Day 16: Wrap

Impermissible Speculation, or Reasonable Inference?

First, the end of the day’s events. 

At 4pm Judge Leibovitz – to the apparent irritation of some legal counsel – reconvened to begin hearing argument in the motion to acquit, brought under Rule 29 at the close of the prosecution’s case in chief. 

Recall from Sean’s post that these motions may seem perfunctory, but they are serious.  In essence: the defense moves that a “reasonable finder of fact” (a generic juror) would find “beyond a reasonable doubt” (the same threshold for conviction) that the prosecution had not proven its case.   While Judge Leibovitz ultimately will be a finder of fact in this case,  in this matter she is acting as a finder of law. 

Robert Spagnoletti – apparently no longer in the Judge’s disfavor – lead for the defense.  “The government’s case is built on speculation and inference…” he began, citing four specific areas of impermissable speculation: the planted knife, alleged lies to the police, the theory of conspiracy, and a grab-bag he termed “utter speculation.” 

Speculation?  Inference?  Click through to learn more…

On the knife he began strong, citing any evidence in testimony suggesting the knife had been a plant, and the countervening argument.  “Without the knife, much of the rest of the government’s case falls apart,” he noted, with little questioning from the bench.  Prosecutions witness Doug Deedrick’s findings figured prominently – notably the questions raised in cross.

Lies to police were a bit of a wash with the judge.  “There was nothing about the stabbing of Robert Wone that shows the defendants had to have known who did it,” he repeated.  Leibovitz’ eyebrows seemed to suggest: mmm, perhaps.

From here Spagnoletti skated out onto ever-thinner ice.  It seems the new theory of conspiracy, following from a recent Court of Appeals decision, focuses on motive (as direct evidence in a conspiracy is almost by definition lacking.)  “There’s no motive on this record why any [of the defendants] would harm Robert Wone, or cover it up,” he noted. 

Asked Leibovitz – paraphrasing – “really?”  Spagnoletti having already conceded the tightness of the bond of the family (the Michael Price gambit not having payed off) had to concede that three men, in a tight relationship, could have clear motive to protect each other.

Tick, tick, tick goes the clock…and at 4:30, clearly not finished, Judge Leibovitz moved to the prosecution and Rachel Carlson Lieber.  She no doubt would have welcomed waiting until tomorrow.

A key member of the prosecutorial team, Carlson Lieber seems to have been the key member in drafting the 60+ page response, and so knew the arguments well.  Perhaps too well. 

As seems her impulse, Judge Leibovitz interrupted, bypassing broad theory and ideas and driving straight – at top speed – to pointed questioning of fact.  (“I could have interrupted Mr. Spagnoletti a lot more…” she noted in a sign of trouble to come.)

Carlson Lieber began by noting the gulf between impermissible speculation, on the part of a juror, and reasonable inference…arguing that any reasonable juror could make the inference from the evidence presented that the housemates conspired to hide fact, and as a result tampered with evidence with the goal of obstructing justice

The key here is the order: conspiracy leads to evidence tampering with the goal of obstructed justice.  (You’ll be seeing this much more in the week to come.)

“What facts exist that say when the conspiracy began?” asked Leibovitz.

This seems as good a point as any to enter into the record the following facts (without objection):

  1. Lynn Leibovitz is a former prosecutor, and
  2. Lynn Leibovitz’ former role was to train prosecutors.
  3. Rachel Carlson Lieber is a highly skilled prosectuor, and
  4. Proving a conspiracy is one the most challenging cases to prove.

With that, a :30 minute dissection of the government’s case followed, focusing on the specific facts any reasonable juror to this point would have heard, and from which could make reasonable inferences without crossing into speculation. 

Increasingly each new question from the bench felt like an old one: what facts do you cite that demonstrate conspiracy?  The governmet returned to the totality of the evidence – and what they call false statements, tampered knife and the cleaning of Robert’s body of blood.  And in response the bench would ask not for theory, but introduced fact….a hard thing to come by in any conspiracy case.

Ultimately the time line (arrival at 10:30, scream sometime between 11 and 11:34, and 9-1-1 call at 11:49) proved a basis for prosecution.  In the last few moments, in the end discussions of conspiracy theory, motive, and logic, the prosecution found their feet. 

There not being enough time in the government’s day, Leibovitz was compelled to end just after 5pm.  More argument and response will come Thursday, starting at 11am. 

[Ed note: Earlier we posted about Dr. David Fowler’s potent testimony, and promised more quotes.  For time reasons we wanted to get this post out…and for similar reasons we don’t have enough time this evening to post the more articulated dialogue between Fowler and his questioners.  We consider his witness important, and promise this weekend to post detailed interactions while he was on bench.  Please pardon us our lack of time….]

[Ed note: We thank all in attendance – observers, journalistic colleagues, and legal teams, for their consideration and generosity of one of our teams’ infirmaty.  We would do the same for any of you]

101 comments for “Day 16: Wrap

  1. Deb
    06/16/2010 at 8:16 PM

    Take your time, eds. We are anxiouslu anticipating, but your rest is most important right now.

    Sounds like Carlson Lieber may be swinging he way toward a walk off?

  2. Jo
    06/16/2010 at 8:35 PM

    Judge Leibovitz asked “what facts exist that say when the conspiracy began?” I think the conspiracy began with the delayed 911 call and the defendants lying about how soon they called 911 and the condition of Robert’s body.

    There’s no need to even prove that the knife was planted. To me, the fact that there was a delay of 15 to 49 minutes for the 911 call and the defendants clearly lying about how soon they called 911 and how Robert was still moaning/grunting/breathing upon being discovered was sufficient ground for a conviction (at least on conspiracy and obstruction of justice).

    Guilty.

    Guilty.

    Guilty.

    • Southern Lurker
      06/16/2010 at 11:03 PM

      This is also what Donna H was saying last night in reply to my post asking doesn’t the obstruction instant have be verifiable.

      Reading this from the editors tonight confirms my thinking that the judge wants only facts not the “totality” of anything, and I get pessimistic that these guys are gonna walk.

      • Bea
        06/16/2010 at 11:08 PM

        Lurker, the Judge doesn’t want to deal in generalities, of course (“they sure seem guilty since they were there and no one else was”) but she wants the individual elements to add up. I think that happened.

  3. KKinCA
    06/16/2010 at 9:04 PM

    Jo -I agree, except I think the conspiracy began with the scream when supposedly Joe and Victor discovered Robert’s body, and they then started tampering with the evidence. But it appears unclear when Dylan entered into the conspiracy. What do you think?

    • Deb
      06/16/2010 at 10:31 PM

      “Supposedly” and “I think” won’t work for the charges. There are statutory limitations to the charges, so the time stamp is essential.

      If the conspiracy began 15 years ago, it could possible be barred.

    • BadShoes
      06/16/2010 at 11:07 PM

      I think that if the prosecution were to argue that the conspiracy began with the scream, and desired to show the involvement of all three defendants, they would argue something like this:

      Mr. Ward, by his own account, was sleeping on the same floor as the guest bedroom, no more than 30′ away from the scream. One could reasonably infer that he (and the other defendants) must have heard the scream. He failed to mention said scream to the police.

      All three defendants also told police that, circa 11:40pm, they all heard the grunt/moan/scream that Mr. Wone could not have made, on account of being incapacitated or victim of an instant-death tamponade (another reasonable inference). Messrs. Zaborsky and Price specifically mentioned hearing the g/m/s in the 911 call and to Mr. Baker, respectively, showing that the grunt/moan/scream was a product of a pre-11:40pm consultatation among the defendants (yet another reasonable inference).

      Would that be fact-based enough? I dunno.

    • Jo
      06/17/2010 at 6:06 AM

      KK – I actually just read Ward’s police interview transcript. I agree with you that it’s unclear when Ward entered into the conspiracy. He just conveniently gave a lot of “I don’t know” responses.

      I can’t opine on this case from a legal standpoint. As a layman, I just don’t believe Ward has told the whole truth. It just seemed so strange for Ward to be keeping such a distance from his lover after he supposedly emerged from his bedroom upon hearing all the commotions. If he was as confused as he told the police that he was when he came out of his bedroom, why didn’t he go into the guestroom to check on Joe and Robert when he supposedly saw Joe sitting on the bed next to a bleeding Robert? Wouldn’t a reasonable person go into the room to find out what had happened and offer to help? Out of concern for his lover or even just out of curiosity? Ward said he was confused and couldn’t believe what happened. So he just froze there and then went and sat down on the couch. Oh please!

      When the police asked Ward if he saw any blood on Joe, his response was again “I don’t know. I never got, like, close enough to Joe to notice blood.” Really? They were sitting on the couch talking when the police arrived. Ward said he got a robe for Price who, wearing only underwear, was asked by police to put on some clothes. Hmm, and that was not close enough for Ward to notice any blood on Price???

      My point is that Ward’s responses in the police interview seemed elusive, conveniently omitting details that were important. That may not be direct evidence of conspiracy but a rational person can reasonably infer that Ward was not telling the truth and therefore, he’s obstructing justice.

      I probably think like the average juror and that’s why the defendants want a bench trial, hoping to get an acquittal based on legality arguments.

      • KKinCA
        06/17/2010 at 9:16 AM

        Thanks Jo. Now it makes sense that many posters here think Dylan may walk, or at least have some charges against him dismissed. There doesn’t appear to be an established “fact” entered into as evidence in the trial that supports Dylan’s agreement to join in the conspiracy. I hate to dredge up the “offered for truth” issue, but was the “fact” that the three defendants were all sitting together on the couches when the police were at the house entered as evidence? I believe that one or two of the officers testified to this. Does that mean it is something that the prosecution can use as a fact in connection with the Rule 29 motion (a fact that can be characterized as a collective agreement to a conspiracy)?

  4. Deb
    06/16/2010 at 9:08 PM

    My understanding is that to prove the conspiracy in DC/Fed, you must be able to demonstrate the clear inception of the conspiracy. It is not enough to say, “It developed over time”. There must be a call for the huddle, at some point.

    Personally, I think 11:43 is a great place to start.

    11:43 is consistent in their statements, even with Ward as I recall, and is not in any way related to any other time element entered into evidence, to my knowledge.

    So, the conspiracy began at 11:43 pm on 08/02/06 and continues.

    Legally, in this instance, the conspiracy must begin at some point in order for the charge to be valid.

    • Bill Orange
      06/16/2010 at 9:16 PM

      I’m with KKin CA. The (current) conspiracy to obstruct justice began with the scream, which occurred between 11 and 11:35 on 8/2/06. The conspiracy is ongoing, in my opinion, but if you need to argue that there was a particular “stop time” to the conspiracy, or at least to the completion of the underlying plans, then I would say “when they separated by the police right after the murder”.

      • Bill Orange
        06/16/2010 at 9:17 PM

        Er, make that “…when they WERE separated…”

      • Bea
        06/16/2010 at 9:26 PM

        Agree about the scream as to the ‘new’ or ‘current’ conspiracy (whatever happened before notwithstanding – no relevance here). As to the conclusion, if one can’t say it’s still ongoing, I think you could at least claim it went through the Tara Ragone communication weeks later when she informed Joe that if there was tampering then it would not ‘set well’ with her (implying her involvement with police). Certainly it would go through attempting to seek evidence through Jason Torchinsky since it involved Kathy Wone’s statements to police, possible disclosures that affected Joe’s thereafter (mis)dealings with police. One might argued it continued until October 06 with Joe telling cops his brother had a key.

        In other words, I don’t know how she will parse it. I’d love to hear from former prosecutors who did conspiracy cases AND Themis as I think we’d see the far parameters.

        • Bill Orange
          06/16/2010 at 11:26 PM

          The interactions with Ragone and Torchinsky were exclusively by Joe Price, so I don’t think they’re really relevant to a conspiracy–that could’ve been (and probably was) Joe Price acting on his own. From a legal standpoint, it’s not clear to me when a conspiracy ends. If the conspiracy refers simply to formulating the plan, then I’d say it ended shortly after the murder. If conspiracy means both formulating a plan AND carrying it out, then I’d say it’s still ongoing. As an example, if five people meet for lunch and plan to rob five different banks that afternoon (so that each one will have a better chance of getting away from the police), does the conspiracy end when they all leave lunch, or does it end when the last one finishes robbing the bank?

      • Deb
        06/16/2010 at 10:41 PM

        I think in DC, statutorily, you need a clear start point.

        TV viewing, grunt estimates are not specific

        The one specific thing is 11:43.

        The only way the three xould have possibly specified that exact same time in each of their individual, voluntary statement is if they collaborated upon it because there is no other evidence of 11:43 as a time marker

        • gertiestn
          06/16/2010 at 10:55 PM

          But I don’t think 11:43 works as the start time of the conspiracy; what makes 11:43 outstanding is that each of the three used it, and the time was incorrect. I think “11:43” is the emblem of the conspiracy, rather than the time-stamp of its start.

          Possibly a case could be made that the time reported by the 911 operator signals the start of a conspiracy, but that event would get you only Joe & Victor.

          • Deb
            06/16/2010 at 11:13 PM

            The judge is looking for a statutory date stamp, to ptotect the defs.

            That’s her job.

            FACTUALLY, the grunt, the towel, the news show, whatever, all have only a “generally speaking” role in all of this.

            FACTUALLY, the defendants voluntarily offer 11:43 as a time stamp, which is 6 mins before the actual call to 911 . . . which can FACTUALLY support conspiracy.

            Put all of our other opinions aside, how do you argue against that?

            The judge is looking for the statutory start.

      • Deb
        06/16/2010 at 10:50 PM

        Wishy-washy.

        I don’t buy it, and I maintain a constant profile name.

        • William
          06/16/2010 at 11:23 PM

          Can there be one start to the conspiracy for two of them (Joe and Victor) and another start when Dylan joined the conspiracy?

          Does there have to be an end time to the conspiracy? Aren’t they still in the conspiracy because they are somehow binding each other to keep silent?

    • cinnamon
      06/17/2010 at 9:23 AM

      I think that the conspiracy began when they thought Robert had OD’d and their efforts to revive him in the shower failed. At that moment they decided to stage a stabbing. Victor entered the conspiracy when he came downstairs, screamed and then agreed to participate in the cover up and make the 911 call.

      • Elizabeth
        06/17/2010 at 9:48 AM

        Cinnamon, I just spent some time reading about “date rape” drugs, and some slow your heart and respiration, others increase your blood pressure – many different effects on the body. I just don’t see though, why JP, VZ, or DW would have thought Robert was actually dead.

        • cinnamon
          06/17/2010 at 10:15 AM

          I’m not a medical expert by any means and I’m not an expert on date rape drugs either. I just have a hard time believing that Robert’s death was intentional. I believe that he truly was their friend and that this was an accident and that they were motivated to cover it up for some reason, be it illegal drug use and/or sexual practices that they would rather not become public.

          There may have been a cocktail of several drugs used that could have made it appear that Robert had OD’d. There are some drugs that were not tested for, ex. Ketamine.

          • Elizabeth
            06/17/2010 at 10:34 AM

            Oh, I’m no expert either. And I agree with you that more than being some premeditated murder, something went horribly wrong.

            I was more asking about the plausibility that two or three relatively smart guys could think someone was dead when they were not…I mean Robert had a pulse and was breathing, given that the COD was stabbing.

            Not that any of this really makes sense, but it doesn’t make sense that they thought he was dead and then stabbed him to cover up whatever they believed the cause of death was – overdose or what have you.

          • William
            06/17/2010 at 10:39 AM

            I don’t know if I’ve seen this thought expressed before, but I have a lot of personal experience with date rape drugs (GHB and ketamine) and usually BOTH I and my partner would take them. It wasn’t “fun” to give them to your partner and not take them yourself. So it’s possible that whatever drug was given to Robert was also taken by the killers.

            GHB is very hard to dose correctly; I often took mini-overdoses or gave them to my partner; I would definitely go through periods of unconsciousness or semiconsciousness, and the point was loss of control. It “helped” us do things we wouldn’t ordinarily do. And I confess that sometimes I gave him an extra large dose if I wanted to be in more control and manipulate him. (No, I’m not proud of this past.) On Ketamine, I sometimes experienced amnesia and would “wake up” not knowing who I was or what I was doing. I panicked and definitely did “irrational” things.

            My point is that we shouldn’t try to think about what any of the defendants did as arising from rational thought. Even off drugs, such a killing would never be rational. Drugs don’t excuse what happen, but they might help explain it.

            • CDinDC (Boycott BP)
              06/17/2010 at 10:46 AM

              GHB and Ketamine have been discussed at length on this site at various times in the past. Not so much currently, as incapacitation by drugs is “off the table.”

              I’ve been a big believer in the use of ketamine theory from the beginning.

            • Elizabeth
              06/17/2010 at 10:49 AM

              Did you ever think your partner was dead when he wasn’t?

              • William
                06/17/2010 at 4:06 PM

                No. I went on some weird head trips though, with loss of reality.

            • chilaw79
              06/17/2010 at 10:51 AM

              In your experience, could ketamine have been provided in a glass of water without Robert Wone’s knowledge or consent?

              • William
                06/17/2010 at 4:04 PM

                I drank GHB, only snorted K. GHB can have bad taste (I usually had it in gatorade), but only “proof” Wone drank water is defendants’ statement. Why did Joe make a stink about police not checking out water glass? Maybe he wanted them to check it out and find nothing. That could have been part of the cleanup.

            • cinnamon
              06/17/2010 at 10:52 AM

              Yes, I think what you suggest is likely what happened… that they probably all took drugs…everything from that point on doesn’t have to make sense. People do odd and irrational things on drugs. Joe and Dyaln’s behavior, as reported by the first responders, would support that they could have been high on something.
              I wish they had been tested too.

              • Elizabeth
                06/17/2010 at 11:02 AM

                That’s a great point. I wonder what their drug tests would have revealed? I just have such a hard time with, “oh well, everyone was wasted so who knows?”

                All I am getting at is it seems odd (there’s that word again!) for some smart guys to think someone was dead when they weren’t.

                Maybe there is a totally different reason, than to cover-up for a possible OD, that he was stabbed.

                • cinnamon
                  06/17/2010 at 11:14 AM

                  Others on this site hold the theory that Robert was given drugs and sexually assaulted in the belief that the drugs would prevent him from remembering what had happened to him and that the stabbing was to cover for the sexual assault. I’m not so inclined to believe that they sexually assaulted their friend. It’s becoming clear that Joe and Dylan didn’t have a problem finding willing participants in for their sexual acitivities. So why prey on their straight friend?

                  Perhaps the combination of drugs and the e-stim machine made it appear that he had died. I don’t know. I’ve been using one of those machines as therapy for an injury and it sometimes makes my heart feel like it’s racing.
                  I would like to hear more from others who have had experiences of unconsciousness with drugs.

  5. Deb
    06/16/2010 at 9:17 PM

    Jo:

    I talk too much sometimes.

    Bottom line on the “delayed” 911 call, no one knows the delay because the evidence (witness recollections) spans a large window of time.

    Can you say the conspiracy began between the hours of 10:30pm and 11:49pm om Aug 2, 2006? Yes.

    But with what specifics will you back it.

    I think the one specific we have here is 11:43. 11:43 has nothing to do with any person, any place, or any thing EXCEPT that it is consistent among the defendants.

  6. Bea
    06/16/2010 at 9:20 PM

    Man, do I want the Rule 29 decision. The waiting is awful – cannot genuinely imagine what the Wone family is going through. While of a different nature in my sense of things, I can’t imagine what the night holds for the three defendants either. I do wonder about the ‘dark’ response Victor had to yesterday’s emails between Joe/Dylan which disturbed Victor so, and whether there is any lingering damage. Occasionally I think that the defendants, or one/two of them, are waiting around long enough to see how things go before deciding it’s time to cut bait and stop fishing.

    • Bill Orange
      06/16/2010 at 9:30 PM

      I agree. I think everyone’s going to step back and reassess their positions after the judge’s ruling. If everyone gets off (which I think is unlikely), then they obviously don’t have to think about it as much. On the other hand, if most of the charges remain intact, then there’s going to have to be some hard choices. You will essentially have the judge–who will also be the one rendering the final ruling–telling you that she can see how a reasonable person, and therefore herself, could think you’re guilty beyond a reasonable doubt. That’s going to be a powerful motivator for someone to cut a deal. I think that they all probably realize that the longer they wait, the worse the deal is going to be. Frankly, if I were the prosecution, I wouldn’t bother negotiating a deal if I got convictions. I’d just ask for the maximum sentences and call it a day. And I probably would advised the defense of this game plan.

      • NYer
        06/16/2010 at 10:35 PM

        BillO writes: “if I were the prosecution, I wouldn’t bother negotiating a deal if I got convictions. I’d just ask for the maximum sentences and call it a day.”

        I generally agree. But I’d also consider offering Victor a pittance, such as 25 years instead of the full 30, to come clean. Enough time shaved to be an incentive for him to tell the truth, but not enough for the sentence to be considered a “deal” by anyone’s standards…

        • Bea
          06/16/2010 at 10:48 PM

          It’s pie in the sky ruminations from me, and I recognize it will be VERY unpopular here, but IF Victor could deliver 1st Degree Murder charges against the murderers (because I have to believe there were at least two involved in the murder – or one murderer and one VERY culpable conspirator) AND assuming he had no part in the actual murder, I’d give him immunity.

          • WhatACase
            06/16/2010 at 11:08 PM

            I’m with you, Bea. True justice here comes from a murder conviction against the responsible party or parties. If that means someone walks who kept their mouth shut for too long, so be it. The Wones deserve to know what really happened.

          • William
            06/16/2010 at 11:27 PM

            1st degree? Do you think they planned to kill him before he got to their house? Most of the scenarios I’ve read speculate that something went wrong during the sexual assault that led to the murder. (Or is a death while committing a second felony considered 1st degree murder?)

            • Bob
              06/17/2010 at 8:34 AM

              I am not a lawyer, but I know that murder while committing first-degree sexual abuse in the District is felony first-degree murder.

          • Kate
            06/16/2010 at 11:30 PM

            I could go along with that deal, Bea.

            Except for the First Degree part. I really don’t think that what happened to Robert was premeditated.

            But it sure would be grand to see the murder solved.

            Cheers,
            Kate

            • Bob
              06/17/2010 at 8:35 AM

              It doesn’t have to have been premeditated to be first-degree if it was done in the course of first-degree sexual abuse (that is, rape).

              • Kate
                06/17/2010 at 4:07 PM

                Thanks, Bob – I didn’t know that – not a lawyer, either.

          • Bill Orange
            06/16/2010 at 11:34 PM

            I would only offer him that deal if I thought he could make the charges stick, and I don’t think he can do that. I think he walked in on Joe and Dylan (and possibly others) cleaning up a dead body. That testimony–especially if it’s coming from a convicted felon–would have very little value if there’s already been a conviction of the other two for obstruction. His testimony would prove obstruction but not murder. Joe could say that Dylan did it, Dylan could say that Joe did it, and both of them could say that the prosecution was right the whole time–Michael Price did it, and it was probably the door chime from him leaving the house that made Victor come out of his room. I’d be willing to let him walk IF he flips now and IF he had nothing to do with the murder. But after this trial? No way. I don’t think he’d have anything to offer.

            • Bea
              06/16/2010 at 11:39 PM

              Kate – IF the murderer made a conscious decision to stab him to prevent him from talking, I think you could argue that was premeditated. Agree if there was no mental pause.

              Bill O – Victor has the goods is my guess (assuming here that Joe was one of the murderers). Keep in mind that Joe can’t STOP talking, and the marital privilege would not extend if Dylan was present. All the current evidence plus Victor’s narration would be more than enough in my estimation. Think about what he could say about noises, where Joe was that night, when he went downstairs, what he saw (REALLY saw), and what the murderers discussed after he screamed (again, 3rd party kills privilege).

              • Bill Orange
                06/16/2010 at 11:45 PM

                I don’t think so. I agree that Joe can’t stop talking, but I wouldn’t believe anything he said to Victor–I expect that if he’s told Victor anything, he’s blamed the whole thing on someone else. I also think there was a big “don’t ask, don’t tell” component to their relationship, and I don’t think Victor wanted to know many (if any) of the details about what Joe did with Dylan, with Scott Hixson, with his alt-dot-net buddies, and so on. I think there’s a very real chance that Joe just said, “You don’t need to know,” and left it at that.

                • Bea
                  06/16/2010 at 11:56 PM

                  I see your point, but think the murderers that night did not have the luxury of separate discussions. Assuming Victor went upstairs, he might have facts about the night, would know what made him go downstairs, what he saw, what the murderers were doing in that moment, what they said when he had to be calmed. He would know what he was told, what “the story” was supposed to be before he was sent to make the call, what was negotiated/discussed before it was hammered out. He would know whether that 3rd knife existed (and whether someone went for one from the block).

                  Because I suspect there was Plan A before the scream, I suspect that knife issue arose after V arrived.

                  Observations in addition to conversations would be significant.

                  • Bill 2
                    06/17/2010 at 12:01 AM

                    And he also knows how much blood may have been cleaned up. He mentioned that there was a lot of blood but there wasn’t much blood when the EMT people arrived.

                    • Bea
                      06/17/2010 at 12:07 AM

                      Agree. If if cleaning was finished, tesimony that the rags filled a hefty bag and/or what was done with a weapon would be ‘game over’. Also, if (for example) there was concern about particular drugs being tested, also huge. List goes on and on, if the theory is remotely close to what actually happened.

          • Deb
            06/16/2010 at 11:36 PM

            With you on that.
            Ambush seems clear, but Zaborsky seems equally ambushed.
            That said, for whatever reason he is, on paper, more complicit that Ward.

    • Deb
      06/16/2010 at 10:57 PM

      I hope the are restless with lack of sleep.

    • Former Criminal Sex Offense Prosecutor
      06/17/2010 at 1:02 AM

      The waiting is awful. It eats at your soul. Whenever the defense made a routine summary motion to dismiss for insufficient evidence (to not do so would be malpractice), no matter how certain I was that I had covered each & every element of the crime with such clarity that it could not logically be granted, I would still be terrified.
      Bearing in mind that the evidence presented is viewed in the light most favorable for the state for the purpose of the motion, my heart would still skip a beat & I would feel as though I had somehow screwed up & let everyone down until the judge ruled in favor of the state.
      As to questions about making deals with the devil or one of them to give the victim/s family the peace of mind that comes with the certainty of at least the most guilty being convicted, as well as providing the family with closure in that the truthful details of what occurred must be provided, that is a decision that I always left up to the victim/s family. I don’t know the prosecution team here, but that is often how it is handled. The family will sometimes elect to cut a deal with no one, it is their gamble to take.
      I am not going to predict the Judge’s ruling, no matter what I think it should be, it is bad luck to become overly confident of your case. I do want very much for justice to prevail. Let the light pierce the darkness. None of us know who is reading this blog, to that person who may be wavering, if you are reading this-the truth will set you free. Let the light pierce the darkness. This cannot be the life that you intended to live, it is never too late to do the right thing.

      • Kate
        06/17/2010 at 6:12 AM

        Wow, Former Prosecutor, very eloquent and heartfelt, as always. You must have been a powerful advocate for the People.

        Are you still practicing law in Michigan (I believe that’s where you said you had moved)?

        “Let the light pierce the darkness.” That’s beautiful, and describes what justice truly means.

        Many thanks,
        Kate

  7. chilaw79
    06/16/2010 at 9:30 PM

    I was just looking at jury instructions on “reasonable inference.”

    A typical jury instruction states: “You should use common sense in weighing the evidence. In our lives, we often look at one fact and conclude from it that another fact exists.”

    Jury instructions often then caution that an inference must be based on evidence and not just on a speculation or possibility.

    The difference between “reasonable inference” and “speculation” is whether the inference is based on a fact in evidence. A basic fact here is that the three defendants were at the crime scene. What is the fact on which a reasonable juror could conclude that an unknown intruder did this? The only facts that I can point to are that other people, including Michael Price had keys to the home and that the back door may have been unlocked.

    • NYer
      06/16/2010 at 10:50 PM

      One of my favorite jury instructions was based on a famous 1850s definition of reasonable doubt by Massachusetts Judge Lemuel Shaw:
      “Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge…”

  8. Rebecca
    06/16/2010 at 10:01 PM

    Could someone summarize the possible outcomes based on what has happened so far? Over the past few weeks I have been glued to this web site and this case with total confidence that the truth would prevail. Today, for the first time I am fearful that the nuances of the law will lead to an outcome I would not have predicted based on the facts as I know them. So, aside from just the possibility that the judge will say “not guilty”, what other options are possible?

    • Rebecca
      06/16/2010 at 10:08 PM

      Not sure I expressed myself properly in the last post….until today I thought guilty was the only possible option, based on my own evaluation of all of the evidence. Now I realize that what is allowed to be considered under the the law can be at odds with the other facts presented. If nothing else, this case has brought the law alive to me in a way that has never happened before (even in my nearly 20 years married to a criminal defense lawyer!).

    • Bea
      06/16/2010 at 10:10 PM

      Hey Rebecca,
      On the Rule 29 and on the final judgment, the judge can proceed against (Rule 29) or convict (verdict) each defendant on each charge so the possible outcomes are many. Because you need two to conspire (here it appears you’d have to get two of the defendants since there is not a fully validated unindicted co-conspirator), it isn’t that you could convict only one of conspiracy. Other than that, it’s practically any equation as to the individual defendants and the individual counts (though the consensus is that the evidence is strongest against Price).

      If you’re asking something different, let me know.

      • Rebecca
        06/16/2010 at 10:18 PM

        Thanks, Bea. That helps. I appreciate your clear explanations.

      • chilaw79
        06/16/2010 at 11:17 PM

        As I understand it (and again I have not practiced criminal law in decades), if the judge denies the motion for acquittal under Rule 29, it is not the same as a conviction. The defense puts on its case.

        The judge could deny the Rule 29 motion and, assuming the defense decides not to present evidence, then decide whether to acquit or convict the defendants based upon a reasonable doubt standard.

        If the judge were to grant the motion of acquittal as to all charges against all defendants, the case would be over.

        • Bea
          06/16/2010 at 11:24 PM

          Sounds right to me.

    • Carolina
      06/16/2010 at 10:13 PM

      The judge can say the prosecution didn’t make its case and it’s over. She can find there isn’t enough for some charges against some of the defendants, or she can allow all charges to stand and proceed with the defenses’ case.

      • Rebecca
        06/16/2010 at 10:23 PM

        Based on what has been presented to me I can’t imagine that the judge could conclude there is no case against the defendants…unless the rules of law omit some key testimony or evidence from consideration

    • chilaw79
      06/16/2010 at 11:07 PM

      The judge can decide to acquit any or all of the defendants on any or all of the charges. Alternatively, the judge can decide not to grant the motion of acquittal under Rule 29 as to any or all of the defendants on any or all of the charges.

      If the judge denies the motion, the defense will put on its case as to those defendants and those charges that remain.

      Since none of the defendants are charged with murder, the judge’s decision does not preclude the prosecutor from going forward with a murder case if and when the prosecutor decides there if sufficient evidence to do so.

  9. tucsonwriter
    06/16/2010 at 10:18 PM

    I can’t wait to see the post regarding Dr. Fowler’s testimony.

    Thanks to the editors for letting us know about the judge’s background as prosecutor. I now understand her conduct, which puzzled me before.

    Phew this is crazy! Love the picture of the kitty conspiracy.

    Hopefully the oldest trick in the book, Staunch Denial, won’t win the day.

    • Craig
      06/16/2010 at 11:08 PM

      Doug will post the Fowler stuff in the morning. He’s got three or four solid pages of notes and quotes.

      • tucsonwriter
        06/17/2010 at 2:07 AM

        I know….. not trying to apply pressure – just saying that I can’t wait to read about one thing that sounds solid FOR the prosecution.

        While no one wants to see an innocent person get convicted at the same time no one wants the law to unravel into “Trivial Pursuit.” It’s a travesty when people of means can hire defense lawyers to trivialize the issue, shred personal reputations, and pretty much “dumb down” the legal process in terms of miring it down in trivia.

        I find it amazing that the same lawyers are being trotted out again and again for the defense – Phil Spector’s lawyer. I am sorry but Phil Spector was insane. He is crazy. How these people can come around again and again….

        The only thing that gives me “hope” even though it precludes another victim…..is Dostoevsky’s “Crime and Punishment.” If, as in OJ Simpson and Van der Sloot, the actual murderer or murders- who has to be one of the residents of 1509 Swan Street, isn’t found guilty and gets off, the guilt is overwhelming and the criminal has this need to get caught and taken off the street. In the case of OJ and Van Der Sloot they go until they get caught. They want to be caught. But that is the criminal taking himself out. That is not a solid legal system.

        I am struck with how much doesn’t work in our system. I am wondering what those who actually work in this arena think is fair. How broken is the system? Mostly right, somewhat right, really off?

        I would imagine that a lot of crimes are committed under duress- the person just has had it and they aren’t thinking about the consequences. There is no attempt at cover-up. Those crimes are solved pretty quickly.

        The really odd note to this crime is the complete attention to cover-up, which really leads me to conclude, since it is so unusual, that Joe Price is our man.

        Yeah the reason why there was no jury trial in this case…. we would all convict with one look at the evidence and one look at Joe Price in court.

        • emg
          06/17/2010 at 7:27 AM

          The fact is the law does not necessarily get to the truth. With facts being ruled “inadmissable,” “inflammatory,” and “prejudicial,” its amazing anyone gets convicted. While laws were established to protect the innocent from being railroaded, they have become giant loopholes for the guilty.

          • Lee
            06/17/2010 at 8:13 AM

            Giant loopholes for defendants with money and other resources, perhaps. But it’s not clear that there are enough protections for the poor and indigent.

            I think the point has been made on this blog before that if these three were poor they would already be serving time.

            • dcbill
              06/17/2010 at 9:56 AM

              Let’s not forget that Tom Connoly represented Dr. Steven Hatfill in his battle with the government over the amerithrax investigation. He’s no Phil Spector. The government framed Hatfill, pursuing a theory of the crime that just did not hold water. Now, it is clear that Hatfill is completely innocent–thanks to the good work of his attorney.

          • KV
            06/17/2010 at 9:29 AM

            “With facts being ruled “inadmissable,” “inflammatory,” and “prejudicial,” its amazing anyone gets convicted.”

            My sentiments too. As in: indications of blood in the patio drain and spatter around the bedroom and bathroom areas deemed “contaminated.” Seemingly obvious signs of a clean-up. The outcome of some cases, it appears, can almost be pre-determined befoe they start by evidence that is excluded.

        • KiKi
          06/17/2010 at 9:32 AM

          Absolutely true emg. Criminal law in this country is not a truth finding mission. The founders expressly designed it to be that way.

          The justice systems of other countries (such as where the founders came from) employ an inquisitorial system of criminal justice we have chosen an accusatorial or adversarial system. While this will often not get to the “truth” it will, in theory, never allow the innocent to be convicted but in turn the guilty may go free. It is the Blackstone ratio “better that ten guilty persons escape than that one innocent suffer.”

          There is a beautiful quote by Supreme Court Justice Goldberg, which is referring to the 5th amendment privilege but I think is relevant across the board:

          “…our sense of fair play which dictates a fair state-individual balance requires the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege while sometime a shelter to the guilty is often a protection to the innocent.”

          It is for those reasons and my extreme belief in our constitution and the wisdom of our founders that I chose to be one of those lawyers “trotted out again and again for the defense.”

          It is possible that one or more of these men will be acquitted, probably not on the Rule motion, but possibly after the defense case. And while there are many people who will be angry and upset by that outcome, it is important that this discontent be directed at the right sources in order to affect positive change.

          IMHO it is not the fault of the defense attorney, the judge or even the prosecutors, there is one reason that these men have not been charged with murder and may be acquitted of these charges: an inadequate, prejudiced and incompetent police investigation.

  10. Bea
    06/16/2010 at 11:01 PM

    Anyone know what the second “note” made by the Eds. refers to? Did something happen to one of the team?

  11. Bob
    06/16/2010 at 11:33 PM

    I have a stupid question. If one of the parties discovered the crime, and went along with it afterward, are they an accessory after the fact to first degree murder? That isn’t the question. I am not a lawyer, but I know that the answer is yes if there is DC first-degree sexual abuse, which is similar to common-law rape elsewhere. However, my question is what is the maximum prison sentence for being an accessory after the fact to first degree murder as felony first-degree sexual abuse murder? The question was asked of why one defendant has not “rolled”, and so why the cover-up, if there is one, goes on. What exactly is the sentence in the District of Columbia for an accessory after the fact to first-degree murder? I can see that first-degree murder itself is not more than sixty years, but that the prosecution can demand special circumstances. (Most murderers don’t live for sixty years after conviction, anyway.)

    Someone was wondering why one of the parties has not “rolled”. If they are an accessory after the fact, are they in for a penny and in for a million pounds?

    • Bea
      06/16/2010 at 11:45 PM

      Hi Bob, maybe one of the local crim attorneys can give you the sentence ranges. I just don’t know. I think, though, if someone “rolled” his attorney would be working out a deal well in advance with the deal (including sentence, if any) as set as can be.

  12. BenFranklin
    06/17/2010 at 12:41 AM

    The judge will kindly phrase the judgment for acquittal so the prosecution is not humiliated. She won’t require or allow the defense to expose the stunning malicious incompetence of the MPD.

    Just hours to go until the innocent walk free and the defense turns to offense.

    • Bill 2
      06/17/2010 at 12:48 AM

      The rain in Spain stays mainly in the plain. But in Hartford, Hereford and Hampshire, hurricanes hardly happen.

      • Bea
        06/17/2010 at 2:23 AM

        Thanks for the weather update in Spain, Bill – and for kindly phrasing it such that Spain is not humiliated. Do you think people in Spain realize that in an decision on a Rule 29 Motion, should “the defense” win, that “the defense” would have absolutely no opportunity to “expose” anything? To suggest this shows stunning incompetence as to the law!

      • Kate
        06/17/2010 at 6:26 AM

        Funny story about Spain:

        Years ago our friends had just returned from an overseas duty in Spain. They raved about the Tappas Bars (I think I spelled that right?) and how we would enjoy them when we served there. Anyway, I thought they were saying TOPLESS Bars and said politely “we’ll be sure to give it a go.”

        Yes, I had proverbial potatoes in my ear … and Ben has a log in his eye.

        • Ivan
          06/17/2010 at 8:10 AM

          One ‘P’.

          • Kate
            06/17/2010 at 4:11 PM

            Thanks Ivan – I was having a brain fart this morning!

    • Bill Orange
      06/17/2010 at 8:25 AM

      I had to put soy milk in my coffee this morning, because we’re out of half-and-half.

      • Bill 2
        06/17/2010 at 8:54 AM

        Next time, instead of soy milk, put some zing in your coffee with Bailey’s Irish Cream.

  13. Josh
    06/17/2010 at 1:24 AM

    Hey, BF. Is that your real name? If not, why not put it? And what is your axe to grind? The vast majority here feel a horrible crime has happpened and want to understand it and want to see justice done. You, in contrast, seem just to be cheerleading for the most likely culprits. What’s the point?

    • tucsonwriter
      06/17/2010 at 2:14 AM

      Yeah exactly. Are you JP?

    • Carolina
      06/17/2010 at 9:22 AM

      Aw honey, he’s just the local weirdo. Just ignore and talk about SPAM. Er, Spain.

  14. tucsonwriter
    06/17/2010 at 2:10 AM

    The soundtrack to this trial would be by The National. “Anyone’s Ghost.”

  15. emg
    06/17/2010 at 6:25 AM

    If they are all convicted on one or more counts or it looks like they will after the defense rests, a civil action will be a slam dunk. That is when one of them will cut a deal. First man in with the truth wins. Otherwise he (whoever it is) will be paying for the rest of his sorry life for the actions of the others.

    Re: premeditation. I don’t think the amount of time is a necessary component. It is just a conscious decision to kill, rather than a “crime of passion”. It can be minutes before the event.

    • weaver
      06/17/2010 at 8:17 AM

      Yep… first one to roll wins. Also, this had to be premeditated. They would need to have the drugs on hand to incapacitate. No way will I ever believe that Wone willingly wanted to be incapacitated and tortured.

      • cat
        06/17/2010 at 9:06 AM

        Roll on!

      • David
        06/17/2010 at 9:20 AM

        I am thankful for this website as I too have been interested in this case since the murder happened.

        My gut tells me that the premeditation was in the planning to have some sexual fun with the handsome friend and victim without his knowledge. Call it date-rape or worse. Only Robert being a healthy man and Dylan being a self-taught practitioner of the methods didn’t do his job very well and Robert woke up, but was still physically incapacitated.

        Panic sets in and Robert is killed and then we protect the family.

        One flaw in my idea – if there was no premeditation as to murder, why was there a knife? Maybe part of the S&M bag of tricks?

        I have never understood the notion of an intruder – the idea that someone would come into a house at random and kill the overnight guest and not disturb anything else. I am certain beyond a reasonable doubt that it wouldn’t happen.

        • Elizabeth
          06/17/2010 at 9:29 AM

          I agree – reasonable doubt does not mean no doubt.

  16. weaver
    06/17/2010 at 8:14 AM

    Looking forward to the ruling today. Does anyone know what time that should happen?

    I also think the defense will have to proceed, because nobody in their right mind would believe the defendants and the BS intruder story. It’s beyond obvious they are lying. What they did to Wone was horrific and imo actually qualifies for torture. They all deserve long prison terms. I hope it will be soon.

    • Carolina
      06/17/2010 at 9:25 AM

      This isn’t a murder trial, but conspiracy, tampering and obstruction. Those things are hard to prove and the judge can’t use “gosh golly, they just SEEM guilty” as a reason to find them guilty.

      • weaver
        06/17/2010 at 9:34 AM

        I realize that Carolina, but the prosecution didn’t say “gosh, golly, they just seem guilty”…. they have laid out the obvious guilt quite well through numerous witnesses, facts and expert testimony.

        The judge just needs a few brain cells to know they are absolutely right.

        It’s not a murder trial YET, but it is paving he way for one, imo.

  17. christy love
    06/17/2010 at 10:38 AM

    Why does the law care when a conspiracy started? It’s so stupid to me. I’ll tell you when it started, when shit went wrong and these punks realized they were looking at a very long time in prison, that is when it started. It started on Aug 2. How is that? When did it end? It hasn’t ended and won’t end until they die or start telling the truth.

    Good thing this judge was a prosecutor, making her more likely to convict.

    • Hoya Loya
      06/17/2010 at 10:47 AM

      I don’t think this judge is more likely to convict — I think she is incredibly fair. She may not be snowed by defense smoke and mirrors, but as a former prosecutor she also knows exactly what standard the government has to meet and will hold them to it. Her questioning on Rule 29 yesterday is Exhibit A as to this. She will not convict unless she has been provided with sufficient facts to rely on in her decision.

      • christy love
        06/17/2010 at 11:06 AM

        O.K., maybe it’s wishful thinking.

      • Greta
        06/17/2010 at 8:14 PM

        What “defense smoke and mirrors”? I think the defense thus far has done a pretty poor job…but I agree that Leibovitz is not one to be suckered. She’s the smartest one in the room….maybe except Joe Price!

    • SJinNYC
      06/18/2010 at 1:11 AM

      Right on. I can’t believe this judge won’t err on the side of the prosecution. They may not have a slam dunk case, but they’ve definitely done an adequate job of proving these beasts are lying beyond a reasonable doubt. If she has a soul, and I think she does, she wants to see justice done for this poor man too.

  18. CDinDC (Boycott BP)
    06/17/2010 at 10:41 AM

    Christy Love says: “I’ll tell you when it started, when shit went wrong and these punks realized they were looking at a very long time in prison”

    Tell it like it is, Christy Love! LOL!

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