Fuzzy Legal Arguments, and Questions To Be Resolved
The afternoon’s portion of the status hearing began at 2:15, in an ever-so-slightly cooler courtroom.
Hopes ran to more accomplishments like what was seen in the morning. Hopes largely dashed…or at least postponed.
Leibovitz wondered about use of the word “dominant” by the government in describing Joe’s position in the family. AUSA Glenn Kirschner promised to be responsible with any discussion of the Swann Street housemate’s sexual relations.
Thomas Connolly trusted that “…Mr. Kirschner will play this straight, if you pardon the pun…” but soon it became clear he (Connolly) would prefer no mention of sexuality at all, hoping for vaguer references to “family.”
This from a man who had just described Victor Zaborsky as “…having been gay all his life, he’s not ashamed at all,” an admirable sentiment. Judge Leibovitz, not surprisingly, found Connolly’s argument weak, urging both sides to just be responsible with the sex talk. “I’m allowing ‘sexually intimate’, but we don’t need an articulation of specific…” sex preferences, please.
Carrying over from the morning, discussion moved to the trial’s logistics – number of witnesses, length of argument, set up, voie dire, etc. We will be posting these details tomorrow.
“Back to the difficult stuff…” said Judge Leibovitz, signaling a pivot to weightier issues. Those after the jump.
- Sexual assault: Rachel Liber, for the prosecution, assured the court and defense the government would not “…be addressing…” sexual assault. Bernie Grimm rose to his feet, concerned that someone might inadvertently open the door to assault questions. Would the government respond? Well, perhaps…depending on how open the door was. Grimm wondered if Dr. Lois Goslinoski would mention it. No, replied Kirschner. (Paraphrasing here:) “So if I asked her if there was any evidence of sexual assault, her answer would be no,” Grimm asked. Mmmm…not so much. In the court’s mind, such a question could open the door to discussion, and if posed to Goslinoski, Leibovitz indicated that everyone knew what her answer would be. In the end: if someone asks the DCME if there was evidence of sexual assault, she can answer yes. However, if someone asks the DCME if she has an opinion about sexual assault, that would be out of bounds. Evidence: yes; opinion, no.
- Deedrick and Spaulding methodology: we already knew of defense objections to Dr. Deedrick’s porkloin experiments; apparently late Monday they filed objections to Dr. Spaulding’s methodology as well. All agreed this was clearly past deadlines, and more deadlines, about such filings. Still, Judge Leibovitz made clear that Spaulding and especially Deedrick needed to be available for next week’s hearings on the matter. In person, by written testimony – just something for the court to hear and rule on.
Then the meat of the afternoon: statements and severance.
There are, essentially, four areas of statements that are contested by the defense…in rough order:
- video-taped statements at the Violent Crimes Branch – statements that will be offered in toto as “not for truth” but as verbal acts,
- Grand Jury testimony of Ward and Zaborsky regarding the October 2006 burglary of 1509 Swann,
- stuff the defendants said to police in their home or at VCB NOT on videotape, and
- stuff they said to other people.
Significant discussion followed – about what’s inculpatory and what isn’t, about what could be considered testimonial, about here-say and double-here-say, about the Thomas and Carpenter and Crawford and Bruton decisions, about…well are you eyes spiraling into the back of the head yet?
Apparently they were in 310 Moultrie, even for counsel. Our attempt to summarize:
Essentially the government wants to admit some statements as assertions of fact – “I was asleep” proves that the declarant was indeed at 1509 Swann before the murder. However the government also wants to introduce many other statements – including the complete video-taped testimony – as “not as fact” but rather what are called ‘verbal acts.’ These not-as-fact statements are hoped to demonstrate the defendants were lying and conspiring together. But what if the same statement contained elements of fact and not of fact? How could the jury juggle that?
This puts the government into what Leibovitz called a “trick-bag”, arguing to the jury to ‘…believe this as true, but this other stuff is lies.’ This presents not only a Jedi mind-trick for jurors, but for those statements that reference someone other than the declarant, a violation of Carpenter and the confrontation clause…and not allowed.
Moreover, argued a convincing Robert Spagnoletti, even if slim sentences could be culled out to be presented as fact, and larger statements presented in bulk not-as-fact, the cumulative effect of such repetition and redundance would prejudice a jury. Moreover, as to Grand Jury statements, any statements by Ward or Zaborsky that relate to Joe other than their own personal thoughts about the burglary would be inculpatory, and necessitate severance.
Judge Leibovitz was sympathetic, noting that Ward, perhaps, saying “I felt concern for Joe,” would be OK, while “I deferred to Joe” would be inculpatory.
Oh no. A difficult box for the prosecution to get out of. Judge Liebovitz argued for redaction. Redaction ad absurdum…describing what would be left of the Grand Jury testimony as “…two trees with no leaves.”
In the end, it was agreed the government would try to provide specific statements for ‘fact’, and then decide the issue. So first order of business Monday: motions to suppress and sever. Witnesses will be called. The outcome will strongly shape how everything else proceeds. And now…
Fade Out: Right after getting underway this morning, Judge Leibovitz repeatedly apologized for the poor air conditioning in her hearing room. She’d spoken with building management and the executive on getting the matter addressed before the long hot summer sets in. As previously noted, maybe it was the heat that caused Zaborsky counsel Tom Connolly appear as if he was going to take a dive. He regained himself [Ed note: feel better Tom] and went on, but for a moment it looked worrisome.
Perhaps it was the heat, or the mind-numbing complexity of the issues that had a similar effect on the other participants. Dylan Ward, while maybe just resting his eyes and concentrating on the proceedings, appeared to have dozed off once or twice.
And as if to confirm the complexity and length of today’s sessions, towards the end of the afternoon, Judge Leibovitz began to make a point, “At 4:00pm, double hearsay in a testimonial statement….” and then just kind of trailed off. So did we all.
Hallmark Moment: Considerable time was spent in the morning session with Leibovitz asking the government how they will characterize the nature and extent of the defendants’ sexual orientation and 3-way relationship. Kirschner was clear: nothing salacious.
But Kirschner did go to some length to say how he may frame the relationship. He’ll be using 15 emails and 2 cards from June and July 2006, correspondence between the three. Kirschner wants to establish that Price had “powers over the individuals,” and that he “shot glares” at the other two during early questioning at 1509 Swann. In short he will say:
Price established a relationship with Zaborsky and later brought Ward in to fulfill his physical needs. And that Zaborsky “was not happy according to friends and associates.” Leibovitz questioned its relevance, why did the details matter but admitted that she wasn’t “digging for a Hallmark moment.”
The Funny Bone: Leibovitz spent considerable time trying to reduce the introduction of aspects of evidence and testimony, convinced that mention of gay sexual activity would be highly prejudicial to the jury. But that didn’t stop the defense team from going for a cheap laugh or three during the day.
We’ve already referenced Tom Connolly’s pun-fun. When conferring with his defense colleagues, Cozen O’Connor’s Bernie Grimm refers to them as “conspiring.” Noticing Connolly’s near fade-out, he quipped that he hoped he didn’t catch “Bubonic Plague” from him.
While talking about his colleagues, he called them the “Grimm, Schertler and Connolly family,” and went as far to clarify his position, that no matter what Kirschner thinks, “…I’m not the dominant one.”
Bernie was really swinging for the fences towards the end of the morning session. Rising to the podium to make a point, he said, “I’ll be quick, or to use a term from this morning, restrained.”
Maybe that joke would’ve gone over better had the morning not been spent debating the introduction of sexual restraints as evidence. Or perhaps had members of the Wone family not heard it.
Grimm humor indeed.
-posted by Doug and Craig