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):
- Lynn Leibovitz is a former prosecutor, and
- Lynn Leibovitz’ former role was to train prosecutors.
- Rachel Carlson Lieber is a highly skilled prosectuor, and
- 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]