Still At The Threshold

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.

Judge Leibovitz began by returning to sexual orientation – an issue all thought resolved this morning, but which apparently was left too ambiguous for the court.

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:

  1. video-taped statements at the Violent Crimes Branch – statements that will be offered in toto as “not for truth” but as verbal acts,
  2. Grand Jury testimony of Ward and Zaborsky regarding the October 2006 burglary of 1509 Swann,
  3. stuff the defendants said to police in their home or at VCB NOT on videotape, and
  4. 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…

Moultrie Musings

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

24 comments for “Still At The Threshold

  1. Carolina
    05/05/2010 at 8:22 PM

    That “lighthearted jokes” come off as utterly tasteless and totally in keeping with the defendants’ behavior. Bad on both parts.

    I suppose it would be too much to hope that someone might point out the Wone family’s lack of jocularity, and I’m ashamed to admit I’d quite like to see someone sucker punch the defense lot.

    • Lyn
      05/05/2010 at 9:19 PM

      Agreed. This is low-class and tasteless.

      • AnnaZed
        05/05/2010 at 10:01 PM

        Wow, Bernie, coming out of the gate with an astonishingly low blow. How low will he go from there? That’s shocking, really.

      • des
        05/06/2010 at 9:04 AM

        just awful.

    • Uncle Ernie
      05/06/2010 at 5:12 PM

      +1

  2. Eagle
    05/05/2010 at 8:35 PM

    This sarcasm about the evidence looks like the defense is belittling this trial as somewhat of an joke, not a serious matter.
    I’m surprised that the Judge is putting up with this disrespect for legal process..
    For the Wones, this must be a reliving of all the grief that they have handled for so long.
    It is also a slap in the face for all the friends of Robert who had such respect for him and now have to relive their own acceptance that he is no longer with us.
    I am ashamed of these lawyers . Aren’t they supposed to be agents of the court?
    I hope the common practice of the federal courts has not sunk this low.

  3. Clio
    05/05/2010 at 8:39 PM

    Mr. Grimm is no Cathy Griffin: he should schtick to even smaller rooms. Although the prospect of Tom, Bernie, and David as “family” does briefly warm the heart, the scenario of Bernie as bossy bottom would eventually drive Tom as wife and David as sidekick crazy. It wouldn’t end pretty, but then again, like a pet, an attorney reflects the “owner” of the moment!

    So, Vicki wasn’t a happy camper even then: why is s/he still married to Joe?

    Dyl dozing off in a hot room: just like that night at Swann?

    Spag’s eloquence worries me; Needham must have been extra-generous last month. That bodes ill for the prosecution, I am afraid! “This was not a good day” … for Glenn!

  4. Lyn
    05/05/2010 at 9:18 PM

    I’m afraid that this effort to ensure “fairness” during the trial is getting in the way of justice (for which ever side deserves it). For example, it defies common sense to prevent the defendants’ statements to police in a trial in which the prosecution alleges the defendants lied to police. Legalities are getting in the way of justice. That is unjust.

    • Bill Orange
      05/05/2010 at 11:55 PM

      Seconded. The videos of their statements that night are relevant in their entirety. I’m less concerned about the grand jury testimony regarding the burglary. I’ve never been convinced that had anything to do with the murder or the alleged cover up.

      • Doug
        05/06/2010 at 7:38 AM

        Bill – Correct enough on the Grand Jury statements. However, they are an important part of the prosecution’s effort, in that they want to prove the defendant’s had the ‘state of mind’ to delay reporting a crime (burglary) to protect someone they knew (Michael Price) in October, and that may mean they had the same ‘state of mind’ in August.
        -Doug, co-editor

    • des
      05/06/2010 at 9:09 AM

      maybe i’m missing something, but when you talk to the police, especially on video doesn’t one know that “your statements may be used against you in a court of law”?
      what they said is part of the evidence of the conspiracy. it’s from their own mouths. i agree 100% that it “defies common sense”.

      • MotherOfInvention
        05/07/2010 at 6:15 PM

        Well, that’s the thing, they weren’t mirandized, because they were at the police station voluntairly. I am not saying therefore their statements should be excluded, but that is their argument.

  5. AnnaZed
    05/05/2010 at 10:13 PM

    I want to express my deepest gratitude to the editors for their herculean efforts. The hot courtroom must have been hideous, Bernie’s behavior outrageous and the task of summarizing all of this information daunting. I thank you.

    I hate to be a an added torment, but can the buttons be reinstalled whereby one subscribes to subsequent thread comments at the time of making a comment? I fear that I simply won’t be able to follow the sure to be fascinating ensuing conversations without it.

    • Michael
      05/06/2010 at 2:13 AM

      AnnaZed,

      I added in a notifications check box. You should get emails notifying you of any new comments to the post. Thank you for your continued support.

      Michael, co-editor

  6. CC Biggs
    05/05/2010 at 11:33 PM

    This hearing seems like an overall loss for the prosecution. Too much evidence is getting thrown overboard. The prosecution’s case is being whittled down to very little. For example, I always viewed the evidence of restraints and S&M material to be highly probative in this case in light of the manner in which Robert died. Excluding this evidence is a big win for the defense.

    • Bill Orange
      05/06/2010 at 12:00 AM

      I’m not so sure. I think we need to wait for opening statements to hear the prosecutions theory of the crime.

      • Bill Orange
        05/06/2010 at 12:07 AM

        Er, make that “prosecution’s”.

    • Bea
      05/06/2010 at 12:41 AM

      Hi CC, the reality is that the trial isn’t about ‘the manner in which Robert died’ – it’s conspiracy/obstruction/tampering this go-round. Agree that it’s critical for the murder trial.

  7. John Grisham
    05/06/2010 at 12:25 AM

    Sickening to watch injustice unfold.

  8. Observer
    05/06/2010 at 2:15 AM

    We can hope that the prosecutors were expecting some of these developments to happen and have prepared their case accordingly.

  9. Alice
    05/06/2010 at 9:15 AM

    I have a legal question, since the trial will be starting soon, when do they choose a jury? My limited knowledge of jury selection is from TV and movies.

    • David
      05/06/2010 at 9:50 AM

      Jury selection is currently slated to begin on May 12th. Opening Arguments are slated to begin on May 17th.

      • Alice
        05/06/2010 at 9:56 AM

        Thanks!

  10. Clio
    05/06/2010 at 8:46 PM

    Why would the word “dominant” be considered risque or inappropriate here? These kinds of semantical skirmishes merely hamstring the government and its witnesses from “telling the truth, the whole truth, and nothing but the truth.” Indeed, while Glenn has to play it straight, Bernie gets to play “Funny Girl” with impunity. If so, please allow a snare drum in the courtroom, Lynn!

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