The Trial Takes Shape

Other than getting Judge Lynn Leibovitz’ rulings on experts and evidence from yesterday’s motions hearing, we got a clearer picture from her, the government and the defense team on what the trial’s structure will look like.

Despite the “winnowing”, when it comes to this trial’s length it’s time to stop thinking in terms of weeks, but rather months.

Judge Leibovitz marched through her plans and vision while also getting the expectations from AUSA Glenn Kirschner and the defense counsel.

Kirschner told Leibovitz his case in chief could take four to six weeks, her response was plain: “Are you kidding me?”   Dylan Ward counsel, David Schertler chimed in for the defense – three to four weeks.  Leibovitz said hoped that these morning line guesses were “overestimates on both sides of the table.”

After the jump, the Wone trial by the numbers.

Remaining business to be worked out next week includes the pending motions; primarily use of defendant statements from the night of the murder and the Ward & Zaborsky grand jury testimony from the burglary.  I’ll leave it to the smarter guys here to explain the impact these sets of statements have on the larger motions to sever and suppress.

Jury selection is now scheduled to begin on Wednesday, May 12 and is expected to last three days.  Opening statements are planned for Monday the 17th.  Of course, depending how things go, that could push a day or so.

For jury selection, Judge Leibovitz shared her plans on the process.  Voir dire may be conducted in the jury room behind Leibovitz’ courtroom, 310.  Space limitations dictate.  A huddle of as many as seven attorneys and a potential juror in front of the bench may be too tight.

Juror questionnaires are also being drafted and Leibovitz is soliciting proposals from both sides.  She said that the juror pool will be pre-screened for length of service, six to eight weeks. 

From the juror pool each side is allowed twelve strikes: four for each defendant and 12 for the government.  Four alternates will also be seated and strikes are allowed for them as well, three each.  Leibovitz hopes to sort through 23 jurors a day next week and have them picked by Friday, May 14.

Some time was spent yesterday discussing courtroom arrangements and seating. The Court’s public information officer is setting aside eight to ten seats for media.  The first row behind the defendants and counsel will be for paralegals and associates.  The row of six seats immediately behind the jury will remain empty.  Some seats are reserved for family.  An overflow crowd is expected; there may be extra chairs set up and a rotation system for spectators may be initiated. 

The two-month trial estimate came from Leibovitz asking both sides who how many witnesses they may call.  Kirschner estimated he’d be calling the better part of 70 witnesses, but possibly losing  a dozen.  Of those, 24 are expected to be “civilians,” most of their testimony “brief” and four “lengthy.”  Kirschner may call anywhere between 9 and 16 experts, 22-24 law enforcement officials (six lengthy), and five to 10 “others.”  He later admitted that four to six weeks for his case in chief may be “an overestimate.”

For the defense, Thomas Connolly estimated his team would call eleven experts, twelve “civilians” and clearly stated, but perhaps just a head fake, that one or more of the defendants could take the stand as well.

Leibovitz did the math.  She estimated they could conceivably get through two or three experts each day,  an estimate she called “realistic”, and hopes to simplify things for the jury in some regards.  Drawing on her years hearing medical malpractice cases, she suggested both sides come to agreement on a “glossary” of terms and the government put together a book of exhibits so each juror could have the evidence handy.

The defense will use a digital projector for their exhibits but the government will stay analog with an overhead projector and good old-fashioned mounted exhibits.  Word is that there is also room on the third floor of Moultrie; an audio feed may be sent in there to accommodate overflow.

As far as scheduling in the out weeks, Leibovitz shared the good and bad days on her current calendar.  Although she normally sets aside Friday for procedural matters, testimony will probably be heard those days.  May 19, June 8-11 and possibly July 7 appear out.  Accommodations may be made for both the Memorial Day and July Fourth holiday weekends; “…the jury will be needing a break by then,” Judge Leibovitz opined.

It is now entirely possible that this trial will conclude near the four year anniversary of Robert’s murder.   If ever there was an example of the desperate need for greasing the wheels of justice, look no further.

-posted by Craig

23 comments for “Logistics

  1. TT
    05/06/2010 at 12:19 PM

    Thank you Editors for all of your hard work! I feel so bad for Robert Wone’s family. The defendent’s lawyers behavior yesterday and now this news, that the trial will conclude near the four year anniversary. Where is the justice?

  2. TK
    05/06/2010 at 12:26 PM

    How does one qualify for a media seat? I think you guys certainly should qualify for one!

  3. BenFranklin
    05/06/2010 at 1:58 PM

    The jury pool in DC is very troubling.

    It’s a tiny little town less than 10 miles square where the culture is based on printing money, laws, and news. In 2000, only 26% of residents self-identify as non-religious. At that time, 8.1 percent of DC residents are gay or lesbian. Of these a very high percentage are already contaminated by exposure to salacious media reports.

    Seems the jury will not be sequestered, either. Nothing keeps the jury from reading this blog when they get home or on their iPhone on the way home. There is no system in place to monitor juror misconduct.

    I expect a perverse verdict.

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

      It’s an impartial jury of their peers, which is exactly what they are entitled to under the 6th Amendment. The system isn’t perfect, but then again, in many less advanced countries, these guys would have been drawn and quartered by now. During the trial, the witnesses will give their testimony, the physical evidence will be admitted, the judge will make rulings and give instructions to the jury, and a verdict will be reached. We will never know the real truth, so we must accept that an incomplete story is the best we can do nearly 4 years after the fact.

      In the end, nothing that goes on in that courtroom will bring young Mr. Wone back to life. But our system of justice will have worked, as it has for 235 years, and we will live with the result. The outcome may be perverse to some, incomplete to others, but it will be the outcome, like it or not.

      • BenFranklin
        05/06/2010 at 8:05 PM

        Is our judicial system still working the way it has for 235 years? We have here at WMRW the worldwide web + mobile social media + vigilante extra-judicial forces which have never existed until now. It’s light years beyond scribes, broadsides & movable type.

        I am continually amazed how instantaneously interconnected we all are now regardless of where we live. Can any unsequestered juror really be disconnected and impartial from the influences outside world for the months required this kind of high-profile trial?

        I hope justice is not perverted by these wonderful new developments. We will see.

        • Uncle Ernie
          05/07/2010 at 2:25 PM

          In DC, as in most other jurisdictions, jurors are drawn from the ranks of registered voters. That means that they are generally civic-minded folks who will abide by the judge’s instruction that they not discuss the trial with anyone or obtain information about it from external sources. I believe that people take their role seriously and that they want to do the right thing. Are there people who might break the rules? Sure. But my guess is that is the rare exception, just as it was 200+ years ago long before the dawn of the information age.

          • Clio
            05/07/2010 at 9:01 PM

            Your guess is correct, Uncle Ernie. Dr. Rush, I mean Franklin, is once again trying to make the facts to fit his theory.

            On a related note, how are sexual details “inflammatory” a generation or two removed from the Sexual Revolution? Are jurors that dumb, juvenile, and/or gullible? I do not think so!

  4. CDinDC
    05/06/2010 at 2:09 PM

    Ben makes me laugh.

    “Tiny little town”…..I bet he knows a lot about tiny things. LOL

  5. wonewayoranother
    05/06/2010 at 3:47 PM

    Thanks for being so diligent with all of this detailed information. Being in California feels like worlds away from this and you make it so much easier to keep up with what I feel is such an important case.

    My eyes are glued to your site and will be until the verdict is in.

    • Craig
      05/06/2010 at 4:47 PM

      Thanks woneway: We neglected to mention the help provided by Sean yesterday. He’s a recent law school grad who helped us wade through ‘declarents,’ ‘not for the truth’ and a lot of other ‘law stuff’ we were grappling with during the motions arguements.

      Although studying to take the Bar later this summer, we hope he has the bandwidth to continue working with us.

      • Clio
        05/06/2010 at 8:51 PM

        Thanks, Sean! XO, Clio.

  6. anon in ny
    05/06/2010 at 4:18 PM


    as someone who knows his/her way around a court battle, what’s your read on things as they currently stand? can you give us an extended pre-game color commentary?

    thanks mucho

    • plumskiter
      05/07/2010 at 11:09 AM

      Alas, time prohibits “an extended pre-game color commentary” at present, but some random thoughts.
      1. the defense has won some big victories on their motions in limine.
      2. i think it is going to be difficult for the government to tell the story of what happened and at the same time avoid all the subjects that have been ruled out of bounds.
      3. everyone should remember that despite what may seem like extensive discovery, criminal cases are not like civil cases (at least in d.c. and the federal courts) because the government does not have to provide a witness list nor a summary of each witness’ testimony. This can get complicated, but, in brief, the government has to turn over “statements” of its witnesses – technically not until they have testified on direct (most courts require turn over at least the night before). Of course, lawyers being lawyers there is a lot of law on what constitutes a “statement” within the context of these discovery rules. The bottom line is this = the government may be planning to offer a lot of information via non-expert witness testimony that none of us have ever heard before. Something about the way this blog described the prosecutor’s handling of the last pretrial hearing makes me think we are in store for a lot of surprises, that his case consists of a lot more than the forensics and the speculation. Such surprise witness testimony could include friends or former friends or acquaintances of the defendants to whom they have made statements about the situation, for example.
      4. In many cases, the defense can do serious damage to the government’s case simply by attacking the shoddy police work. If you can’t trust the police, how can you – the jury – trust their partner, the prosecutor? This strategy can be very effective and the police gave the defense a lot to work with in this case. Couple that with the demographics of a d.c. jury – liberals and people who have been treated badly by the police, and lousy police work can equal reasonable doubt can equal not guilty.
      5. so, in summary, i predict surprises from the government, but i still think they have a tough row to hoe.
      6. the more i read, the more i am struck by all the weirdness about the water and the shower and the fire on the grill and the spider. does anyone think that the unsent message to robert’s wife was a contrivance – in that it also refers to a shower? just curious.
      7. i still think that the actual recording of victor on the 911 call is persuasive as to his innocence and real terror.
      8. i have trouble figuring out how the massive coverup people think happened – all the physical effort of cleaning up plus concocting a pretty coherent story that everyone remembers pretty well – could have taken place in such a short period of time. In my experience, even when two people have made up a false story and have had a lot of time to work on it, it usually falls apart with inconsistencies pretty quickly.

      sorry this is so rambling and disorganized. thanks for letting me express my current thoughts.

      • plumskiter
        05/07/2010 at 11:16 AM

        in re-reading what i just wrote, i realize i dropped the “statement” topic before I got to the end.

        The government may well have witnesses who did not testify in the grand jury (& thus have not given testimony under oath taken down by a court reporter). There may be police reports about what these witnesses have said, and courts and judges differ over whether those kinds of reports have to be disclosed. In some cases, no police reports are written about what witnesses say, and the only record of what they have to say is in police notes or the prosecutor’s notes. Typically the prosecutor’s notes are not discoverable. Some prosecutors deliberately avoid the creation of statements so as to prevent pretrial disclosure of witnesses’ identities and/or information. I must admit that I did this as a prosecutor on occasion. So, unlike civil cases where there are rarely any surprises (how boring!), criminal cases can have surprises – albiet fewer now than in the past as even criminal discovery has become quite extensive.

      • Eagle
        05/07/2010 at 11:44 AM

        The excessive and really irrelevant shower talk by Joseph Price at his interrogation has always bothered me. Me thinks he does discuss repairing the shower too much.
        Here his alleged friend has just been unexpectedly killed in Mr. Price’s house and Mr. Price is discussing the shower that he was allegedly fixing earlier in the evening?
        Price left the water on in the shower while he went to dinner and it overflowed? And he had to mop it up? No help from a housemate?
        Here is a guy who could well afford to call an emergency plumber.
        All the showering. Everyone is showering. Who knows when or where.
        I did not realize that there was a message about showering on the victim’s phone.
        The EMT mentioned that the body looked liked it had been cleaned up and dressed.
        Robert’s body was cold and clammy. Bodies do not lose temperature that quickly.
        I think there is something to all the water and showers and wet patio etc.
        All the shower talk could have been to explain the excess water in the second floor bathroom.
        The water on the patio is also unexplained.
        Perhaps Robert was killed in the shower or on the patio since the guest room was so clean.
        Or they tried to revive him in the shower.
        Very curious I agree.

      • Bea
        05/07/2010 at 12:36 PM

        Plums, I agree yet disagree.

        Making the MPD look bad will be a running theme of the defense, of course. And they have some screw ups to work with, but some of the rulings may work in favor of the prosecution in that having the defense repeatedly THUMP witnesses in FRONT of the jury doesn’t help the prosecution.

        One example: the Government expert who CAN’T testify about the lack of blood. The defense, while pounding on the MANY MANY government witnesses who SAW the scene have to really watch what and how they ask about the lack of blood on cross-exam or they will open the door for the prosecution.

        What is better for the jury – twenty-something people like them whose job it is to attend to crime scenes saying I DIDN’T SEE ENOUGH BLOOD, plus photographs showing a dead man on pristine bed coverings who has, essentially, BLED TO DEATH, their descriptions of the strangely quiet defendants, the hair standing up on the backs of their necks – REACTIONS THE JURY CAN FEEL AND SENSE AND UNDERSTAND VISCERALLY – or the lone Defense expert saying every bit of blood went back into the body and the guy wouldn’t have had time to react (thus no defensive wounds)?

        Jurors are regular folks. They will process things through their own life experiences. Who among us goes to sleep at night lying diagonally on top of covers which have been pulled back UNDER us and leaves but one indentation on a pillow? Who among us has ever seen blood (from the small shaving nick to a sliced finger in the kitchen to watching medical shows) and doesn’t wonder how a man could not bleed MORE than what is on that towel – even with internal bleeding, if someone is APPLYING PRESSURE to the wound, the blood would be drawn OUT making for a VERY bloody towel.

        Putting these pieces of testimony together is what the prosecution does. Kind of like Lego pieces in a pile that ends up looking like a house (sort of!) – usually the more straightforward and simpler the approach, the better off you’ll be – certainly better than trying to make a giraffe.

      • Doug
        05/07/2010 at 12:36 PM

        Plum – not random at all. Thanks very much. -Doug, co-editor

  7. Sigmund Freud
    05/06/2010 at 8:22 PM

    Sound like Ben is one of the Trouple in disguise. Perverse verdict –what’s perverse is that someone knows something and is hiding it — remember boys, karma’s a bitch! That goes for the real girl living in the house.

  8. Clio
    05/06/2010 at 8:29 PM

    Who would want to be a juror on a trial likely to drag on until Labor Day? Ugh!

    The only consolation is how much this summer-long circus will be costing Team Price. After that, of course, comes the Maryland campaigns of the civil trial. Mercedes, Mercedes, Mercedes, no more!

  9. Bea
    05/07/2010 at 2:22 PM

    This is totally off point. Sorry to all – just a warning to ignore if you don’t want a tangent in your Friday.

    Sadly, if you reread Joe Price’s statement (in particular), you’ll see a plethora of “violations” in the Statement Analysis rules (most of it appears to be lifted from FBI protocols and publications). It is fascinating that upon reread, the detectives that night were zeroing in on a few such word choices.

    Statement Analysis
    • Statement analysis is based on the idea that certain language patterns exist when people are lying versus when they are telling the truth. The following is a list of things that liars will commonly do in their statements:
    1. Use less first-person pronouns. A liar will try to distance him or herself from the lie by reducing their use of “I” and “me.” Instead they will often use third person pronouns such as “you,” “we,” “it,” “they,” “them” or even drop the pronoun altogether.
    2. Use the pronoun “that” as a distancing word’. One of the best examples of this is Bill Clinton’s infamous statement, “I did not have sexual relations with that woman, Miss Lewinsky.
    3. Shift pronouns. A liar often shifts their pronoun use. For example, they might go from “we” to “they,” say “my wife and I” instead of “we” or switch from saying “my car” to “the car.”
    4. Use more negative emotion words. Liars will use words such as hate, worthless and sad as if subconsciously expressing their guilt or anxiety.
    5. Use fewer exclusionary words. Liars have problems distinguishing between what they did and did not do and, as a result, will avoid using words such as except, but and nor.
    6. Use convincing statements such as “to tell you the truth” or “to be perfectly honest.” Use noncommittal phrases such as “I think,” “I believe,” “to the best of my knowledge” or “kind of. An analysis of Jeffery MacDonald’s statement about what he claimed happened on the night his wife and two daughter were killed showed he used 29 such phrases. MacDonald was found later found guilty of the murders.
    7. Use less cognitive words such as “understand” and “realize.”
    8. Change or use the incorrect verb tenses. Liars will often shift verb tense when telling a lie or use the incorrect verb tense. Scott Peterson made this mistake in a January 28 interview on Good Morning, America when he said, “I mean we took care of each other, very well. She was amazing.” He promptly corrected himself and added, “She is amazing.
    9. Add extraneous information. Liars feel the need to convince you of their story and will often add extra information to their stories.
    10. Change nouns to refer to the same thing. People have specific vocabularies. Any deviation from this vocabulary is a good indicator that their reality has shifted from the truth to a lie.
    11. Mix up small details. Honest people have a clear picture of what happened and will be consistent with the smaller details. Without this mental image, liars will have trouble with minor things and will not be as consistent about them.
    12. More likely to make passive statements. For example, they will say “I’m not guilty of the crime.

    • Clio
      05/07/2010 at 9:11 PM

      Bea, do these semantic symptoms of lying occur without regard to social class, education, age, race and/or gender?

      • MotherOfInvention
        05/07/2010 at 9:19 PM

        Also, people tend to look down in and off in the direction opposite to their “handedness” when contacting a “constructed” image which would include lying, at least according to this:


        Would be interesting to see what Price’s eyes were doing doing the statement. It wouldn’t prove anything, but it would be interesting.

      • Bea
        05/07/2010 at 10:31 PM

        Clio, good question. I don’t know. Mother, I would LOVE to see the videotape.

        I read the statement again and noticed that Price was checking the boxes on these left and right with just the words he used (let alone inflection, tone, or gestures). It seems the detectives pointed out that he didn’t say “I” very often (certainly that he didn’t say I DIDN’T KILL HIM, and he’s replete with the “to be perfectly honest” lingo, extraneous details galore, and loads of passive tense. Makes for an interesting read – between the “there’s is no way Dylan could have done anything” and essentially saying Michael is the bad Price brother, I would love to have a professional read this!

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