Day 7: Wrap

A Judge’s Lack of Patience and a Detective’s Hardball Tactics

The after-lunch session started off fairly stormy.  Judge Lynn Leibovitz scolded the government attorneys for nearly a half hour on their failure to make clear how they intend to present and use the defendants’ statements – for truth or not.

AUSA Rachel Carlson Lieber took the brunt of Leibovitz’ lecture.  Granted, Carlson Lieber didn’t help matters when she admitted that she simply wasn’t sure what would, and would not, be offered for truth.   This was not what the judge wanted to hear. 

“As I said, I need to know what you propose to offer, for what purpose and against whom.  Maybe I don’t have the patience to have this discussion right now.”

“What specific stuff are you offering for its truth?  This should be the subject of a conference between the government and the defense counsel.  Unless and until the defense is in a position to know how you offer them, you have to be clear.”

“Decide what your trial strategy is.  We’re two weeks into this, so put it in writing so we all know.”

This admonishment changed the line up in witnesses the government was going to call today and led to an early adjournment.  Gone was any testimony from MPD Detective Gail Russel-Brown; in her place Detective Brian Kasul took the stand.  To accompany his testimony, the videotape of his interview with Victor Zaborsky was played. 

Wow.  Full details after the jump.

Zaborsky and Kasul were seated in a similar interrogation room that hosted his co-defendants Joe Price and Dylan Ward.  The big difference between this interview and theirs was the detective’s tone, tenor and tactics. 

Kasul was in Zaborsky’s face throughout the session.  Kasul seemed 100% certain that he was not getting the truth from Zaborsky and he then turned up the heat:

“You know, you know, you know, you do know (who committed the murder)!

“You’re shaking, I’m reading your body language!  No one broke into your house. Let that go!  You will not last in DC jail.  Those boys will eat you alive. 

“Absolutely not.  That’s a 100% scientific certainty (it was not an intruder).  One of you killed him and two of you covered it up.  You’re not a killer; you don’t have what it takes to go the distance.”

Zaborsky denied Kasul’s accusations every step of the way and while his emotions showed through, he remained in control. “My life will never be the same,” Zaborsky offered.  To which Kasul shot back, “The degree of change (in your life) is what you have control over…but maybe you won’t down the road.”

Connolly picked up the stick and went on offense during his cross.  Kasul lied to Zaborsky, Connolly said; he confronted him, accused him of lying, said his housemates incriminated him, said he wouldn’t survive jail and would be left standing alone.  Kasul denied none of it.  Zaborsky was seeing crying today as his interview was being played.

Connolly’s exposure of Kasul’s “threats and lies” seemed to be plenty for the defense; neither Grimm nor Schertler took the opportunity to cross examine.

Carlson Lieber’s redirect was brief.  Referencing Kasul’s hardball tactics, she asked, “Were you testing  Zaborsky’s truth?”  “No, I was not testing, he said.  “Did you think Zaborsky was telling you the truth,” she asked Kasul.  “No I did not,” he said.

Aside from brief testimony from yet another MPD evidence tech, Charles Egan, which looked at the chain of custody on the knife (between recovery and the medical examiner’s office), that was it for the day.

The trial resumes Thursday morning at 10:00am.

133 comments for “Day 7: Wrap

  1. Aquanetta
    05/26/2010 at 5:19 PM

    So, is it me or is the judge being a bit impartial? Doesn’t look good.

    • whodoneit
      05/26/2010 at 5:23 PM

      The judge is supposed to be impartial.

      • aquanetta
        05/26/2010 at 6:11 PM

        You are correct. I meant to say partial or showing favored treatment.

        • CDinDC (Boycott BP)
          05/26/2010 at 7:58 PM

          The judge has chastized both sides.

          Seems to me she’s a very fair judge.

          • Clio
            05/26/2010 at 9:55 PM

            Unlike her immediate and dilatory predecessor, Lynn does not suffer fools gladly; ultimately, that means that Glenn and company need to step up their game, if they want to win.

            Flashes of anger — when Dyl v. Keith in the hallway or Lynn v. Rachel in the courtroom — will not determine the case, however. They are just dramatic hiccups on the long and slow road to justice.

            • Ivan
              05/27/2010 at 8:47 AM

              I hope you are right Clio

            • Jerry
              05/28/2010 at 12:55 AM

              @Clio Who is Keith in Dyl v. Keith?

              • AnnaZed
                05/28/2010 at 12:59 AM

                Keith L Alexander:

                http://www.washingtonpost.com/wp-dyn/content/article/2010/05/27/AR2010052705585.html

                from The Washington Post

                Dylan dressed him down in the hallway for failing to pay enough attention to the proceedings for his (Dylan’s) liking.

                • Jerry
                  05/28/2010 at 11:54 AM

                  The article doesn’t appear to have the name Keith within its search-able text.

                  • AnnaZed
                    05/28/2010 at 11:58 AM

                    He’s the author:

                    Expert says knife in Wone case may have been tampered with

                    By Keith L. Alexander
                    Washington Post Staff Writer
                    Friday, May 28, 2010

                    ::sigh::

                    • Jerry
                      05/28/2010 at 12:47 PM

                      Thank you!

        • slwapo
          05/26/2010 at 11:44 PM

          This is what happens when the prosecution tries a case that was totally botched by the detectives/investigators.

          • Jerry
            05/28/2010 at 12:57 PM

            I don’t think the detectives/investigators/police have totally botched the case. I think there is excellent evidence and I think the prosecution going for anything other than murder is a smart way to ware down the defendants and pick up additional information.

            The gathered evidence including the sm electrical devise that shocks its recipient as well as being inserted into the anus and cause the prostate to contract and release semen. How else could the semen of a man have ended up in his own anus. I don’t know if there was penis to anus penetration, but a condom used when penetrating the dictum would explain why Wone’s DNA evidence, and not the rapist’s and, was found in Wone’s rectum. Such a devise was found in possession of the defendants along with books giving direction for the device.

    • Hoya Loya
      05/26/2010 at 5:28 PM

      She’s right — this has been under discussion since well before the trial started. The government should have staked out its position by now and the defense has the right to know so it can proceed accordingly.

      I imagine the government lawyers won’t get much sleep tonight and better come in with answers tomorrow, if they know what’s good for them.

      • Bill Orange
        05/26/2010 at 7:16 PM

        I’m with Hoya Loya on this. I don’t understand the legal nuts and bolts of this, but everybody involved has been talking about the “for truth” issue for weeks. The prosecution should’ve had their ducks in a row on this.

    • rk
      05/26/2010 at 7:19 PM

      Over the span of a month-long trial, the judge will at one point admonish attorneys for both the prosecution and defense. If you’re thinking it looks bad now, wait until the defense puts on its case.

      Jumping to a conclusion either direction over one witness (a la Jaffe), one piece of evidence or one exhcange regarding a legal technicality is like declaring a basketball game over after a missed shot in the first minute.

      The prosecution can put on a perfect legal case (without making any procedural mistakes) and still lose, based on the weight of the evidence. Likewise, the defense can win every objection, win on evidentiary rulings, raise doubt about witnesses and evidence, and still lose on the weight of the evidence. The trial will not go perfectly for either side – if you are hoping for either an acquittal or conviction, expect some ups and downs.

      I think the comments here are at there best when analyzing evidence and fitting together pieces of the puzzle. The comments here are at their worst when posters make grandiose predictions or conclusions based on one part of a much bigger picture (e.g. the trial is over because one gov witness says she can’t say with certainty which knife was used in the murder, or the trial is over because one detective made homophobic statements). And I’m not picking on you Aquanetta, just responding to a larger frustration with following the comments here during the week!

      Kudos again to the editors for their fine reporting.

      • Aquanetta
        05/26/2010 at 7:31 PM

        RK

        Didn’t think you were and you are 100 percent correct. Just an emotional ‘type-burst’ from me. :). I just wanna see the right thing happen.

        PS – obviously I’m no attorney here, but I watch a lot of Law and Order. 🙂

        • rk
          05/26/2010 at 7:33 PM

          See post below by Ben Franklin for a perfect example of what I’m talking about.

      • Carolina
        05/27/2010 at 11:50 AM

        You have to realize this is a blog, not a newspaper or online version of a major publication, right? People are here to talk and throw out ideas. There aren’t any rules.

    • Rich Moonblatt
      05/26/2010 at 10:42 PM

      Quick Unrelated Question to Everything Already Mentiuoned.

      The answer may be buried in this blog, but, maybe, someone can float a fast response:

      Why would the defendants hang the decsion on one person (The Judge)versus a Jury of 12 people?

      Odds are better that you can convince, “One Jurist,” that they are innocent and force an acquittal.

      Seems like a bad business decsion to yield to the judge for a decision.

      Thoughts?

      • Bill Orange
        05/27/2010 at 12:07 AM

        They’re three white gay men in a relationship that’s “nontraditional” even for the gay community, and one of them tried to blame the crime on the African American man that lives in an alley. A jury trial would not have gone well for them.

        • Carolina
          05/27/2010 at 2:47 PM

          I also believe they may have thought a jury would give up on the complicated legal wrangling and just said, “hey, I can’t think of a single reason to believe them. Guilty.”

  2. KKinCA
    05/26/2010 at 5:25 PM

    Craig – what was Victor’s demeanor in court while the video was shown and while Kasul testified? And what about Joe and Dylan?

  3. Timeline
    05/26/2010 at 5:28 PM

    Reposting this from the previous thread…sorry, didn’t realize you’d posted a new one!

    From the MyFoxDC updates, there is this quote from Zaborsky’s video interview playback: “I was hysterical, I ran upstairs and got on the phone. As I was talking to the operator Joe said Robert was dead,” Zaborsky says on the tape.

    Doesn’t that contradict what we actually hear on the 911 call where he tells the operator that Robert is still breathing? I can’t find a full transcript of the 911 call and can’t listen to it at the moment, but is there a part of it where Victor hears from Joe that Robert is dead? I don’t recall that, but it’s been a few months since I actually listened to the call.

    • SavvyG
      05/26/2010 at 6:20 PM

      Google Robert Wone 911 call and you will find it. There was a gap in the call during which Victor turns away from the operators attention and there is some conversation in the background. Seems like Joe was talking to him.

      • indi
        05/26/2010 at 6:42 PM

        Maybe Joe Price was telling him what to tell? I also noticed in 911 call that the caller actually said “‘they’ stabbed him”. Why “they”? He must have been naturally honest in the beginning.

        • Tarfunk
          05/26/2010 at 7:34 PM

          I wouldn’t read too much into the “they stabbed him.” In casual English “they” is the third person singular indefinite pronoun, despite what your writing teachers tried to tell you about using “he or she”. Imagine: “Somebody came in here and stabbed him and I don’ know how they did it.” “They” isn’t necessarily plural there.

        • susan
          05/27/2010 at 1:21 AM

          If that FoxNews report is right, then why didn’t his voice change upon hearing that news, why didn’t he tell that to the operator, why didn’t he say something about not holding the towel down since there was no purpose? If you thought someone was alive when you made a call and then found out they were dead wouldn’t that register in your voice if you were speaking to someone?

    • SavvyG
      05/26/2010 at 8:55 PM

      Here’s the link to the 911 call. Interesting that he used the word “evidently” and they also called Victor “maam” several times and he never corrected her. Although he explains that his partner is tending to the victim, she keeps calling him maam and he does not correct her. To me it means he was genuinely freaked out…otherwise he might have taken a second to explain he was a man.

      http://www.washingtonpost.com/wp-dyn/content/audio/2009/05/29/AU2009052902624.html

      • Carolina
        05/26/2010 at 10:19 PM

        I’m not sure what would be the point of correcting her, except to make her aware of her mistake. It wasn’t going to make a difference in response time.

      • Clemypooh
        05/28/2010 at 4:44 PM

        SavvyG I agree with you. The fact he did not correct her really makes me think he was extremely distressed and was not just rehearsing what to say.

        • AnnaZed
          05/28/2010 at 4:52 PM

          I wouldn’t call those things mutually exclusive.

          • Jerry
            05/28/2010 at 5:24 PM

            Absolutely Anna!

        • James
          05/28/2010 at 4:55 PM

          Of course he was distressed…there was a dead body in his guest room.

      • Jerry
        05/28/2010 at 5:23 PM

        There are many gay men that sound like women on the phone. I know because as a gay man, I know many gay men. They tend to, like women who sound like men, ignore it.

  4. UT
    05/26/2010 at 5:37 PM

    What’s with the “human lie detector” line of questioning bewteen Carson Lieber and Kasul on whether Zaborsky was telling the truth? I thought this was a bright line no-go.

  5. dcbill
    05/26/2010 at 5:57 PM

    Thanks Eds. Now I understand what the judge was upset about. This doesn’t look for the prosecution. When I read that they were going to play all of the interview videos, I thought, “and then what?” Do they go back through it all and explain what they think is a lie or what proves them to be lying? Was the judge expected to just view the tapes and figure it all out for herself? I guess the prosecutors do have a long night ahead of them.

    • Clio
      05/26/2010 at 10:02 PM

      Every undergraduate essay needs a thesis or point. That axiom extends to Powerpoint presentations and video clips. Didn’t Glenn learn this at Washington and Lee? Yikes!

  6. CC Biggs
    05/26/2010 at 6:32 PM

    Think of the videotape interviews as catching the crime on film. Remember, this trial is about obstruction and conspiracy. Lying to the police is an important part of the crime. So the videotaped statements are like a security camera that catches a bank robbery in progress. The lies ARE the crime, and they’re on tape!

    • dcbill
      05/26/2010 at 6:55 PM

      Thanks CC. I get it. But at some point does the government have to say explicitly that the interviews are a pack of lies? Maybe I missed that somewhere.

      • plumskiter
        05/26/2010 at 7:36 PM

        dcbill: that is what closing arguments are for. to argue what inferences and conclusions can be made on the basis of the evidence.

      • CC Biggs
        05/26/2010 at 7:36 PM

        From the summaries of the day’s events, it seems like this issue is part of what the judge was angry about. Is the prosecution entering these statements as evidence that what they are saying is true (for example, if Price says he heard a sound at 11:30 PM, is that statement being offered to establish that Price did in fact hear a sound at 11:30 PM)?

        Or are the statements being offered NOT for their truth, but simply to establish that the defendants made these statements to the police (whether or not they are true)? If the latter, then I think it will be important for the prosecution to show that the statements were false in order to establish that the defendants told lies to the police (thus to support the prosecution’s obstruction charges).

        • Elizabeth
          05/26/2010 at 9:08 PM

          I don’t know about that. If you look at the transcript from the April 24, 2009 hearing the judge says that the prosecutions can’t use “you haven’t told us what really happened” to support a conspiracy to obstruct charge. If someone wants to tell me if I am misunderstanding this point, it is page 14 line 22 through page 55 line 4.

          • Elizabeth
            05/26/2010 at 9:09 PM

            sorry, I meant to type page 15, line 4 (not 55)

        • Passerby
          05/26/2010 at 11:21 PM

          CC Biggs, I think you’re kind of on the right track. The issue might be whether the evidence is being offered for their truth, or for another reason (e.g., to establish that the defendants made these statements or to establish the witness’s state of mind–for example, showing the video of the interrogation and then questioning the witness what was going through your mind at such and such point, why did you do XYZ, etc.; the truth of the underlying substance of the video interrogation then wouldn’t be at issue).

    • First Time Reader
      05/27/2010 at 1:07 PM

      I assume that this is the only time the defendants will speak in court. They will not testify openly so the videotapes and the 911 call constitute the evidence of what the defendants did and/or said. If the defendants lied to the police during the course of the investigation, then they are guilty of obstruction of justice. Also, it is important to remember that the police are permitted to lie (at least about certain things) when questioning a potential suspect. As the roommates are the last people to see Robert Wone alive, they are potential suspects in his murder.

      The principal lie will be whether an “intruder” was involved and, if so, whether the defendants know who the
      intruder is and lied when they said they do not know or suggested it might be a black man who lived in the alley. The additional facts that evidence that should be present (e.g., blood, fingerprints, etc.) is not there is evidence of the potential destruction of evidence. Finally, there is an e-mail that suggests that one or more of the defendants cannot give their side of the story because they would go to jail. This would seem to constitute an admission against interest since it is an out-of-court statement with no Fifth Amendment protection.

  7. BenFranklin
    05/26/2010 at 6:45 PM

    The prosecution acted on maliciously incompetent casework from the MPD. Garbage in, garbage out.

    Heads must roll for the anguish & damage inflicted on the Wone family & the defendants.

    I predict menu of boiled crow, plenty for everyone, including me.

    Bon appétit!

    • Bill
      05/26/2010 at 7:07 PM

      It’s DC — why be surprised that the MPD, like everything else, is rife with incompetence. If they can’t handle simple snow removal or HIV services — why do you think the MPD would be any different? This is great for the defense.

      • jfh
        05/26/2010 at 7:24 PM

        On a sidenote, it is really too bad about the MPD. I was talking a friend of mine, a detective in fairfax, and he was telling me that DC in fact used to be one of the best police dept in the country. unfortunately, when the crack epidemic hit DC, it devastated almost everything including the mayor and mpd.

        And, then in the late 80’s, there was a hiring push, and mpd hired a bunch of new recruits without properly doing background checks and unfortunately hired a number of convicted felons. As a result, you have years of falling apart and high levels of incompetence.

        • tassojunior
          05/26/2010 at 7:43 PM

          That’s a normal excuse as to the period when a lot of AA’s were brought in but DC has more police per capita than anywhere, more funding, on top of that has the FBI on call for pretty much any “help” they need and the US Attorney’s Office as prosecutors. With unlimited funds and unlimited resources it’s a matter of how they choose to use them. There is an large amount of corruption in MPD ranks but it’s ultimately the “white shirts” who run the show and call the shots both on the uniforms and FBI use.

          • AnnaZed
            05/27/2010 at 1:53 AM

            Wait, are you equating African Americans with felons?

            I am dumbfounded, stunned.

            • newbie
              05/27/2010 at 5:43 AM

              Relax….in DC supervisors (lieutenants, captains) wear white shirts. At a crime scene you can quickly identify who is in charge. White or black.

              • Nora
                05/27/2010 at 7:35 AM

                I don’t think AnnaZed is referencing the “white shirts” part at all, newbie. jfh wrote, “mpd hired a bunch of new recruits without properly doing background checks and unfortunately hired a number of convicted felons”, and tasso replied, “That’s a normal excuse as to the period when a lot of AA’s were brought in…”

                Excuse? Made by whom? This looks like the old yellow-journalistic ploy of dropping slurs attributed to unnamed “third parties.” Clarify if I’m wrong….

                • Carolina
                  05/27/2010 at 8:27 AM

                  Tasso has a way of misconstruing the truth. I think it’s time to Ben Franklin him.

                • AnnaZed
                  05/27/2010 at 11:13 AM

                  Thank you Nora, that was indeed my point. I’m still amazed.

                  • Carolina
                    05/27/2010 at 11:53 AM

                    He has the social ineptitude of… well, Joe.

    • rk
      05/26/2010 at 7:27 PM

      Wait, according to what you’ve posted here before, you think Dylan Ward killed Robert Wone. If that is the case, who exactly inflicted anguish and damage on the Wone family?

      And if you no longer think Dylan Ward killed Robert Wone, what do you think happened on that night?

    • Clio
      05/26/2010 at 10:30 PM

      Boiled crow? No. A menu of burned steaks, cheap wine, and tap water may be more appropriate, instead??

  8. tassojunior
    05/26/2010 at 7:13 PM

    Zaborsky was informed by an official convincingly that his housemates had already said HE did the murder and he would be ok if he told the truth. Yet he holds up (voluntarily) under hours of intense badgering in Anacostia that night by two tough detectives and never even asks for his lawyer. Price does same, Ward too.

    They’re definitely guilty of criminal stupidity for volunteering for this without counsel if nothing else. Don’t have 100% accurate story- you get 38 years. Don’t Talk- You Walk.

    • Alice
      05/26/2010 at 9:25 PM

      “They’re definitely guilty of criminal stupidity for volunteering for this without counsel if nothing else.”

      I completely agree.

      • Clio
        05/26/2010 at 10:13 PM

        I must admit that I did feel a little sisterly sympathy for Ma’am as Mr. Kasul was rather brusque and blunt in his tete-a-tete with the marketing whiz. But that sympathy vanishes abruptly once one realizes that Victor was/is probably crying for the lost empire (of status and privilege) and not for his lost “friend.”

        At any rate, at least, Victor’s segment was not soporific.

        • Elizabeth
          05/26/2010 at 10:21 PM

          Is there a transcript available to read of Kasul’s interrogation of Victor? The transcripts I read must be from a different detective

        • CDinDC (Boycott BP)
          05/26/2010 at 11:22 PM

          Yes, Clio. Ma’am’s “life will never be the same.”

        • AnnaZed
          05/27/2010 at 1:54 AM

          My sympathy for the lady of the house (not Sarah) was exhausted many months ago, fuck him and his lies.

  9. Bill Orange
    05/26/2010 at 7:14 PM

    Was there something specific that set the judge off? I can’t really understand what the underlying issue is here. It seems to me that the government should say that when these guys say their names and addresses, they’re admitting that for truth. Everything else goes into the “not for truth” category. The prosecution is arguing that the defendants’ stories are complete bullshit. What exactly are they trying to admit “for truth” that they keep getting scolded over?

    • Leo
      05/26/2010 at 7:53 PM

      I don’t understand what the fuss over what is being admitted for truth is all about, since every single videotaped interview with a defendant is an admission by a party-opponent and therefore NOT HEARSAY. The judge must be referring to something else.

      • tassojunior
        05/26/2010 at 8:08 PM

        It’s not the vids, it’s the “statements” from police admitted for truth. As Daphne and I discussed about about the “glare” “statement” as truth. The witness was probably about to get into physical “statements”.

        Telling the pros. to “Decide what your strategy is, we’re two weeks in” could mean she wants to know when the case, if any, starts.

        • Carolina
          05/26/2010 at 10:24 PM

          Wow, so you not only know the neighborhood and the inside of the Price home, but you know what was going to come out of a witness’s mouth before it was even opened?

          Astounding.

  10. DonnaH
    05/26/2010 at 8:06 PM

    I imagine the lawyers here could cast more light on this, but I’m thinking that the judge wants a very tightly-run trial in good part for the purpose of providing little if any basis for appeal. Especially since she will be the one rendering judgment, what judge would want their conclusions (whatever they be) questioned on appeal on the basis of a sloppy trial?

    • Ivan
      05/27/2010 at 8:55 AM

      True

  11. galoon
    05/26/2010 at 8:12 PM

    Where oh where are Bea and AnnaZ?

  12. Hoya Loya
    05/26/2010 at 8:16 PM

    We were told early on that Judge Liebovitz had a low tolerance for unprepared lawyers in her court. We saw proof of that today.

  13. kiki
    05/26/2010 at 8:18 PM

    Are any of the criminal defense attorneys online to shed more light on what the judge expected/wants from the prosecution?

  14. Greta
    05/26/2010 at 8:39 PM

    Have any of you been to the trial (not with a press pass)? I was thinking of going one day. Is everyone able to get in? What time does a line que? Thanks

    • Carol
      05/26/2010 at 9:00 PM

      The court room usually is full, or close to it. That said, if you get there 10 or 15 minutes beforehand, you should be able to get in. (no formal line) There’s an overflow room, but I don’t know if anyone has had to use it. I’ve been attending since last Thursday.

      • Greta
        05/26/2010 at 9:34 PM

        Thank you

      • Farmer Ginny
        05/26/2010 at 9:38 PM

        What about coming after the lunch break?

        • Carol
          05/26/2010 at 10:36 PM

          Hard to say — some days it has been more crowded in the afternoon.

  15. tassojunior
    05/26/2010 at 9:02 PM

    I think the police accidentally put in the photo they took that night of the trash can upside down by the fence. Big hurt to their case.

    • whodoneit
      05/26/2010 at 9:33 PM

      If they don’t put it in, the defense does.

    • Carolina
      05/26/2010 at 10:26 PM

      Isn’t that typical of places where there’s a rat problem? You did say there was a rat problem, didn’t you? Getting in grills and such?

  16. Tarfunk
    05/26/2010 at 9:40 PM

    New question not related to today’s events: In Victor’s first interview with the police he describes finding Dylan making up the sofa bed for Robert. He asks Dylan what he’s doing because Victor didn’t know they were having anyone over.

    Dylan says that Robert was working late and wanted to crash there rather than going home. One would think that was fine and good, right? But Victor acts as if he doesn’t believe Dylan. He says: “And then I talked to Joe and I asked Joe and he said, yes, that’s what was–Robert was coming over and they were going to have breakfast in the morning.” It seems obvious to me that Victor is saying to Joe, “Is that really what’s going on?”

    Note, the terminated sentence leading in that direction. It seems to me that if Victor couldn’t trust Dylan that this scenario was completely innocent, why should we???

    • Bill Orange
      05/26/2010 at 11:21 PM

      Not telling Victor about Robert spending the night strikes me as one of the big red flags here. The prosecution (hopefully) has a clearer idea about the timeline, because they know when Victor’s original flight was scheduled to land, and they know when the earlier flight actually got there. It’s never been clear to me if they were expecting Victor to get home at 11 or if his flight landed at 11, which would get him home at around 11:45 or midnight. The latter time tracks pretty closely with the time of the 911 call, which probably is coincidental but raised my eyebrows.

      I think Victor realized something was wrong as soon as he started talking to Dylan in the guest bedroom, and he went to Joe to confirm it. I also think that’s why he didn’t go downstairs to greet Robert when he got there. (He claims it was because he was tired, but he was watching “Project Runway”, for crying out loud!) But under this scenario, I can’t figure out what would prompt Victor to come downstairs and scream. He knew he was supposed to stay in his room with the door closed during play time, and he broke the rules. He must’ve heard something REALLY weird for that to happen.

      • deepsouth
        05/26/2010 at 11:29 PM

        Maybe he thought playtime had been cancelled since they had a guest, and then wondered why he heard an unusual, maybe even “playtime-type” sound?

        • AnnaZed
          05/27/2010 at 1:44 AM

          I think this is all quite likely. We have speculated previously that Victor had no doubt spent many a night cowering or drugging himself with sleeping pills rather than fully deal with what was going on downstairs. There is even a curious part of his interrogation when he describes someone else (Ward I think) hypothetically standing behind his closed door listening but afraid to venture forth. I think he was talking about himself.

      • Ivan
        05/27/2010 at 9:00 AM

        Interesting that everyone assumes the scream was Victor’s. It could have been from Robert.

        • Carolina
          05/27/2010 at 11:54 AM

          Go back and read the evidence, including estimated time of death. It doesn’t fit.

  17. Leonard
    05/26/2010 at 9:41 PM

    The Govt has had many months to gather and review evidence, test theories and poke holes. The case should have been made before the prosecution entered the court room. By that I mean they should have a compelling theory backed by very specific evidence that supports their arguement.

    Casting a huge net and sifting through evidence that doesn’t clearly support a well planned case shows either no staff available to do the due diligence up front or just plain laziness and bad planning. Which points does the prosecution consider important and why? Many on this blog get the point that lies and inconsistencies are a core to proving a cover up. Which lies is the govt looking to point out?

    With the job they’re doing they might just as well have dumped all of the evidence on the judge’s desk and said, “here, read this”. The judge likely comprehends that the missing blood, no signs of struggle and Wone’s semen raise questions about what really went on in that house. But, without a good supporting case from the prosecution none of that will matter and the judge will have no choice but to acquit.

    • Bill Orange
      05/26/2010 at 11:33 PM

      Maybe, but I really don’t see it that way. I think the defense team is much better at “lawyering” than the prosecution team, but I think the prosecution has a fairly strong case on the evidence. There have been several witnesses (the neighbors, the EMT, and the ER nurse) that the defense really needed to break on cross-examination, and they didn’t. Yes, the defense hasn’t presented its case yet, but they have very few options when it comes to presenting witnesses to what actually happened that night. All they’re going to be able to do is call a string of “experts” to offer their opinions of the evidence. They may make some headway on the “missing” blood and the lack of movement and defensive wounds, but not the timing of the screams and the puncture marks. And frankly, I don’t think this judge is going to have much patience for the defense’s experts, anyway. She’s quite willing to grill witnesses herself, and I think that the schtick that plays well for a jury isn’t going to go very far with her.

    • dcbill
      05/27/2010 at 12:03 AM

      Thank you Leonard. I think this is a sensible explanation of what’s going on. I don’t believe any of this domestic bliss bullshit of we were chatting in the kitchen over glasses of water, removing offensive spiders from the back porch lamp, and making up a day bed for our dear friend who is spending the night. No, what went on in that house the night of the murder is probably darker and more terrifying than most of us can comprehend. But we will likely never know the truth thanks to the inept investigation and prosecution of this case. The monsters who inhabited the Swann St. house of horrors probably will walk. And it’s a damn shame.

  18. kiki
    05/26/2010 at 10:08 PM

    Leonard,

    Are you basing your legal analysis and conclusion on experience as as criminal attorney?

  19. Leonard
    05/26/2010 at 10:24 PM

    Argumentum ad hominem.

    I respectfully decline to answer.

  20. curiousdc
    05/26/2010 at 10:30 PM

    The last round of comments re: the prosecution are so depressing. Scary to think that these ghouls will make it through the trial unscathed.

    BTW, I noticed the Price and Zaborsky still own the condo on R St. Why not sell given what must be out-of-control legal fees?

    • AnnaZed
      05/27/2010 at 1:58 AM

      I think Dylan’s dad’s money is in play here.

  21. Themis
    05/26/2010 at 10:35 PM

    Was the judge’s pretrial ruling on how the prosecution can use the statements memorialized in writing after the fact? If so, it would be helpful to see the order. Since she denied the motion to sever, there may be Bruton issues depending upon the contours of the conspiracy. Thus any ruling on when the conspiracy was deemed complete would be helpful as well. And it’s not worth discussing Bruton without the details of any applicable rulings.

    • Elizabeth
      05/26/2010 at 10:47 PM

      In a transcript the judge says a conspiracy is not deemed complete until one of the conspirators “withdraws” – which I would take to mean ‘fesses up. It also says this is an extremely complicated case because the conspiracy has lasted for years.

    • Craig
      05/26/2010 at 11:28 PM

      Themis: It was in a May 7 notice that was already amended once on the fly I think. We didn’t pull it. We’re pretty damn sick of visiting the clerk’s office by now.

      Bruton always come up on this. Crawford too maybe. The judge told the G to get it on paper.

  22. Themis
    05/26/2010 at 10:48 PM

    It takes all 12 jurors to be acquitted. Fewer than 12 is a mistrial. Which is a do over. Which generally benefits the prosecution.

    • First Time Reader
      05/27/2010 at 9:44 AM

      The case is being tried to a judge. There is no jury.

      • Carolina
        05/27/2010 at 11:56 AM

        She was making a point regarding an earlier comment that has fallen out of the threading format. She’s an attorney and knows well that it’s a bench trial.

        • First Time Reader
          05/27/2010 at 1:11 PM

          Sometimes these threads are difficult to follow, but the case itself is interesting. I applaud the editors and the individuals who comment on these threads. This is one of the most civilized and thoughtful blogs I have ever read.

          • Carolina
            05/27/2010 at 3:00 PM

            We’re civilized? Oh dear.

            Back to what I was saying, though. It seems that when we hit a certain number of sub-replies to an initial post/reply, they default to the bottom of the page, which is why Themis’s post seemed stuck out on its own. I have been blaming it on Firefox.

  23. Also from the Post Story
    05/26/2010 at 10:52 PM

    > they should have a compelling theory backed by
    > very specific evidence that supports their arguement.

    Sure, on Law & Order. Here in the real world, the facts around the murder are odd and don’t fit any compelling theory. On either side.

    That doesn’t matter. The murder is not the issue being tried. The issue is whether the defendants tampered with evidence or lied to investigators *afterward.*

    Remember, the alleged crimes on trial were committed *after* Robert was dead, and were committed inside the Anacostia police building perhaps as much as in the townhouse.

  24. Ut
    05/26/2010 at 10:52 PM

    Conspiracy is a very technical charge to try to prove. The defense must have made the call that this is more of a “lawyer’s case” and that a judge would be better postured to catch a technical hole in the government’s case that would a jury.

  25. Themis
    05/26/2010 at 10:58 PM

    The judge’s ruling has to be more extensive than that on the conspiracy/Bruton issues. The issue is too important in jointly tried conspiracy cases and one of the better issues to raise on appeal given the confrontation clause implications. This judge is nothing if not thorough.

  26. Bill Orange
    05/26/2010 at 11:06 PM

    Okay, I’m still not getting it.

    My non-lawyer impression of admitting something “for truth” versus “not for truth”, or whatever the legal term is for the other category, is this: A statement by a third party that’s admitted “for truth” is something that (a) the witness says the third party actually said AND (b) the lawyer is asserting is factually accurate. For example, “The defendant told me his name was Joe Price.”

    Something that’s admitted “not for truth” (or whatever it’s called) is something that the witness says the third party actually said, but the neither the lawyer nor the witness is making any claim about whether the statement is true or false.

    Is this more or less accurate? Because if it is, then I really don’t understand the controversy here. The names and addresses of the defendants should be admitted “for truth”. Beyond that, the prosecution is asserting that much of the rest of their statements are false. Why are they even bothering to admit anything more than this “for truth”?

    • deepsouth
      05/26/2010 at 11:21 PM

      BillOrange, plumskiter explained the “for truth” thing really well (where “really well” is “vanquished the fog in my nonlegal brain”!) on the previous thread in a post at 6:13 PM. Thanks again, plumskiter!

    • Hoya Loya
      05/26/2010 at 11:49 PM

      Yes indeed, thanks to plumskiter for taking the trouble to offer the necessary lengthy, legal explanation and saving others here the trouble.

      But Bill O. is also wondering what specific statements might be at issue. I think there are a number of statements that the prosecution would like to offer for truth (for instance, the fact that Robert arrived at 10:30 can be found only in the statements). We’ve had lively discussions here about the many contradictions between the statements and fact and also the possibility of “kernels of truth.” Similar issues probably arise with behavior observed and comments muttered in the squad cars on the way to VCB (which likely led to the scolding this afternoon).

      What I suspect the government lawyers are wrestling with right now as I write this is what kernels they want to hold the trouple to and which statements they want to hold out as obvious lies — if you think about our discussions, that’s not an easy task. Complicating this is the fact that certain statements of one defendant may implicate another if offered for truth (“that’s the last time I saw Joe” or “Dylan was downstairs the whole time”) — one of the arguments the defense had cited in favor of severance. The government must tread carefully given the judge’s decision not to sever based on the government’s representation that it would offer only very limited statements “for truth.”

      • Bill Orange
        05/27/2010 at 12:18 AM

        I still don’t see the problem. There are other witnesses to say when Wone left RFA, and he was found stabbed to death at the house on Swann Street less than two hours later, with the three defendants present. I don’t see why you need ANY of their statements for truth, beyond name and place of residence. The prosecution needs to prove that the events of that evening can not possibly have happened the way that the defendants say that they did. If you’re trying to prove someone is a liar, I don’t see the point of trying to cherry-pick some of their statements “for truth”. What am I missing?

        • Hoya Loya
          05/27/2010 at 12:25 AM

          I don’t disagree with you. I opined before the judge ruled on severance that it was better to get the statements in than risk having them heavily redacted (or at that time even severance) for the sake of having a few isolated statements admitted “for truth.” But the government must feel strongly that this is necessary. If they are doing the work they need to tonight, my guess is we’ll find out tomorrow.

          • HKG
            05/27/2010 at 3:14 AM

            so is the judge looking for a specific road map to each transcript of what conflicts and what shows obstruction?

            perhaps something like the following?

            – Joe says A, B, C
            – Victor says A, not B, D
            – Dylan says not C, E, F
            – evidence shows that D and F is not true

            so you can conclude that
            – either Joe or Victor are lying on B
            – either Joe and Dylan are lying on C
            – Victor is lying on D
            – Dylan is lying on F

            • Jerry
              05/28/2010 at 5:03 PM

              And E? Is Dylan lying on E?

    • Leo
      05/27/2010 at 1:22 AM

      No you are not understanding what “for truth” means. The hearsay rules are extremely complicated. Even lawyers do not get them right.

  27. Themis
    05/26/2010 at 11:36 PM

    Craig,
    it is Crawford, which is the most important confrontation clause case. Bruton and it’s progeny deal with using statements by a non-testifying codefendant against another. I figured it had to be a Bruton issue.

  28. Leonard
    05/27/2010 at 12:03 AM

    So far I have seen no inculpatory statements by any of the defendants against any of the others. And I think it unlikely any of the defendants will testify. What am I missing re Bruton?

    I agree with the posting above regarding state of mind. The case would need to prove not only that the conspirators performed the acts of cleaning up and rearranging the crime scene but that they knowingly agreed to this as part of a criminal goal to confuse and mislead the investigators. The latter requires strong evidence of state of mind.

    • Bill Orange
      05/27/2010 at 12:23 AM

      “The case would need to prove not only that the conspirators performed the acts of cleaning up and rearranging the crime scene but that they knowingly agreed to this as part of a criminal goal to confuse and mislead the investigators. The latter requires strong evidence of state of mind.”

      I’m not sure I understand the logic here. If the prosecution can prove that the crime scene was cleaned up or rearranged, then they’ve essentially proven that the defendants lied to the police. What other goal could they have in doing this other than criminally misleading the investigators? Are there any non-criminal goals to misleading investigators about the fact that you just tampered with the crime scene in a murder case?

    • AnnaZed
      05/27/2010 at 2:15 AM

      “So far I have seen no inculpatory statements by any of the defendants against any of the others.”

      I do Leonard, Joe and Victor in effect alibi each other, leaving Dylan to sink or swim on his own. They may have both said, “Dylan could never do that.” (giving him some sort of amorphous character witness type support), but they don’t say “Dylan was tucked up tight with us the entire time.” Also Joe (who it seems never leaves an opportunity to insult or belittle those nearest and dearest to him underutilized) was at some pains to make sue that the police were informed that Dylan is mentally ill and on medications.

      If Dylan were to break from the others and say (for example), “I opened to door of my room a crack and saw Victor with a knife on the stairs.” Joe could say “Oh, no, Victor was with me like I said.” and not be contradicting himself with his earlier statements.

      Needham may be ata’ boying Joe today but when the going gets rough (soon) it may begin to dawn on him that the story as told leaves his boy holding the bag. (How’s that for a mixed metaphor!)

      • AnnaZed
        05/27/2010 at 2:17 AM

        make that “make sure”

  29. Anti-Tasso
    05/27/2010 at 12:33 AM

    Tasso —

    First time poster, long time observer. I originally had no idea what this case was about until my wife made me pay closer attention after the Washingtonian article and I have been rapt with attention ever since, even sitting in on a few sessions while down at the court on other business. I really appreciate this site providing the information they have but after combing through the site I find your posts to be incredibly uninformed and serve no purpose other than to be inflammatory. Alot of us come here to get the best reporting we possibly can on this terribly horrific and tragic crime. I understand you may have close ties to the residents of 1509 but your views would be far more accepted if you couched them with some sense of objectivity.
    I dont think its a bridge to far to say that most, if not all of us, think that the residents of 1509 know more than they say they do about what happened on that fateful night. Gay, straight, bi, green, yellow, black or white, its an odd story and one that police with many many years of experience didnt buy. So my proposition is this, Tasso, sit back and lets see how it all plays out. There is no lynch mob, there is no homophobic slant (that ive seen), lets just all sit back and see if justice is in fact served for the Wone family.

    • KKinCA
      05/27/2010 at 1:26 AM

      Well said!

      • Nelly
        05/27/2010 at 9:15 AM

        I agree. I’ve been ignoring tasso’s posts since he kept insisting that the wooden fence behind 1509 Swann St. is only 6 feet high, is flimsy, and the metal gate is “flimsy” too. That is a total lie. Perhaps he is confusing it all with the dollhouse prop sitting in the courtroom? “Not to scale!” How wonderful that tasso is a neighborhood activist, but stop making bald assertions that are clearly not supported by the truth.

    • Sleep Less in Seattle
      05/27/2010 at 4:34 AM

      Much of this post could also be legitimately directed at many of the more long-time posters, who show no sense of objectivity whatsoever, while screaming for a conviction, justice be damned, and who condemn, bellttle and mock anyone the defendants, and associated with the defendants. Justice isn’t about vengenance. It’s about finding the truth and redressing wrongs within the rule of law.

      Citizen journalism often shares a murky border with vigilante journalism. While the editors’ reporting generally manages to stay on the higher ground, too many of the commenters plainly do not. And there are mnny more commenters here posting with a vigilante mentality in support of convicting the defendants for something….anything. Far more appropriate to admonish THEM about ojectivity, and waiting to see what evidence is admitted, and what type of justice can be administered based on that evidence.

      • dcbill
        05/27/2010 at 5:43 AM

        This blog is incredibly informative and the editors work hard to make it so. They use many of the best techniques of journalism. But this is not journalism. It is a blog.

      • Carolina
        05/27/2010 at 8:50 AM

        The difference is that Tasso makes up much of his “info” out of whole cloth and claims it as fact. Most if not all of the regulars are putting forth theories and opinions and it’s not difficult for anyone with a modicum of sense to discern that. The rest of the discussion regards timelines, evidence and trial events.

        Few people came here already convinced of anyone’s guilt or innocence, but it’s hard not to come to a conclusion when confronted with the evidence.

        By the way, are you the Seattle holder of the missing knife?

  30. Leonard
    05/27/2010 at 12:57 AM

    If a defendant was told something false and repeated it to the investigators as true they would be actively obstructing the investigation.   But, if they believed what they said and had no idea they were doing anything wrong then there is no conspiracy. Conspiracy requires both an illegal goal and a prior agreement to further the illegal goal.  Victor said Wone was breathing.  Did he know this for a fact?  Did he state it knowing it wasn’t true?  Did he state it having been told it and believing it to be true? 

    • AnnaZed
      05/27/2010 at 2:22 AM

      All of that may be true, but if all Victor did was wait upstairs until Joe told him it was time to make the 911 call (instead of calling immediately as he falsely claims that he did do) he was conspiring, obstructing and could reasonably be said to be (at the very least) suborning tampering as well.

  31. Aquanetta
    05/27/2010 at 9:57 AM

    Q. I had read somewhere in the comments that Dylan was arrested for an unrelated charge in FL, after the murder. If so, does anyone know the charges and if he was convicted, still pending etc.

    • Nelly
      05/27/2010 at 2:03 PM

      Never heard of it, but perhaps he should have been arrested for prostitution. er, I mean, offering erotic massages and more for money. This must make Needham so proud that he’s gotta give more ‘atta boy!’ shoulder slaps!

      • Carolina
        05/27/2010 at 3:04 PM

        As long as he’s happy! And he caught a successful attorney, too!/sarcasm

    • Lucien
      05/27/2010 at 3:35 PM

      Wouldn’t it have been a joyous coincidence if George Rekers had been among Dylan’s Miami clientele?

      Talk about heaps of bad publicity……….

  32. WolverineKibbitzer
    05/27/2010 at 10:26 AM

    It doesn’t make sense that the govt could be this unprepared on such a central point so deep into the trial. Must be something else going on.

  33. VA Librarian
    05/27/2010 at 11:52 AM

    Is there a link with the transcriptions of the interrogations? I didn’t see it.

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