BULLETIN: Bench Trial?

Defense forgoing Jury Trial?  3:45pm Hearing TODAY

We hoped to take a day off while jury selection was happening.  It seems like a lot happened already:

This just in from the Washington Post:

Defense in Wone case may pass on a jury trial

Defense attorneys representing the three men charged with conspiracy in the fatal stabbing of Washington attorney Robert Wone asked a D. C. Superior Court judge on Wednesday to delay jury selection in the case because they are considering having the trial heard by the judge instead of a jury.

Attorneys Bernie Grimm and David Schertler told Judge Lynn Leibovitz that they were concerned about picking a jury after the intense media coverage of the case.

Grimm and Schertler, and a team of other lawyers represent Joseph R. Price, 39, Victor J. Zaborsky, 44, and Dylan M. Ward, 39. The three men were arrested in 2008 and charged with conspiracy, obstruction of justice and tampering with evidence after Wone’s body was found in their Dupont Circle townhouse on the night of Aug. 2, 2006.  They each face a maximum of 38 years in prison if convicted.

Prosecutors are convinced that Wone was sexually assaulted and fatally stabbed after he was physically restrained by either a paralyzing drug or devices similar to those used in sadomasochistic sex. Such a device later was found in the house by police and listed in an affidavit filed in court.

After Schertler said it was a “very strong possibility” that they would prefer the bench trial, Leibovitz ordered her courtroom clerk to call the jury office in the courthouse and instructed officials there not to gather a jury pool.

The defense attorneys said they wanted more time to further discuss having a bench trial over a jury trial. Leibovitz is scheduled to hear their request Monday afternoon.

Our thanks to the Post’s Keith Alexander for filing this so quickly. 

The government may object to this move.   Judge Leibovitz MAY rule on this at the conclusion of today’s hearing.    We’ll be on hand this afternoon at Moultrie and will update ASAP.

53 comments for “BULLETIN: Bench Trial?

  1. Carolina
    05/12/2010 at 12:40 PM

    Leibovitz must be thrilled. Do you suppose they woke up last night in a cold sweat and decided this was the best strategy, or have they been planning this delay for some time? I hope it backfires, but it probably won’t.

  2. pumpkin
    05/12/2010 at 12:52 PM

    The government may object to the delay, but the decision on bench vs. jury belongs to the defense.

    I haven’t seen enough media attention to warrant a bench trial (can someone enlighten me on change of venue in DC, as it’s such a small district – would everyone pick up and move to MD or NOVA and pull a jury from there?).

    • pumpkin
      05/12/2010 at 12:53 PM

      Apologies, I’ve answered my own question – they would move out of the district.

      • Friend of Rob
        05/12/2010 at 1:13 PM

        I think this would be an EXCELLENT case to be moved out to the distant Virginia suburbs. I wonder how many trouples they have out in Winchester.

        • Eagle
          05/12/2010 at 1:40 PM

          Not to mention the hard-nosed rocket docket in the federal court in Alexandria.

        • Bea
          05/12/2010 at 1:51 PM

          Really, southern Virginia would be far better – very few subscribers of the Washingtonian!

          • Clio
            05/12/2010 at 9:54 PM

            Well Bea, Jerry Falwell’s Lynchburg does come to mind, but we really do not need the overkill of Prince Edward County, the self-styled “heart of Virginia,” which, for instance, closed its public schools for five years to prevent desegregation. Having Bernie portray the trouple as “victims” of a homophobic witchhunt, a mini-lavender scare if you will, would work only if the trial were to be moved to the culturally conservative Old Dominion. Let’s keep the circus where it is!

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

              And DC just legalized gay marriage!

  3. Friend of Rob
    05/12/2010 at 12:53 PM

    I’m sorry, but this makes absolutely no sense whatsoever. Defense strategy, so far as I can tell, is to sling enough mud to create reasonable doubt, which requires a jury to be effective. I don’t think the judge is going to give a lot of credence to the argument that these guys were targeted for prosecution because they’re gay and the MPD is full of homophobes.

    • MotherOfInvention
      05/12/2010 at 12:56 PM

      DO you think it’s just about establishing a record for appeal i.e. “We protested at the outset that we thought the jury pool was corrupted…”?

      • Friend of Rob
        05/12/2010 at 1:05 PM

        Unless I’m missing something, I don’t think they’ve ever requested a change of venue.

        • Craig
          05/12/2010 at 1:33 PM

          Change of venues in DC Superior Court criminal trial are extremely rare I’m told. Maybe it has something to do with the unique hybrid nature of the jurisdiction: Kinda local yet very federal.

  4. Bea
    05/12/2010 at 12:56 PM

    This one is a complete surprise to me. I don’t know how the courts work in DC – would Leibovitz NOT hear the bench trial? Can’t imagine the defense thinking a bench trial in front of this judge is better than a jury with all its wildcards . . .

    Unless there is some scheme in which the rotation of judges would appear to favor the defense, this is a head scratcher.

    If it’s just yet another tactic, then the Judge will not be happy.

    • Friend of Rob
      05/12/2010 at 1:07 PM

      They’re not going to get weeks to decide on whether they want a bench trial and there is no reason Judge Leibowitz wouldn’t hear the case if it were a bench trial. Even if defendants had decided on a bench trial from the beginning, they wouldn’t have had a different judge for evidentiary motions.

      • Bea
        05/12/2010 at 1:30 PM

        So there’s nothing peculiar to DC courts that makes this case slide back into a rotation or something of that ilk? Anywhere I’ve been, the same judge would hear the case (judicial economy and all that).

        Really makes me wonder if there isn’t something else in the works – as someone mentioned, a plea?

  5. plumskiter
    05/12/2010 at 12:56 PM

    I concur with Friend of Rob.

  6. CC Biggs
    05/12/2010 at 12:57 PM

    This stikes me as an odd move by the defense. Judge Leibovitz is aware of all of the disputed evidence that would be excluded from a jury. Of course she’d be expected not to consider the excluded evidence during her deliberations, but it could very well play a role in her thinking. That’s a big risk for the defense. Also, with a jury, there’s always a chance that defense counsel can persuade at least one or two jurors not to convict. A judge is less easily swayed.

    All in all, this is an odd move by the defense. Could they be stalling for time while their clients consider trying to make a plea deal?

    • dcbill
      05/12/2010 at 4:23 PM

      I agree. This seems a very risky move by the defense. Something else seems to be afoot.

  7. Bea
    05/12/2010 at 1:03 PM

    Oh, and difficulty in sitting a jury due to “intense media scrutiny” is about the funniest thing I’ve heard. Bernie, doll, ask Greta to define that terminology for you – has a single talking head put this case through the ringer? Nope? How about one of those “news” magazine shows like 20/20 or Dateline or 60 Minutes? Nope? Oh, the one big story in the ONLINE version of the Post and the recent Washingtonian article – intense media scrutiny?

  8. mw
    05/12/2010 at 1:10 PM

    This is beyond odd, it’s shocking. Just as Friend of Rob said – this is exactly the case where the defense’s best shot is to confuse the jury into an aquittal.

    I don’t know anything about the judge assigned to the case. Perhaps that judge is known as being particularly hostile to the government?

  9. AnnaZed
    05/12/2010 at 1:26 PM

    Careful what you wish for I say.

  10. TK
    05/12/2010 at 1:55 PM

    Totally bizarre; I wish we knew what was behind this. From what we’ve seen, Judge Leibovitz certainly does not seem like she would be more sympathetic to them than a jury.

    Has the Defense been considering this as an option for awhile, or did this just come up, maybe after Dylan took the stand. Since they are asking for more time, it seems like this is something new for them. Maybe someone is cracking? Have we ever learned anything about the results of Dylan’s polygraph test?

  11. Sam
    05/12/2010 at 2:00 PM

    Given the introduction of this request at the 11th hour, it seems like some kind of pre-planned strategy. I think that MotherofInvention is right — they are already thinking ahead to appeal.

    • Eagle
      05/12/2010 at 2:41 PM

      One thing- this keeps Joe Price reassured that he- Joe Price- is in control.
      He gets to pick the type of trial- even at the last minute.
      I agree. This is probably a pre-planned strategy.
      Probably easier for Joe to control one judge rather than 12 jurors.

      • Eagle
        05/12/2010 at 2:44 PM

        But-Can he continue the control of his two fellow defendants?
        My father, who was an attorney, always said that people have a way of caving on the court house steps.

      • AnnaZed
        05/12/2010 at 2:47 PM

        In his mind maybe, but Judge Leibovitz does not show any signs of being anybody’s fool that I can detect.

  12. pocohontas
    05/12/2010 at 2:11 PM

    What if one of the defendants wanted a bench trial and the others wanted a jury trial? Would this be a way to try to resurrect the motions for separate trials?

  13. Hoya Loya
    05/12/2010 at 2:18 PM

    Is Connolly in on this motion too? Was he mistakenly omitted from the article or does Victor want a jury?

    This case continues to be tried in topsy-turvy land. The right to a trial by jury is one of the fundamental rights there is. Yet here we have the possibility that the defendants would appeal for not being able to waive that right.

    Also, many of the preliminary motions (such as the exclusion of restraints) were made with the assumption that this was being tried to a jury. Would Liebovitz have ruled the same way had she known this would be a bench trial, with a judge being much less likely to misapply evidentiary standards or to be prejudiced by controversial evidence?

    • Friend of Rob
      05/12/2010 at 2:28 PM

      I don’t know that there would be any basis for denying a motion for a bench trial given that a jury hasn’t even been empaneled yet.

      • Hoya Loya
        05/12/2010 at 2:53 PM

        True — so if it will be granted, and if this is not laying grounds for appeal, what is the strategy? Reason I wonder about Victor is that, as pocohontas notes, if he wants a jury, this could be another way to sever into at least two trials.

        Or is the “intense media scrutiny” the real issue here? Though as Bea noted above, and I noted in the earlier jury thread, there has been no national coverage and even the D.C. coverage has been relatively minimal.
        Look at the UVA lacrosse murder, just for comparison.

  14. Craig
    05/12/2010 at 2:22 PM

    One skeptical case watcher opined – and I paraphrase – As if Grimm and Schertler just woke up this morning, saw Keith Alexander’s WaPo Metro section prevue piece and suddenly decided that the case has gotten “intense media coverage.”

    Maybe this has been adressed above – But could this be a way of getting Leibovitz off the case, if she indeed has to recuse herself from the bench trial since she’s ruled on admissable testimony?

    Isn’t the probability of one or two rogue jurors always high and that could be in the best interest of the defense team?

    Hopefully we’ll have some clarity around 5pm/530pm this afternoon.

    BTW: Kudos to Alexander for the scoop.

  15. Bea
    05/12/2010 at 2:57 PM

    Having “sat” on this for a bit, I do think it was pre-planned and the decision rests on what pre-trial motions they won. I don’t think they won enough to think a jury will be stumped as to what happened that night. The back up plan to request a bench trial is what they’re mulling over now – there could be histrionics about one wanting a jury and two wanting bench (or vice versa) to muck it up.

    They did clean the record for appeal in terms of NOT letting in evidence of restraints, paralytics, etc. – as someone pointed out, the Motions to Suppress/Motions in Limine are often dealt with with a broad brush in bench trials (judges being given the leeway to understand what should and shouldn’t be considered, they don’t need motions to say what’s prejudicial and what’s probative and which wins out).

    I may well be wrong but this may be the daylight between the defendants starting to show. I can’t help but think Daddy Needham has little tolerance for Daddy Joe dragging his son to prison with him, especially if he’s paying the lion’s share of the defense costs. Victor and Dylan may be without spines but Needham likely has one (and he’s not under Joe’s spell).

    Eds, was Needham there to see his son testify yesterday??

    The Blood Brothers bond might be broken if Needham tells Dyl to stop that nonsense as he calls his son in for dinner.

    What then?

  16. Carolina
    05/12/2010 at 3:01 PM

    Preponderance of opinion is that it’s all about ridding themselves of Leibovitz. If she recuses, all well and good. If she doesn’t, it’s good for appeal should she not find in favor the the Bratastics.

  17. Uncle Ernie
    05/12/2010 at 3:06 PM

    This is a HUGE development.

    Defendants who feel that they have a strong case almost never waive their right to a jury. Why? It only takes one to acquit, all 12 to convict. With a judge, it is putting all of your eggs in one basket.

    The defense is clearly on the ropes

    I predict a plea deal.

  18. srb
    05/12/2010 at 3:06 PM

    DC Rule of Crim Procedure 23 says that cases will be tried by a jury unless the court approves and the prosecution consents. Ordinarily, the prosecution would want a bench trial because judges can be better trusted to follow the law, to pay attention, and to consider only what should be considered. But if the jury trial waiver is seen as a ploy– e.g., an end-run around the denial of the motion to sever if only one or two of the defendants want to waive trial by jury–then the prosecution could just withhold consent to the waiver.

    • MotherOfInvention
      05/12/2010 at 3:16 PM

      Thanks for the clarity!

  19. Craig
    05/12/2010 at 3:27 PM

    SRB: Thanks for the quick turn-around research.

    Bea: Although totally unconfirmed, one of our guys at court this week thought it was possible Dr. Ward may have been there. The gentleman remains unidentified and this guess was based on Dylan’s ‘interactions’ with him. I wasn’t on site so I’m just passing along what I heard.

    And please everyone, no Dylan “client” jokes today.

    • MotherOfInvention
      05/12/2010 at 3:52 PM

      OK, no such jokes, but I’m curious: why? and why just today?

  20. CDinDC
    05/12/2010 at 3:58 PM

    Oh for heaven sakes….if John Hinckley can have a fair jury trial in Washington DC SURELY the defendants can have one as well.

    My partner is an attorney in the city. The only reason she knows of the case is because I read this blog daily and share the contents with her. Otherwise, she’s too busy to read the Post or listen to the evening news. When she pulls up the news on the internet, it’s to catch up on national news and not what’s happening in Dupont Circle. Not to mention, the WaPo articles were spotty over the past several years, and not everyone reads the Wasingtonian.

    I like what Uncle Ernie has to say. The defendants are scared of a jury because their case is so weak. It’s so obvious to me that they are guilty as charged.

  21. Lindsay Bluth
    05/12/2010 at 4:00 PM

    A bench trial is preferable for the defense if they feel that a jury is going to be distracted by the defendant’s lifestyle, personalities, etc. In this case the lengthy list of sex toys, the polyamory, the BDSM… it’s all a bit much for a jury to take in. The defense has a legitimate concern of getting a fair trial based on that alone.

    A judge is better at setting those prejudicial things aside and knowing what they can and cannot consider in making their ruling. A judge also knows what is and is not standard police procedure. Less wiggle room for each side.

    • MotherOfInvention
      05/12/2010 at 4:08 PM

      Well, we know that the restraints won’t be admitted as evidence, and I am assuming the rest of the sex toys are out too. And Judge Leibovitz has said that orientation is ok, but not descriptions of particular sex acts, so I don’t know that BDSM is in the picture for this trial. Polyamory is definitely in, so that may be motivating the motion in the way you suggest.

  22. AnnaZed
    05/12/2010 at 4:05 PM

    Lindsay, all that stuff has already been excluded, the jury would never hear about the BDSM stuff, though curiously enough Judge Leibovitz has certainly had an earful and eyeful of it.

  23. AnnaZed
    05/12/2010 at 4:07 PM

    I’m with Uncle Ernie, I think somebody is about to plead. I also think that somebody is Dylan Ward, and that the plea is not to murder either.

  24. Lindsay Bluth
    05/12/2010 at 4:25 PM

    If polyamory is in, that leads to questions about how that whole situation works. Then there are questions as to how Wone’s semen ended up in his own rectum if he was incapacitated. The prosecution just has to have doctors and experts get up on the stand and theorize away about what kind of equipment/methods could have achieved that and the jury would be left to their own devices. They’d be thinking, “These guys are polyamory weirdos anyway… god knows what else they were doing.” Just because something is excluded right now doesn’t mean it won’t make it into the trial.

  25. AnnaZed
    05/12/2010 at 4:27 PM

    I wouldn’t callthe blog section of the Wall Street Journal overexposure:

    http://blogs.wsj.com/law/2010/05/12/on-puncture-marks-and-proof-pregaming-the-robert-wone-trial/

    As someone eles said this matter hasn’t even shown up on TeeVee

    (why is that I wonder? CNN anyone? ~ waves “Hi, Lisa!”)

    • Bill Orange
      05/12/2010 at 4:40 PM

      I sincerely doubt that Lisa would–or even could–spike this story. I think the big issue is that no one in television wants to deal with all the complaints that would result from any reasonably balanced coverage of this story.

  26. Craig
    05/12/2010 at 4:29 PM

    Short and sweet proceedings. We have a ruling on the bench trial. Will post on it ASAP.

  27. Bill Orange
    05/12/2010 at 4:37 PM

    Not sure why everyone is reading so much into this. The “very strong possibility” that the defense may forego a jury trial sounds like a fairly run-of-the-mill stalling tactic to me. I think the defense is going to go out of its way to antagonize the judge, in the hopes that she makes a reversible error.

  28. Charl
    05/12/2010 at 4:49 PM

    Craig: you’re torturing us…

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