Pre-trial Coverage – Day 2 Morning

All about Miranda

UPDATE 3:45pm Tuesday: Judge Leibovitz denies motions to sever; allows introduction of videotapes and statements as not-as-fact except for very brief excerpts for fact.  More coming.

Statements continued as the issue of the day, and as expected Dylan Ward took the stand this morning, first questioned by Robert Spagnoletti.  The thrust of his questioning centered on Ward’s perception of the “custodial atmosphere” created by the police at 1509 Swann, and later at the Violent Crimes Branch.

As was the case Monday, defense counsel offered the following to substantiate their case: that the housemates were “told” to sit, that Ward was told to leave the bathroom door open, that he was escorted by an MPD officer when he got dressed, that he was transported in a marked police car with a cage divider, that he was questioned and repeatedly left in a locked interview room for hours, and that he was taken to an FBI facility for additional questioning and a polygraph test.

Cross next…after crossing the jump.

Next was a confident Glenn Kirschner, working to rebut Ward’s claims.  Points made included that when Ward used bathroom with the door open he really could not be observed by the officer, that when asked to get a robe for Joe Price (who was on his phone in his underwear and not engaged with the officers) he went up to the third floor unescorted, that he was permitted to use the bathroom at the VCU, offered food and water, and even asked for magazines while waiting.  The kicker:  while at the FBI, Ward signed a Miranda waiver and another for the poly.

Asked by Kirschner, Ward admitted neither he nor the others were frisked, cuffed, or physically coerced into going to VCU.

Appearing calm with Spagnoletti, Ward seemed to grow somewhat defensive and confrontational under Kirschner’s strong cross.

While no more witnesses may come (the defense may call one of the MPD back), no ruling on statements is expected today.  Judge Lynn Leibovitz asked both sides to provide citations for their arguments in advance of her ruling.

The court comes back in session this afternoon.  We’ll be there.

posted by Michael

28 comments for “Pre-trial Coverage – Day 2 Morning

  1. Bea
    05/11/2010 at 2:56 PM

    Dylan signed a Miranda WAIVER? Duh.

    • CDinDC
      05/11/2010 at 3:16 PM

      “signed a Miranda waiver” [in my best forrest gump voice] Stupid is as stupid does.

      “Ward seemed to grow somewhat defensive and confrontation [sic]under Kirschner’s strong cross.”

      Love it. Maybe we’ll see a “A Few Good Men”/Col. Jessup moment during the trial if the defendants take the stand. “Yooouuuu can’t haaandle the truuuth.”

  2. Eagle
    05/11/2010 at 4:48 PM

    Can someone please explain what admitted as “not as fact” means?
    and …”except for very brief excerpts as fact”?

    • Ernesto_Chimichangas_Miranda
      05/11/2010 at 5:00 PM

      Statements admitted in evidence “not as fact” are usually introduced as evidence of “verbal acts.” As an example, a mobster’s taped statement “Don Corleone, I promise to live by the code of the Mafia” could be introduced as evidence that he had sworn an oath of allegiance and obedience to a criminal organization. Other “verbal acts” might include conspiring, agreeing, disagreeing, lying, and obstructing…among many, many others.

    • rk
      05/11/2010 at 5:48 PM

      “Not as fact” is generally a defense to hearsay. If a statement is admitted “not as fact” it is being admitted to prove that the statement was said, not that such statement is true. For example, if I yell “I am Superman” in a room, John Doe can testify that I yelled “I am Superman” not as fact. John Doe’s testimony isn’t to prove that I am really Superman, but that I made the statement.

      At least that’s what I recall from evidence class about 12 years ago….

      The other statements introduced “as fact” will be used to prove that the statement made was in fact true. For example, if Joe says “I’m here voluntarily”, then the prosecution can use to to prove that yes, Joe was there voluntarily.

    • Bill Orange
      05/11/2010 at 6:50 PM

      The whole “not as fact” nonsense seems pretty silly to me. The prosecution is charging all three of them with being big fat liars. It seems like a given to me that the prosecution considers their statements to be “not as fact”.

      • rk
        05/11/2010 at 6:59 PM

        In general, but the prosectution wants to show as fact that they were answering questions voluntarily.

    • AnnaZed
      05/11/2010 at 9:05 PM

      I was wondering if the “not as fact” part was some sort of judicial humor.

      • Ernesto_Chimichangas_Miranda
        05/12/2010 at 1:12 PM

        Sadly, no. There is no such thing as judicial humor. 🙁

  3. Bea
    05/11/2010 at 5:02 PM

    Denial of Motion to Sever; Allowing Statements (most, anyway): wow!

  4. Anon. in Arlington
    05/11/2010 at 5:47 PM

    Posted to the Washington Post’s website today at 3:20 p.m.:

    “Killing of prominent D.C. attorney may go unpunished”

    • Eagle
      05/11/2010 at 6:21 PM

      The reporter must have interviewed the defense attorneys
      It’s not over till its over.

      • CDinDC
        05/11/2010 at 7:58 PM

        sounds like it, Eagle. Even here, when the defense would file a motion or make a statement about evidence, etc., people would react as if what the defense said was the “truth.” I saw it happen many times. It’s the defense attorneys job to refute evidence. Doesn’t mean it’s the gospel.

    • BadShoes
      05/11/2010 at 7:58 PM

      classic attention-grabbing, get the reader all riled up, headline.

      The lead “It is possible…” is certainly true.

      The Post doesn’t say “it is possible that no one will ever be punished for covering up the murder of Robert Wone,” which is the crime with which, as the article says, the defendants have been charged. Of course, it is possible that the defendants will be acquitted of those charges as well.

      The substance of the Post article is pretty much a recap.

      • Clio
        05/11/2010 at 9:04 PM

        Thank Zeus for this blog, given that kind of recycled tripe. Kay Graham would not have been amused!

        • Eagle
          05/11/2010 at 9:22 PM

          The article says the writer is a staff writer.
          I guess they forgot to say he is a legal analyst.
          You will note that the reporter has no quotes to back up his opinions.
          Oh, well. At least the Post is reporting the story- though judgmentally.
          I just do not want the public to be discouraged.
          After the Washingtonian article, my friends and acquaintances were
          appalled at whole scene. They had no idea of the depth of this tragedy and stated that they did not get the same picture from previous Post reports.

  5. former crackho
    05/11/2010 at 5:49 PM

    Well, he ain’t the smartest Ho up on the housetop, that’s for sure…

    • Eagle
      05/11/2010 at 6:17 PM

      Who is not the smartest?

      • CDinDC
        05/11/2010 at 7:59 PM

        Eagle, I think FCH was referring to Dylan signing a waiver.

        • Eagle
          05/11/2010 at 8:53 PM

          Well, that seems to fit. Thanks

          • Clio
            05/11/2010 at 10:02 PM

            And, here I had thought that Dyl preferred “custodial atmospheres,” having gone from the care of one Big Daddy to another.

  6. Bill Orange
    05/11/2010 at 6:47 PM

    I’m curious what the lawyers think about the lawyering from Team Zaborsky. It seems like they should have been able to win their motion to sever from the other two, because Zaborsky has a fairly plausible defense, namely that Price and Ward were BDSM enthusiasts who, for whatever reason, killed Robert Wone together, cleaned up the crime scene, and then woke Zaborsky up and made him think there was intruder in the home. By all accounts, Zaborsky had no interest in either BDSM or in Robert Wone. (Frankly, I’ve always thought it was a little rude that Zaborsky didn’t even come downstairs to say hello when Wone got there.) His best defense is, “Look, I’m not really sure what happened that night. I just know that I wasn’t involved.”

    So here’s my question for the lawyers: The judge has already ruled that most of the BDSM stuff is out. Couldn’t Team Zaborsky have argued that all of the BDSM stuff is critical for his defense, since his best argument is that even if Price and Ward are creeps, but he (Zaborsky) isn’t? And wouldn’t that mean that the judge would HAVE to sever Zaborsky from the other two, so that he (Zaborsky) could present this theory to the jury?

    • CC Biggs
      05/11/2010 at 7:13 PM

      Zaborsky would only make that argument if he is willing to sell out the other two defendants. The housemates have argued that the S&M stuff is totally, absolutely irrelevant to Robert’s death (which was the result of an intruder, dammit!). The severance argument you are suggesting for Zaborsky would force him to dramatically change his tune.

    • Bea
      05/11/2010 at 7:14 PM

      Bill, I understand your point, but I don’t think Zaborsky will allow his counsel to toss the other under the bus (re BDSM) or he’d have cut a deal by now. Because the charges are conspiracy/obstruction/tampering, he’s likely guilty since he’s been a part of the misleading and stonewalling (if not the clean-up or tampering). He’d have to tell the prosecutor all of what he knows to get the deal, and apparently he’d rather spend time in prison than let Joe/Dylan face the justice they deserve for whatever hand they had in Robert Wone’s murder. My opinion.

      • Bill Orange
        05/11/2010 at 7:30 PM

        I think he probably could have threaded the needle here. The prosecution thinks that someone killed Wone, and then the three of them cleaned up the body, switched the knives, and called 911. Zaborsky could have easily argued that EITHER Wone was killed by an intruder, OR Price and Ward did it alone and woke Zaborsky up when the clean-up was finished. In any case, he’d want to introduce Price and Ward’s interest in BDSM to bolster theory #2, which the judge has ALREADY RULED he cannot do. Hence, he needs to sever his trial from Price and Ward’s.

        I don’t really see this as Zaborsky throwing Price and Ward under the bus. His lawyers wouldn’t even need to use this as his actual defense. They could simply present it to the judge as a legal strategy that they were considering, and it seems like she’d be obligated to grant Zaborsky’s motion to sever.


        • Bea
          05/11/2010 at 7:36 PM

          Perhaps if this were a murder trial. But the BDSM doesn’t have much to do with conspiracy (etc.) charges. But more than anything, I suspect Victor is simply NOT going to do anything that Joe disagrees with, even if that means Victor goes to prison. I agree that if ANY of them deserved a separate trial it was Victor, but he’s in too deep now is my guess. All for one and one for all – until they’re in prison that is. Even then, he won’t be free if ANYTHING comes out during/after trial which supports murder charges. If, for example, it turns out that Michael Price gets busted for major drug charges and tells what he knows about the murder, then it’s still possible to charge them all over again – and Victor among them (and if not for murder or conspiracy to commit murder, then for accessory to murder).

        • plumskiter
          05/11/2010 at 7:37 PM

          to respond to one of your first questions – if victor were going to present a defense that was incriminating to one or both co-defendants (& there is no indication that he intends to do so), he would not get a severance. a defense that places blame on other defendants is all part of the “search for the truth”.

  7. Clio
    05/11/2010 at 8:55 PM

    Finally, two big wins today for the government are secured, after that treacherous Cinco de Mayo! The AC must be working again. Thanks, Lynn and Glenn!

    Editors, how was Dyl’s voice? Dulcet and dreamy, or high-pitched and edgy?

    Mr. Ward signs not one but two waivers at Anacostia: why then is Spag wasting everyone’s time?

    How is a “witness” to be transported in the wee hours of the morning? A police car with a divider? Duh!

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