Day 14: Wrap

Drama…and Tedium

It’s been a while since things moved so expeditiously in Judge Lynn Leibovitz’ courtroom…and that’s probably saying something.

Scott Hixson

“What’s the plan?” asked Leibovitz, prompting thought that the government would bring nine additional witnesses barring a new agreement w/the defense that could slim that number. 

Through the day we got a clear sense of the plan – if Leibovitz’ continued assertive prompting of the prosecution (mostly) and defense (a bit) to step it up, toss out the art and “…just ask the question.”   By 4:45 today it seemed the prosecution might bring as many as six, but likely fewer witnesses, closing its case in chief by Wednesday.

The defense?  Their requested delay for their Rule 29 motion on Thursday and start of their case on Monday was given a sound thumbs-down by the bench.  File your motions, and get on with it, the judge offered.  No break for the weary.

How the day played out follows.

We’ve already reviewed the testimony of neighbor Scott Hixson and Robert’s close friend Jason Torchinsky.  Details that didn’t find their way to earlier posts:

  • Hixson was under the impression that Ward and Zaborsky also shared a sexual relationship – not from direct comments, but from casual observation in their house at various times of the day.
  • Hixson recounts how Ward was “creeped out” going back into 1509 in late October following reports of a break in, worrying that Michael Price could be drunk, high, or worse.
  • Price and Ward were much more the night owls than Zaborsky.  Hixson recalls one specific night, out dancing, where the three of them stayed out quite late.  Zaborsky, as a rule, would not stay out with the others.  (“I’m old,” one observer reportedly saw Zaborsky say to Connolly during this discussion.)
  • Jason Torchinsky initiated the idea of sharing Tara Ragone’s emails with Joe Price not out of malice, but he says from concern following one specific email from Price (to Ragone) where he talked about statments made the night of the murder.  

The burglarly expert – granted that status in the trial – was David Sergant, now working with the International Brotherhood of Teamsters, but before a 31 year veteran with the MPD.  Leaving in 2004, Sergeant Sergent (yes, that was his title) came to specialize in burglaries…and the other associated crimes, such as sexual assault and forcible entry.

“You’ve aged well,” said Connolly of the veteran – perhaps not just a physical reference to the silver-haired Sergant but more to his effective testimony.  “Almost every crime I investigated began as a burglary,” he began, then presenting something like a classroom lecture on burglary forensics and tactics. 

How many burglaries are when people aren’t home (second degree)?  99% he offered.  When do they happen?  Daylight working hours – “…it’s so easy to see when people aren’t home.”  Night-time entries occur deep at night, with hopes that everyone’s away or asleep.  Of those burglaries where someone’s home – first degree or so-called “cat burglaries” – many are also related to sex crimes.

Most schooling followed: where and how burglars enter, how they collect the loot, how it’s moved.  Key points: once an unauthorized entry occurs, assuming no-one is murdered, it’s almost always a burglary.  The hallmarks: ransacking of the house, signs of entry, items missing, and in the case of first degree: nearly always a witness description. 

Glenn Kirschner: “Is what you saw consistent with a burglary scene?”

David Sergant: “It’s inconsistent.”

GK: “How so?  The time of day?

DS: “Cat burglars don’t come in at 11pm.”

GK: “The crime scene?”

DS: “There was no ransacking, and so many items (at hand) a burglar would have taken.”‘

GK: “The backyard?”

DS: “Burglars don’t spend their time hopping fences…it calls way too much attention to what they’re doing.”

Connolly on cross was almost immediately handed his hat. “Isn’t your information dated,” he asked, noting Sergant’s retirement in 2004.  “Well,” Sergant drawled, “I really didn’t see much change between 1973 and 2004.”  Laughter followed. 

Connolly worked hard to try and bring evidence of similar crimes in the area over a period, even introducing an MPD press release.  With only a few minutes to read it, Sergant offered that – given all the specific notations in the release (which the defense had been working to prove a rash of fence-hoppings and first degree assaults) – the preponderance of evidence suggested just one “gang” or two or three using the exact same M.O. in each crime. 

By the time he left the stand, the defense may have been questioning the wisdom of entering that MPD release. 

Following the final break of the day, Det. Gail Russell-Brown was finally allowed to speak, having twice been sent away mute following legal objections. 

A 20+ year veteran of the MPD, Det. Gail Russell-Brown spoke of her first encounter with the defendants at Swann the night of the murder, transporting Zaborsky to the VCB, and her first preliminary interviews with Zaborsky and Ward.  None videotaped, as they weren’t at that point suspects. 

Relying mostly on memory with an assist from her notes, she spoke directly of her interviews (“…mostly sympathetic…”) and, later, of her attendance at Robert Wone’s funeral. 

It was there that brother Michael Price allegedly spoke in unusually harsh terms to Russell-Brown, who was dressed in civilian clothes.  “You mother fuckers should be out looking for the real killer and not bothering my brother,” Price said (in the sanctuary?  at the gravesite?  Not really good manners.)  “Who are you,” she asked.  “Bitch, you don’t need to know who I am,” he spat. 

Of all people it was Louis Hinton who reportedly intervened, removing Michael from the scene and “calming the situation” as Russell-Brown described.

Schertler and Grimm took turns on cross, with Kirschner on re-direct.  And pretty much every bit of it was relegated to obscure matters – the postcards we aren’t allowed to see, how many glasses of water were on the table near the seated defendants when she arrived (complete with pictures, demonstrating three – three! – perspiring glasses, and other minutiae.

Perhaps it was the late hour.  Perhaps it was evidence that we can’t see and can’t evaluate.  The day that began with a bang ended with whimper.

Louis Hinton heads up the hit parade tomorrow morning at 9:30.  His attorney will be there also; expect confrontation.

39 comments for “Day 14: Wrap

  1. Deb
    06/14/2010 at 9:57 PM

    I feel like Vinny Barbarino.

    The burglary expert testimony hit the spot, but did Russel-Brown add or detract?

    Did any of her testimony suggest that any of the things Michael said suggested conpiracy to obstruct? Or was he just a nucking fut?

    I”m really looking forward to closings. I think there are enough question marks that acquittals are unlikely.

  2. Elizabeth
    06/14/2010 at 10:00 PM

    “Sergeant Sergent?” Tell me you guys knew about this witness before you quoted Catch-22! Otherwise it is just one more perfect coincidence!

  3. Agatha
    06/14/2010 at 10:05 PM

    Jason Torchinsky is an honorable person. Thankfully a few people do step forward to do the right thing.

    • Bea
      06/14/2010 at 10:07 PM

      I don’t know Jason, but as with Scott Hixson, admire anyone who testifies honestly especially when they are friends with the defendants.

      • NYer
        06/14/2010 at 10:23 PM

        But I imagine Jason’s friendship with JP et al ended soon after JP requested waiver of the a/c relationship.

    • pocohontas
      06/14/2010 at 10:22 PM
      • Eagle
        06/14/2010 at 11:34 PM

        And Holtzman Vogel is the depository for the Robert Wone Memorial Trust Fund.

  4. CDinDC (Boycott BP)
    06/14/2010 at 10:13 PM

    Just a random thought……Mr. Hixson is quite handsome. LOL

    • Bill Orange
      06/14/2010 at 10:20 PM


    • Deb
      06/14/2010 at 10:41 PM

      But you never know. Could be a “put them shades back on” situation.

      • BenFranklin
        06/15/2010 at 1:26 AM

        And versatile.

      • tucsonwriter
        06/15/2010 at 1:29 AM

        Hmmmm – he’s got the straight look but the shades are crooked.

    • Alice
      06/15/2010 at 9:00 AM

      yep yep!

  5. Agatha
    06/14/2010 at 10:15 PM

    I don’t know Jason or Scott – either. I do agree with you – even the courage to be honest when the public glare may focus on one’s own issues.

    Bea, thank you for always being so thoughtful. I have appreciated reading your comments since I found WMRW. I have certainly learned a lot since first reading of this case.

  6. Bill Orange
    06/14/2010 at 10:30 PM

    To pick up on Bea’s comments from the last thread, the screws really have to be tightening on Victor right now. Tammy Wynette would’ve flipped quite a while ago. His partner obviously treats him like a doormat. His best friend broke off contact with him and testified against him.

    His window of opportunity to flip is getting slimmer and slimmer. If you believe (as I do) that Victor wasn’t involved in the murder but rather walked in on the cleanup, then his value as a prosecution witness is much greater for the current charges (which he would’ve been a direct witness to) than for the actual murder (which he presumably didn’t see).

    If all three of them are convicted, he’s really stuck, since the prosecution will already have won convictions for the crimes that Victor can really testify about. His lawyer must realize this. His family must now be aware that Victor makes the average Stepford wife look like Joan of Arc. I think that if the judge doesn’t throw out the charges, there’s going to be a big intervention to try to get him to flip.

    • Bill 2
      06/14/2010 at 11:03 PM

      Bill Orange, you paint some unique pictures with your words about Stepford wives and Joan of Arc and have even provided a mental soundtrack with Tammy Wynette’s hit song. I hear the old Victrola slowly winding down to a deep growl when it seems Victor will never be anything but a doormat for the man he views as his partner. Only a fool would stand by a man like that.

    • Former Criminal Sex Offense Prosecutor
      06/14/2010 at 11:26 PM

      Maybe Victor is just too much in love with his “partner” to act according to advice of counsel as well as his own rational self interest. No matter what anyone including his best friend or his biological family says to him. It is an extremely frustrating aspect of Domestic Violence cases where a woman who has been battered over & over again won’t testify against the batterer because she is in love with him. You have to put them on as hostile witnesses. They will do everything imaginable to get the charges dropped.
      Lawyers cannot always control their clients. A classic example would be if any of the defendants take the stand in this case to testify in their own defense, it will be against the advice of their attorney/s. None of the attorney/s representing the trouple today would have advised them to make the statements that were made to the police that night.

      • Newbie
        06/15/2010 at 9:35 AM

        well, IF Victor has info that he can use to flip, it means that he knows JP, DW and/or MP were involved. In which case he is flipping on a group that murdered someone in cold blood and cleaned it up. In that scenario, I think Victor would be more ‘in fear’ then ‘in love’. What if JP and DW were convicted and no charges ever came for MP? Would you feel safe?

        • Ivan
          06/15/2010 at 9:59 AM

          Exactly. No, I would not feel safe. I think fear is holding this clique together now. My heart aches for Victor.

    • ladyg
      06/15/2010 at 12:26 PM

      VICTOR, flip while the flipping is good. even if he (VICTOR) has to flip on his mama, do so. they (joe and dylan) always saw you as the weakness link, even his BFF/SARAH MORGAN, gave him a hint when she testified. now is the time to buy a clue….SAVE YOURSELF!!!

      • TT
        06/15/2010 at 1:03 PM

        What clue did Sarah give Victor when she testified?

        • Bill 2
          06/15/2010 at 1:29 PM

          She said Dylan planned to take the place of Victor as Joe’s official partner.

  7. Deb
    06/14/2010 at 10:31 PM

    PS: been meaning to submit “Dad Math” re: “for truth” vs. “not for truth”

    He said he did it + “for truth” = he did it
    He said he did it + “not for truth” = he said (he did it.)

    Law folk jump in if I’m misinterpreting the basics, but I think it’s easier to understand in this most basic fashion.

    Were I the pros, I’d go the “not for truth” route entirely, I think. That’s the only way to show the lies:

    Joe said he removed the knife from chest + “for truth” = Joe removed the knife from chest

    Joe removed the knife from chest + “not for truth” = “Joe SAID he removed knife”

    Then consider that in light of other “for truth” and “not for truth” evidence

    Joe said the knife was laying on Robert’s chest + “for truth” = the knife was laying on Robert’s chest.

    Joe said the knife was laying on Robert’s chest+ “not for truth”.= Joe SAID the knife was laying on Robert’s chest.

    So I’d go “not for truth” across the board, which better highlights the inconsistencies.

    If you go “for truth”, or try to pick and choose which should be “for” or “not for” truth, you run the risk of contradicting your own argument.

    If you go “not for truth”, you know Joe said two different things.

    If you go “for truth”, then with one witness, you have essentially asserted Joe removed the knife from the chest. With the next witness you essentially assert he did not remove the knife from the chest because it was just laying there.

    Now, to pull a Bill Clinton, define “removed”?

    Bea, Bill, CCin DC (or something like that?). I’m a virgin here pleading for the help of the pros. . Do you know the exact words for (preferably all) of the “removal” testimony?

    That would be my defense.

  8. CC Biggs
    06/14/2010 at 11:09 PM

    If you go with Joe removed the knife from chest NOT FOR TRUTH, then I don’t see how the commment has any value for the prosecution. His lawyers will say that Price told the police the truth, and that he told Hixson a lie. It’s not a crime to lie to Hixson.

    It is crime to lie to the police, but that can only be established if his comment to Hixson is offered FOR ITS TRUTH.

    • chilaw79
      06/14/2010 at 11:27 PM

      I would hesitate to brand my client a liar in court (whether he lied to the police or a friend), since it reflects poorly on the client’s credibility. The judge could take it into account in assessing credibility.

      • Deb
        06/14/2010 at 11:39 PM

        Bah-bah-bah, bah-bah-barino!

        I’m stll pretty in favor of not for truth. But I really wasn’t trying to argue which is a better tactic I just got ADHD.

        My main idea was supposed to be that people seem to be having trouble with for truth/not for truth.

        So I presented it without the algebraic stuff that confuses everyone, I think.

        • tucsonwriter
          06/15/2010 at 1:21 AM

          Thanks for that post on the for truth/NOT arithmatic. It was interesting. As a non-lawyer I can see now why lawyers command such top $$ – by avoiding common sense and making everything as completely complicated as possible…

          It makes justice seem like a joke, except that we do try…. I wonder what percent of the time the good guy wins. I think our system mostly works. Over 50% of the time But I don’t actually know – that is a guess.

          I have been heavily immersed in learning about the Mexican drug wars (Latin american would be more accurate) where there is no justice system. An estimated 2% of people brought to trial are convicted . Generally they are released within 1-3 years after that. If any of you want to go get obsessed with something else on the web if you google “Mexican drug wars 2010” you can pull up a decent BBC series of 7 shows from Feb. 2010.

    • Deb
      06/14/2010 at 11:28 PM

      Thanks! That helps to refine my thoughts.

      You seem right on with it until I get back to “define removed”. Which is a consideration.

      We need some thoughts here, don’t you think?

      In the beginning tho, I think my Dad’s “math method” helps to make “for truth” not for truth a little more understandable.

      “So Long ago when we were taught for whtever kind of trouble you’ve got, just stick the right formula in – a solution for every fool”

  9. susan
    06/15/2010 at 12:16 AM

    This reporter said the three defendants looked more “upbeat” today than any other day and he believes it’s because the judge said that she will rule on a motion to acquit once the prosecution wraps up its case.

    • Bill Orange
      06/15/2010 at 1:18 AM

      I think it’s unlikely that she’s going to acquit without hearing the defense’s case. I could be wrong. There are a number of posters here who think that the prosecution’s case is so laughable that the judge is just going to hear the motion, take a sip of water, and then throw out all of the charges. I think these people are getting lost in the weeds over things like “for truth” and “not for truth” and have lost sight of the big picture. The bottom line is that these three men ended up with a dead body in their guest bedroom, and they don’t have a plausible story about how it got there. That’s obstruction of justice.

      • susan
        06/15/2010 at 1:36 AM

        I hope you’re right re the judge.

      • BenFranklin
        06/15/2010 at 1:43 AM

        The prosecution has not made their case so the defendants won’t need to. Acquittal.

      • tassojunior
        06/15/2010 at 3:08 AM

        BO- Even in a conspiracy to obstruct case that’s stretching the burden of proof to the defendants a little too much to prove innocence. But I agree there’s a minimal case and actually hope we get to hear the defense so the suspicion can be lifted.

        The worst guilty verdict for society I think would be one based on the perceived “glare” as the only overt act proven. IMHO the Martha Stewart case went too far in the obstruction area already and one based on a subjective “physical statement” exception would be chilling.

    • tassojunior
      06/15/2010 at 2:52 AM

      I read that totally differently.

      The prosecutor hasn’t finished it’s case so she could only be that sure if she feels there is already reasonable grounds for a case.

      • Ivan
        06/15/2010 at 10:36 AM

        I don’t follow you TassoJr.

  10. KiKi
    06/15/2010 at 9:53 AM

    “The bottom line is that these three men ended up with a dead body in their guest bedroom, and they don’t have a plausible story about how it got there.”

    The defendants do not have to have a plausible story or any story. They can just sit back and watch and if the prosecution does not prove their case (which I don’t think they have reached the high reasonable doubt burden yet) then she must acquit. That being said I think the judge will make the defense put on their case (if they want to put on a case) and hear closings.

    But just keep in mind the “it doesn’t make sense” argument helps the defense.

  11. Just Wondering
    06/15/2010 at 11:41 AM

    I cannot understand why Joe Price’s out-of-context comments about his brother during his interrogation, coupled with Michael Price’s outburst at the funeral, did not lead police to focus on his possible role in the August 2 events early on in their investigation.

    Also, perhaps this has been raised before, but I find it striking and implausible that Joe would have alerted Michael — who by Joe’s own admission was unstable and erratic — to the killing of his friend Robert and his subsequent interrogation. Yes, they are brothers. But is he the person that you want to call to pick you up at the police station? Particularly if, as Joe apparently felt, the police were wrongly zeroing in on you? If the defendants’ story is to be believed, why was Michael even involved the night/morning of August 2?

  12. WMRW Voyeur
    06/15/2010 at 1:03 PM

    Does anyone think that the plaintiff or defense team reads WMRW daily? Are we shaping or helping this case? Just a thought.

  13. WIGuy
    06/15/2010 at 6:13 PM

    I know the defense is pushing buglary. What if this was an intruder intending murder? No hesitation marks from the knife tend to indicate someone experienced or enraged. Neither of which points to the defendents.

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