Pre-trial Coverage – Day 1 Wrap

Plus – A Surprise Witness Tuesday

The afternoon picked up with continuation of Detective Waid’s testimony on cross by Price defense counsel Bernie Grimm.  Argument proceeded from this morning, with defense trying to establish length of time the defendants were at Violent Crimes Branch, the circumstances of their questioning, and whether they were free to leave; Grimm quickly rested.

On follow-up by Judge Leibovitz, Waid confessed surprise that Price would request to meet in the parking lot; prosecution made the case that Price (and Zaborsky) willingly requested to meet and speak again inside VCB, with defense trying – again – to raise doubt about Price’s willingness to speak.

Spagnoletti on cross of Waid worked to establish standard homicide operating procedure, trying to demonstrate the fuzzy area the defendants were in between voluntarily cooperating and being officially charged.  For purposes of the statements motion, this clearly seems the defense’s focal argument.

More – plus a promised surprise tomorrow – after the jump.

Det. Bryan Kasul was next, and his 20 years on the MPD – 15 years as detective and 10 in homicide – showed.  Of all the day’s witnesses, Kasul appeared not only the most prepared, but the most skilled at how to answer questions  from counsel (meaning: saying as little as possible.)  Cross from Grimm and Spagnoletti followed, with re-direct from Rachel Leiber Carlson in fairly short order.

A side note: as the day wore on, Judge Leibovitz began demonstrating less indulgence of counsel – notably defense.  Despite repeated pleas to not ask for testimony for “…stuff I can read,” counsel continued to push witnesses on matters of timeline of VCB interviews.  Several calls to the bench, a refusal from defense to approach, and a look of impatience from the bench followed.

The day in sum: defense keys to winning this motion are the times the videotapes began to roll, and the “parking lot” conversation with Waid.  The videotape because they hope it will establish at some point the defendants became ‘suspects’ in the MPD’s eyes, without ever being charged or read their rights.  And the “parking lot” conversation because if Joe indeed requested legal counsel and then Waid pursued further discussions, that would very likely represent a violation of Price’s 6th Amendment rights (and perhaps 5th to a degree.)  After all, once someone tells the police they want an attorney, all questioning should immediately cease until that attorney is present.  That said, a defendant is always able to over-ride that and make voluntary statements at their call.

The promised surprise: defense will call one witness tomorrow on this motion.  Dylan Ward.

Book-keeping: Leibovitz hopes to finish statements in this motion in the morning, move to motions in limine (now refined slightly) from defense to exclude burglary and EMT statements, and address matters of jury selection.  Deedrick and Spauling will get pushed to Friday – assuming the government takes Leibovitz’ strong suggestion to provide as much in writing beforehand in preparation.

Oh, and then there’s redactions.

posted by Doug, Michael, and Sean Hou

38 comments for “Pre-trial Coverage – Day 1 Wrap

  1. Bea
    05/10/2010 at 6:24 PM

    Thanks, Guys! How I envy you getting to see little Dylan speaking! Keep your ears open for hints as to how that polygraph turned out too (was either inconclusive or LIAR LIAR PANTS ON FIRE since the defense moved to exclude).

    • Nora
      05/11/2010 at 2:07 PM

      Little Dylan Has a Treat for You!

  2. Clio
    05/10/2010 at 6:57 PM

    Mr. Ward in a speaking role? Spag ought to take away the Lunesta from him tonight, if so. There should be no drinks at Halo or no tricks at the Crew Club this evening, either: Dyl has got to make the Simmons faculty and his parents proud! All massage appointments, whether incalls or out, have been rescheduled: Dyl will be exercising and reading in his room tonight before retiring early.

    • AnnaZed
      05/10/2010 at 7:29 PM

      Clio, that is humor without price measured in gold, “little Dylan” ~ beautiful. I do wonder if he’s sufficiently (and correctly) medicated and prepped for his close-up ~ Mr. DeMille, I’m ready for my close-up!

      And this:

      “…Several calls to the bench, a refusal from defense to approach, and a look of impatience from the bench followed.”

      I did not know that it was allowed to “refuse to approach,” what the hell?

      • plumskiter
        05/10/2010 at 8:32 PM

        many judges will deny requests to approach the bench, if they think the lawyers are wasting time. i predict that this judge will continue to deny such requests throughout the hearings and the trial, in keeping with her no nonsense let’s keep things moving demeanor.

        • Bea
          05/10/2010 at 8:36 PM

          Plums, it reads that the defense counsel REFUSED to approach upon the judge’s request. That’s just plain crazy.

          • plumskiter
            05/10/2010 at 9:34 PM

            you got that right. i misread. sorry.

            • AnnaZed
              05/10/2010 at 9:36 PM

              So plumskiter, is that even allowed? I have never heard of such a thing, so cheeky!

              • plumskiter
                05/10/2010 at 9:42 PM

                anyone who refuses to comply with an order of the court risks being held in contempt of court. i can’t imagine this judge would tolerate such behavior from any lawyer.

        • AnnaZed
          05/10/2010 at 8:38 PM

          I know about that; that’s why the lawyers have to ask permission, because the judge has the discretion to say yes or no, but, but, but … this says “a refusal from defense to approach” I read that to mean that the defense refused to approach, is this just a syntax problem? If not, are they allowed to do that?

          • Themis
            05/11/2010 at 5:06 PM

            The judge cannot make a party hold discussions off the record, which bench conferences usually are. To the extent that something is going to be preserved for appeal, it has be recorded.

            That said, there are prudent and imprudent (which may include the impudent) ways of resolving the matter with the court. It can be a balancing act, and without knowing what discussions and transactions are occuring at the bench, there’s no way to know on which side of the line the attorney’s behavior fell.

            Lengthy criminal trials are pressure cookers for both sides and for the court as well. At different points, every player’s conduct will fall short of the ideal.

            • AnnaZed
              05/11/2010 at 5:17 PM

              Thanks for that thoughtful explanation; more complex than it might seem on the face of it.

            • Bea
              05/11/2010 at 5:37 PM

              Hey Themis, but typically if they are trying to preserve the record, they approach and then say so – I don’t think I’ve ever seen counsel refuse to approach!

              • Themis
                05/11/2010 at 9:06 PM

                I just wonder what happened at preceding bench conferences. The defense attorneys are all very experienced. Refusing to approach the bench is generally a move that someone wet behind the ears would make. So I have to wonder if there wasn’t a strategic decision that was made.

                One of the reasons that post-conviction ineffective assistance of counsel claims so often fail is that courts give great deference to strategic decisions made by defense counsel, and that deference is at its greatest when those decisions are made in the heat of trial.

                And while you try a case to win, you preserve it like you are going to lose, outside of the presence of the jury if at all possible . . . and, hopefully, without offending the judge. But that’s in the best of all possible worlds,and Dr. Pangloss would not make a very good attorney.

            • Doug
              05/11/2010 at 6:23 PM

              Themis: good points to keep in mind as we edge closer to opening statements. -Doug, co-editor

            • plumskiter
              05/11/2010 at 8:56 PM

              unless the judge is US District Judge Joseph Young in the D. of Maryland who routinely refused to let lawyers approach the bench AND, on the rare occasions when he did allow lawyers to approach, routinely refused to have the court reporter participate and place the discussion on the record.

  3. CDinDC
    05/10/2010 at 7:19 PM

    Did Attorney Price behave like a defendant or an attorney?

    How did the 3 little piggies interact?

    Were they wearing Armani or H&M?

  4. Bill Orange
    05/10/2010 at 7:25 PM

    I’m assuming the motions to sever have not yet been heard, correct?

    • Michael
      05/10/2010 at 8:21 PM

      The motions to sever are still outstanding, but were brought up by Judge Leibovitz as important items on the schedule.

      – Michael, co-editor

  5. Hoya Loya
    05/10/2010 at 7:28 PM

    Why call Dylan? Many posters here found his statement the most credible of the three. Why seek to supress? Is it because it could be most damaging to the other two? If so, is it really in Dylan’s best interests to have it supressed?

    Maybe we should have another look at the transcript with an eye out for clues.

    Could this also be a dry run to see how he does on the stand if they need to call him at trial?

    • Bea
      05/10/2010 at 8:09 PM

      Hey Hoya, I do think the defense is genuinely considering putting the defendants on the stand during the trial – possibly because Joe insists on it (for himself) and the others are in a sense forced to follow (or risk having Joe speak for all of them). I do think this is a case where the jury may expect testimony (despite the instruction).

      As for your point about WHY the fuss about the statements, I think it’s likely related to the ease of proving they lied and thus obstructed – the time line is unequivocally set and the men did go on and on about exactly what happened. When the other bookend is evidence that there was no blood, a fake knife, and all the rest, hearing the defendants SAY they heard nothing and immediately rose and cared for Robert is important. One opinion.

      I do agree, though, that without the statements, the defendants would practically have to take the stand to present any kind of story (and thus any kind of alternate theory) to the jury.

      • Michael
        05/10/2010 at 8:28 PM

        It appears to my untrained eyes that Dylan is being called to describe his perception of his interview at the Violent Crimes Unit. The defense attorneys repeatedly questioned Detective Kasul’s statement that the interviews were generally non-confrontational. Since today’s hearing focused on Miranda, the defense is doing their best to demonstrate that the defendants felt they were in custody and therefore required to answer questions (in a locked room for several hours, videotaped, etc.)…my observation.

        – Michael, co-editor

        • AnnaZed
          05/10/2010 at 9:04 PM

          Well, frankly when I read the transcript of Dylan’s interview I actually thought that of the three he did have a case (the only one mind you) that his rights were not protected. He did ask about a lawyer (more than once I think) and got that “what do you need a lawyer for if you’re not hiding anything?” answer (straight from TV, where was Vincent D’Onofrio?). All this when he was very obviously being questioned as a suspect. He told them straight out that he was confused and wanted counsel. So, probably that is what he will say tomorrow. If the judge allows his statements to be excluded I wouldn’t be surprised.

          Joe and Victor, not so much. During his two interviews Joe seems to do everything in his power to throw away any chance of the police even offering to call anyone for him. So mightily was he straining to keep what he thought was control of the conversation while he bloviated and wove and wove his crazy tangled web of lies that he just threw away that protection himself. Victor actually repeats the words about being there voluntarily and in any case he’s dropped his motion to have his statements excluded (right?).

          If I have this right, Dylan didn’t do either of these things; that is gas on and on about himself and the mise-en-scène at Swann Street (like Joe) or demurely verify that he was answering questions of his own volition (like Victor).

          One for all, all for one?

          Not in this case I don’t think. Maybe this is the beginning of our seeing a sliver of daylight between these defendants. The trial could progress in such a way (is highly likely to progress in such a way) that the statements will be central to the government’s conspiracy case. Dylan’s counsel is quite right to put him up there tomorrow if he has to (to get those statements quashed but good). Then when the going gets rough he can tell the jury that the other two lied, but not his client.

          I am in favor of getting convictions in this case, but not by reversible or underhanded method. If this judge thinks Dylan wasn’t properly mirandized then so be it.

        • Hoya Loya
          05/10/2010 at 9:05 PM

          I agree as to why – his interview was the most hostile. But Victor’s statement is already in, is it not? Wasn’t the motion to supress it withdrawn? So why not let Dylan’s more credible statement in also?

          Bea — good point. Never thought of Joe’s decision to testify forcing the others’ hands.

          • Bea
            05/10/2010 at 11:10 PM

            Victor’s is definitely in – withdrew Motion to Suppress.

            No way will lawyer Joe’s being suppressed what with all the “my lawyer will be angry for talking to you guys” crap.

            But interesting – if Dylan’s IS suppressed, won’t the jury just think he’s the likely murderer?

    • Bill Orange
      05/10/2010 at 9:45 PM

      I just assumed that thy wanted to suppress as much as they could, because part of the charge is that he lied to the police. If his statement to the police is thrown out, then he’s basically free and clear with respect to the allegation that he lied to the police, no?

      • Bill Orange
        05/10/2010 at 9:46 PM

        Sigh. “thy” should be “they”.

        • Bea
          05/10/2010 at 11:12 PM

          There’s more to the charges re obstruction, tampering, conspiracy than what his TAPED interview stated. The cops can all testify as to what he said.

          • AnnaZed
            05/10/2010 at 11:28 PM

            Bea, do they ever get to play those taped interviews for the jury in cases like this? Lord knows there are enough of them on TV. I can’t imagine that Joe would come off very well in this instance, the transcripts are bad enough.

            • Bea
              05/11/2010 at 1:37 AM

              The prosecution is trying to get to do so, but I don’t think it’s been decided yet (will come after this motion to suppress Joe’s and Dylan’s in their entirety – Victor gave up because it was clear he’d lose).

  6. BenFranklin
    05/10/2010 at 8:08 PM

    Ward’s pre-trial appearance could be very interesting. Will he stay on point for the motion or will he render everything moot with a mea maxima culpa?

    • Doug
      05/10/2010 at 10:38 PM

      What would your theories predict?
      -Doug, co-editor

      • BenFranklin
        05/11/2010 at 10:30 AM

        Ward’s appearance will likely attempt to nail both his suppression & severance. It’s that important & both are indicated–opening the door for truth.

        • Eagle
          05/11/2010 at 11:36 AM

          Spare me

    • Clio
      05/10/2010 at 10:55 PM

      “You’ve got to climb Mount Everest to reach the Valley of the Dolls. It’s a brutal climb to reach that peak. You stand there, waiting for the rush of exhilaration but it doesn’t come. You’re alone, and the feeling of loneliness is overpowering.”

  7. former crackho
    05/11/2010 at 12:07 PM

    “I didn’t have dough handed to me because of my good cheekbones, I had to earn it.”

    • former crackho
      05/11/2010 at 12:11 PM

      Ooops – in response to Clio’s Valley of the Dolls. I’d just love to hear Dylan channel Neely.

      • Clio
        05/11/2010 at 8:38 PM

        Oh, FCH, but Dyl did have good cheekbones and dough handed to him on a silver platter, and he blew every opportunity (and, perhaps, anyone who would give him the time of day) that he had. Now, on the eve of 40, he may have to hustle big time as his looks may no longer be as appropriate (as in the last decade) for his current chosen “vocation.”

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