunesta® (+ Lexapro + wine + Wellbutrin) Zombie when they gave their statements to police, and the zombie had no memory of his not-fully-awake activities, perhaps until his polygraph.
Price seems to have figured it out by the next day-maybe even by the Cosi brunch, but by then the cops already started down the “come to jesus” road & Wone’s widow had surrounded herself with powerful lawyers.
Literally Price & Zaborsky were framed into this epic predicament with MPD’s malicious incompetence – which is why severance might lead to truth but will likely not ever happen.
Love Lady Gaga!
®Lunesta is a registered trademark of Sepracor, Inc.
I have thus far refrained from replying to you, but dear lord, you are tiresome, sir.
Sorry-It is tiresome to be correct all the time. Yawn!
This is not the Benjamin Franklin whom I knew: this superficial arrogance reeks more of Dr. Benjamin Rush, the Founding Father and physician who approached every case with the same argument: bleed the patient! BTW, the real Ben Franklin hated Dr. Rush for that single-minded repetition, and he put his concerns in writing.
Ben, *please* stop touching yourself. We’re at work.
TK, the blood present on the knife goes all the way up to the shank. The shank is where the handle meets the blade.
The depth of the wound is less than the length of the knife. In other words….if the wound is only 4 inches deep and the blade of the knife is 5 inches and completely covered with blood, it shows the knife was too long to be the weapon used in the stabbing.
Ah there we go, I did not remember the evidence that the blood on the knife that far. Foolish mistake, if someone were switching knives. And why anyway? That always bothred me. Your futures are at stake, move dylan’s knife set to the kitchen and problem solved
I agree, the leaner this case is, the better. Also, when will we know the status (or combination) of the jury? Will we know who else is called to the witness stand – Im on tenterhooks to see if Lisa gets called and whether she is, indeed, W-5…
Hoya – you must teach her to sing Bad Romance, it seems to go with the theme.
If Ben’s theory rings true that it was a “stunningly forceful stabbing”; then wouldn’t the inconsistency between the wound depths and knife length refute acquittal?
Shh! Please don’t startle him with facts. It will only lead to more posting.
I just started (obsessively)following this Web site after reading the Washingtonian article. Am wondering if the judge ruled on all the pending motions today and if trial is still set to go for May 10? Also, thanks to the eds for what must have been a grueling day in Moultrie!
Poor Tom — getting the vapors and all that! Did his deodorant fail as well? I trust that the air conditioning in Room 310 will be working next week, even if a relatively hot venue gives a taste of the conditions at 1509 Swann that awful night.
While a girl could hope for everything going the prosecution’s way, I keep thinking (as Hoya mentioned) that some of the side issues might have distracted the jury from the real issues.
Man arrives at 10:30; all go to bed at 11:00 (with VZ already upstairs); sleeping soundly until various ‘sounds of silence’ – chimes, grunts, go off and Victor screams sometime before 11:35.
Whoops – 911 is called at 11:49. No blood to speak of. Big Man Joe is certain there was NO time between chimes and grunts, didn’t go back to sleep, so the killer was in and out in 5 minutes.
But there’s no evidence of a clean-up by the killer. The wrong knife was left on the body – with blood dabbed on it.
And lots of extraneous strangeness – Joe “knows” killer went back over the gate; the defendants spent considerable effort on their matched -and botched (11:43) – stories even using the same words to describe “THE INTRUDER” (who uses that language); Robert has stayed there only once but THE INTRUDER manages to kill him and only him though he passed another door; neither JP or VZ are at all concerned that DW was likewise attacked. . . the list goes on.
I’ve hesitated to put this out there, but does it strike anyone weird that Dylan and Victor didn’t go charging down the stairs to catch THE INTRUDER? At least make a semblance of an effort with a lot of turning on lights and going down halfway to see if anything could be seen of him? Doesn’t pass the smell test.
Bea – yesterday Robert Spagnoletti specifically referenced the 10:30 arrival time in his discussion of statements and severance. A complicated legal argument (especially at 4:15 in the afternoon), it’s essentially that Joe’s words – he apparently is the only one to say “10:30” specifically – may only be used when speaking about Joe, but not Dylan or Victor. He warned that this ‘trick-bag’ problem, as Judge Leibovitz termed it, was likely to come up “repeatedly” during the trial.
-Doug, co-editor
It strikes me as weird, yes…
“Intruder” is police-journo english, along with “perpetrator,” “caucasian,” “apprehended,” etc. Its usage by people who are supposedly in direct peril smells (to me) like fiction.
IMHO, there are many other umm-unexpected moments in the defendant’s account. None of them are impossible, but collectively they do not pass the smell test. Here are a few:
–Mr. Zaborsky, supposedly in fear of his life, calls 911, but fails to actually ask for the police (just ambulance), or to give his address. If he really thought a murderer might be lurking downstairs, the guys with guns ought to be his top priority, no? Even when he said he was afraid to go downstairs, he is still demanding–an ambulance.
–Why did Mr. Zaborsky lead his 911 call with the intruder story? The intruder story is a conclusion based on consideration of evidence, most of which Mr. Zaborsky doesn’t yet have. By his own account, he has barely looked at the body. How can he know, at this point, that Mr. Wone hasn’t suffered some sort of freak accident or rare disease, or committed suicide? He doesn’t know (yet) the door was unlocked, and he hasn’t (yet) even seen Mr. Ward. He says he might have heard the chime, but the chime is only significant after he compares notes with Mr. Price, which supposedly hasn’t happened yet.
–Why did Mr. Zaborsky ask the 911 operator about the time?
–The idea of offering first aid to Mr. Wone didn’t occur to Mr. Zaborsky. Why not?
–After the 911 operator told Mr. Zaborsky to offer first aid, Messrs. Zaborsky and Price told the police that Mr. Zaborsky came downstairs and gave Mr. Price a towel, which he then pressed on the wound. (But the only towel in evidence was the knife towel). Other than telling Mr. Zaborsky to tell the 911 operator to hurry up, Mr. Price made no other effort to keep his supposedly dying friend alive. Unless Mr. Price knew Mr. Wone was dead, in which case, why bother?
–Dylan Ward wakes up, puts on his robe, steps out of his room, finds a) a corpse; b) Joe Price kneeling by same; and c) Victor Zaborsky having hysterics upstairs. So, he flops down on the sofa. Neither Mr. Ward nor Mr. Price can remember any specific conversation on what might have led to this state of affairs.
BTW, it is almost impossible for people who feel like they are in immediate physical danger to remain seated. The instinct to stand up and face the threat (or flee) is overpowering. Mr. Ward said he was afraid of an intruder, but not enough to even get off the sofa.
–When the EMTs arrive, Mr. Ward then returns to his room and closes the door. For a guy with an interest in literary corpses, he doesn’t have much interest in the real one that just turned up.
–Mr. Zaborsky spents much of the five or so minutes that elapse between 11:49, when he makes the call, and 11:55 or so, when the EMTs arrive, demanding that the EMTs hurry up, rather than taking any steps to actually deal with the situation. He actually starts a little tantrum (“I see nothing…”) about their non-arrival. This makes me wonder if just maybe the defendants built their “script” around the idea that it would take the Police/EMTs a long time to arrive, with DC’s supposedly crappy emergency services taking the blame for Robert Wone’s death.
–Throwing water on the steaks. People who grill several times a week ought to be able to deal with a burned steak in a way that doesn’t ruin the steak. Unless its all about explaining why the patio is wet.
–Then, there is “the best.comment.ever.” Nobody remembers nothing, but everybody remembers the spider on the light.
Great Post BadShoes!
Superb!
Wow, BadShoes, you have an enviable eagle eye! I hope the prosecution is reading this site!
thank y’all for the kind words.
The posting is largely a compilation of observations by many people who have shared their reactions to the evidence collected by the editors. Very little is original. If the posting has merit, its merit is derived from the work of many people, and the collaboration that WMRW makes possible.
Owwww, smarter than I am and modest; I am in love.
By the way, where is the stuff about the spider? I read the three transcripts, and missed it (although I was probably skimming at some points). But it is in the statements to the police?
Zappa: The spider from the affidavit turned out to be a ‘big bug’ I think. A small distinction it seems, but still a scary critter nonetheless. Big enough it appears to not have escaped the Eagle Scout’s eagle eye.
We’re going to try a post next week, before the clock strikes twelve, that will hopefully illustrate the distances and dimensions inside and out of 1509 Swann. Call it a reasonable person’s vision test.
Something stange is happening with the Comments list on the home page. This comment from Craig was posted prior to many comments that are currently below it on the list. Unless that’s because Craig is an editor, it seems that list isn’t working as intended.
Messrs. Ward and Price described the bug as appearing when they were drinking water with Robert Wone in the kitchen. Mr. Zaborsky said he was upstairs in bed at the time, and didn’t say anything about bugs.
The point of the bug story is that it creates an opportunity for the back door to become unlocked.
Mr. Price (first statement, pp. 11-12)
Price, pp. 11-12
“I was looking out the–the back door’s all glass and I looked out there’s a light in one of the tree boxes. They’re [indiscernable] and I could see something like crawling around on top of it. It looked to me like a big bug. Anyway, I walked outside and looked at it and came back in.”
(…)
Det Norris: Around what time was that?”
Mr. Price: 10:40, something. I mean, it was after Robert got there before we went upstairs.”
Dylan Ward, (p. 5):
“We talked about it being so hot in his room. It was just chitchat. And then Joe went outside for a second because he saw a spider or something on the light.”
Thanks Badshoes!
The government needs to keep its eye on the ball with regard to the statements. As much as possible needs to come in, for whatever legitimate purpose may be established. How much is in there exactly that absolutely must be offered for truth that cannot be established by other means?
Better for all or most of the statements to come in as evidence of the conspiracy than for them to be redacted beyond coherence in order to establish, e.g., that Robert arrived at 10:30.
I trust that the long, hot day and the persistent hammering away by the defense took its toll on both the prosecution and the judge so that they started to get bogged down in the “trick bag” minutiae and lost the bigger picture (something Judge Liebowitz has admirably avoided doing until now). It can happen to the best lawyers and judges and it is, of course, one of the goals of many a defense strategy. A few days for heads to clear and a quick fix to the air conditioning may change things come Monday.
you are right on hoya. as a prosecutor i experienced getting bogged down in the trick bag of minutiae and know that it can be a struggle to keep your eye on the ball, on the big picture. the worry a prosecutor always has is that one of the minute points the defense is harping on will be persuasive to one juror and therefore a prosecutor feels it has to confront and refute every little point. down that road can lie a lot of confusion for the jury, just what the defense wants. on the other hand, there is always that nagging worry that you will fail to respond to something that resonated with the jury. this is where experience, judgment and style come into play.
a couple of other thoughts.
first, the distinction that lawyers make about whether the defendant’s statements come in “for the truth” of their content or for some other purpose is, for all practical purposes, totally lost on jurors. heck, many lawyers and judges don’t even understand the distinction. (a federal judge in baltimore used to always try to explain the hearsay rule to juries – what a joke! he would ask if they understood and they would nod their heads like zombies but it was clear that neither they or the judge in question had a clue).
an old trial saw is “you can’t unring a bell”. once the jury hears it, they’ve heard it, and if your side wanted them to hear it, you are glad despite whatever incomprehensible “limiting instruction” the judge gives. the lawyers do, however, have to be careful during argument that they don’t try to make improper use of said statements.
second, all of the motions in limine and concessions by both sides about what topics are off limits means that both sides will be walking tightropes to stay within bounds and not “open the door” to topics that have been ruled off limits. “Opening the door” means that a party who has obtained a ruling prohibiting the other side from raising a certain subject (e.g. the restraints) can lose the benefit of the ruling if they themselves stray into that subject. If the objecting side gets into the prohibited subject matter, the other side is then free to present evidence on the subject too, despite the prior ruling to the contrary. the other side can then barge through the open door.
at this point, from my vantage point over a thousand miles away, it looks like there are so many topics that are off bounds that both sides will have to be very cautious about opening the door to subjects they want kept out of the trial. I predict lots of arguments at the bench about whether one side or the other has “opened the door” and frankly, some confusion about what is and is not off limits. Generally, cross examination can cover the subjects covered on direct examination, and re-direct by the government can cover subjects touched during cross. But that simple statement, like everything in the law, is subject to argument and interpretation . Stay alert to objections from the government that defense questions are “beyond the scope”, and from the defense that the prosecution’s questions on redirect are “beyond the scope”. These objections will likely prompt squabbles about what doors have been opened.
Clio, I think I liove you (sing it David Casdidy)! Your last word never fails to be the best!
Tallulah, it must be in the zeitgeist or maybe wafting through the air on this blog (I was sending love to the mods just yesterday), but I was just scrolling down to sing that very same song at Bad Shoes ~ “I think I love You!”
Bad Shoes I love you because you are so much smarter than I am. I like that in a person.
Thanks, Tallulah, and I too love David Cassidy, although Jack Cassidy was always more within my range. I must agree, though, with AZ on the judiciousness of Bad Shoes whose comments on the burned steaks alone may offset the procedural setbacks of Cinco de Mayo. In general, Glenn, I hope that you are following each and every thread, especially after yesterday’s performance!
I do wonder if Mr. Plante is ever allowed to testify in any case. Excluding him from this particular vignette does pose ironic comparisons. For instance, his expertise, however useful to a jury of conventional peers, is deemed too unsavory for this trial, but the one-stab wonder is kosher. Only in America!