Day 17: Wrap

Going Rogue with Defense Witness Petraco

After the lunch break, the defendants were sitting in their respective positions that they have sat throughout most of the trial with Joe Price separated from from Dylan Ward and Victor Zaborsky.  Only AUSA Patrick Martin from the government was sitting at the government’s table when Judge Leibovitz entered the court room.   She noted that defendants and their counsel were present, “…but it seems we don’t have a prosecutor.”  Martin jumped to his feet saying he would find his boss, Glenn Kirschner.  He scurried out of the courtroom looking for the Chief.

A few moments later Kirschner walked in seemingly unaffected by his late presence, and said his deputy, AUSA Rachel Carson-Lieber would be in shortly to begin the cross of defense expert witness Nicholas Petraco.  Later, the prosecution’s hair-and-fiber expert Douglas Deedrick also entered the courtoom.

Carlson-Lieber went on the attack.  Learn how, after the jump…

Carlson-Lieber began by questioning Mr. Petraco’s qualifications, and noted he has done work in “gem stones.”  He said that was more of a hobby.  He said he is qualified as a expert in hair and fiber, as well as impression evidence.  Fairly standard…so far.

Then she went at Patraco’s involvement in SWIG MAT, a DOJ/FBI professional working group of forensic scientists that sets professional standards.  She asked if he was still a member.  He said he left is 2001. Carlson-Lieber asked why he left. Petraco responded, “I was asked not to come back.”  “Why was that,” queried Carlson-Lieber. “I don’t know,” said Petraco.  (Awkward pause)  Is Petraco a rogue scientist banned from his profession’s working group?  We won’t know in trial record, but the doubt was raised.

Then Carslon-Lieber went after Petraco’s disagreements with “the Reeve’s book,” an accepted reference book in forensic science, and got him to admit that scientists tend to disagree.  She then showed him a photo of the crime scene knife, and focused on his description of the “random dry droplets of blood” at the hilt of it.  Petraco admitted that he was not an expert on blood pattern, perhaps undercutting his credibility to some degree.   Carlson-Lieber asked if Petraco did any experiments to determine if a white cotton towel could have created those “dry droplets of blood.”  “No I did not,” said Petraco.

This is important since the defense hit prosecution hair-and-fiber expert Deedrick rather hard during his testimony on this very point.  They said that one of the roles of an expert is to create experiments that will rule out scenarios or evidence.  Whoops, it looks like Petraco didn’t do that either.

All Petraco could say was that it was his opinion that a looped white cotton towel couldn’t have created those dry droplets of blood, but he had nothing to base his opinion on.  She also got Petraco to admit that he could not exclude the white cotton fibers on the knife as coming from the towel.

Carlson-Lieber then focused on the the fibers taken from the knife.  Then she asked what Robert’s T-shirt was made of. He said it was “99 percent cotton, 1 percent rayon.”  Then she asked if he he found any rayon fibers (which are black fibers) on the slides of the fibers taken from the knife.  He had to admit he found no rayon fibers on the slides, and he even said he looked for them.  This is important to the prosecution because if no rayon fibers were found on the knife, then that could be evidence the knife never came in contact with Robert’s T-shirt.  Petraco even admitted to being “surprised” that he didn’t find any rayon fibers in the slides.

Then Carlson-Lieber dived into his “difference of opinion from Deedrick” on the fluorescence of the fibers. She asked where he did his his analysis of the fibers, and was it at Dr. Henry Lee’s institute,  he said no, it was his “little lab at home.”  Carlson-Lieber punched that line by saying, “your little lab at home.”  She finished that portion of questioning by asking if differences can arise in the fiber analysis by the quality of microscope used.  “Yes,” he said.

In all the fibers slides, Petraco used a blue fluorescent light to see how they reflected, but admitted that he did not use a green light fluorescence, which could show differences not seen under a green light.  He admitted that was the case.  He then admitted that this was the only case he has ever worked on that asked to compare white cotton fibers to another sample.  That seemed such a strange statement in light of the fact that white cotton is such a common fiber, how could he never have come across comparing white cotton fibers before this case?

With Carlson Lieber’s work done, Schertler returned on re-direct.  He pointed out that die on cotton fiber could make a difference, and Petraco agreed.

That was it for the defense witnesses today, as they seemed a little off their game with Leibovitz moving the trial along immediately after her Rule 29 decision.  She called the trial to begin tomorrow at 2:15 pm. Thomas Connolly says he has one witness for tomorrow, and said that on “Monday we will have a pretty seamless day.”  Then Leibovitz asked is “there a chance that you won’t call any witnesses after tomorrow?”  A confusion, perhaps between bench and counsel, as Connolly responded in the affirmative, but then immediately backtracked.

In the end: is it possible the defense may not call any one of its remaining witnesses?  Yes.  Is it possible they may not call any of their remaining witnesses?  “Extremely unlikely,” in the words of Mr Connolly.

We take his word.

Whatever the case,  the defense certainly looked unprepared for today.  They certainly didn’t open big, which would be expected, especially from this defense team. Schertler asked questions of Petraco, yet his testimony largely focused on the tampering charge — which is the knife.  So now that his client is off the hook on tampering, why wouldn’t Bernie Grimm being doing the lift on this witness.

They may be gambling that they want to finish big, but why waste their opening either.  Maybe they were knocked off their game with a speedy resumption of the trial  But they know this judge, and understand that she is impatient.  Why they wouldn’t be more prepared is a head-scratcher.  We’ll see what happens tomorrow.

218 comments for “Day 17: Wrap

  1. Farmer Ginny
    06/17/2010 at 6:11 PM

    Why the late start tomorrow?

  2. TK
    06/17/2010 at 6:12 PM

    ‘Then Liebovitz said, “I am just going to be explicit, just so nobody is shocked, there could be closing arguments on Monday, so people need to be ready.”’

    Wow. I’m shocked. I’d love to know what she does and the rest of us don’t.

    I’m on the edge of my seat, after following this case from the beginning. Thanks again editors for all your work leading up to this, and now your up-to-the minute reporting. Seems like all the mainstream media is suddenly on the bandwagon. Just heard it on WAMU (they got Robert’s name right but they said he was murdered in HIS townhouse. Urgh.)

    • Makes me wonder
      06/17/2010 at 6:26 PM

      I think she is just referring to the fact that since the defense is only calling 5 witnesses (or at least that’s my recollection), that it might be possible to get through all the witnesses by late Monday afternoon, but with sufficient time to still allow for the prosecution to begin its closing argument. Although, could mean possible plea? What do others think?

      • dcbill
        06/17/2010 at 7:22 PM

        would there be closing arguments with a plea?

        • Bea
          06/17/2010 at 8:12 PM

          Makes Me Wonder – I agree that she’s just telling them to be ready to deliver if things go faster than expected. She’s not one for delay.

          DCBill – I seriously doubt all three plead. If they did, and it was prior to the time for closing (say as defense rested), then there would be no closing. But if less than all three plead, there will be a closing for each defendant remaining.

    • Bill Orange
      06/17/2010 at 7:04 PM

      Here’s my take: One or more of the defendants (probably Victor, and maybe Dylan) firmly believed that they were going to be cleared of all charges today. I think that they’re still stunned that this didn’t happen. When the disbelief wears off, that person (or persons) could become a loose cannon and may start shopping for a deal. Everybody else wants to keep that from happening, so there is a very strong motivation to finish this up by tomorrow afternoon. They really don’t want everyone thinking about this over the weekend–there’s too much of a chance for someone to flip on Monday morning.

      • Bill 2
        06/17/2010 at 7:13 PM

        I think it would be fascinating to hear the conversation at their dinner table tonight. It’s easy to imagine that Joe is giving them a pep talk about how they need to stick together.

        • Nelly
          06/17/2010 at 7:44 PM

          It certainly sounds like Joe has been unconcerned about his courtroom impressions and in his own little world. I can’t believe the trial is almost over. A big thank you to the creators of this blog for giving us a place to discuss this baffling case. Robert deserved nothing less. It is heartening to see that so many people care about him and getting to the bottom of his tragic murder. Maybe years from now, behind bars, one of these men will finally tell the truth about what happened.

          • Carolina
            06/17/2010 at 9:02 PM

            You would think they’d get that man some xanax.

          • Former Criminal Sex Offense Prosecutor
            06/17/2010 at 9:37 PM

            I am not counting on the truth coming from the Trouple. What do you think of this possibility..somewhere down the road of time Michael Price, with his history of priors, drug use & relapses, is arrested holding an amount of illegal drugs making him subject to the very frightening sentencing guidelines of current Federal statutes. 25 years mandatory…wouldn’t his court appointed counsel be wise to suggest if Michael knows anything at all that would be of interest to investigators regarding another criminal matter, perhaps the unsolved murder of Robert Wone, that will be the time to make a deal? No issue with double jeopardy as to the current charges..There is no statute of limitations on murder. All they have to do is bide their time.

            • bonsource
              06/17/2010 at 11:35 PM

              fat chance in hell (as in a snowball’s chance) . . .

            • DonnaH
              06/18/2010 at 1:24 AM

              Depending, of course, on the extent of his involvement with the murder, which I regard as likely, partly because I believe that if it was just Joe and Dylan, it would be hard for them to dispose of the evidence in the short time they had. However, I have a hard time imagining Joe just calling Michael a little after 11 and asking him to “come over right now, I need you to run an urgent errand.” I think, given Dylan’s skill with needles and access to drugs, Joe might have wanted his help with injecting Robert, and therefore arranged his involvement in advance. But if Michael was involved in the actual murder, or even the decision-making that led to the murder, or simply had no proof to offer against possible counteraccusations by Joe and perhaps Dylan, It doesn’t seem like he’d have much to gain. –Or?

            • AnnaZed
              06/18/2010 at 11:20 AM

              If Michael is a link in this chain, he’s the weakest one.

      • tucsonwriter
        06/18/2010 at 12:55 AM

        Not a chance. If only.

  3. Leo
    06/17/2010 at 6:23 PM

    I don’t think anything “secret” is going on re. the remaining witnesses that the Judge knows and we don’t. It’s just that the defense may choose not to call anyone else, believing that they don’t need to. Judge Leibovitz was careful to note in her ruling on the Rule 29 motion yesterday that her ruling was not a verdict on anything and should not be taken as an indication of how she is going to rule when all the evidence is in.

    If the rest of the defense witnesses are as unimpressive as this guy seemed to have been, then they would be wise to quit now. I would imagine that they will call at least DiMaio though, given the long reading Connolly (I think it was him; could have been Schertler) did from his expert report yesterday and getting Dr. Fowler to comment on DiMaio’s conclusions. That Henry Lee fellow sounds like a joke, though, so maybe he won’t appear. We shall see! I really want to attend the closing arguments, so I’ll have to be sure I can rearrange my schedule for Monday to be there if necessary.

  4. Hoya Loya
    06/17/2010 at 6:27 PM

    I thought it was going to be easy for the defense to override pork loin guy Deedrick’s less than overwhelming expert testimony. Apparently not.

    Good fiber experts must be hard to come by.

    Closing Monday? Interesting.

    • Doug
      06/17/2010 at 6:36 PM

      No, not closing Monday. A bit of a confusion. “Extremely unlikely” says Mr. Connolly. Seems reasonable…notably since the government raised the possibility of a rebuttal witness
      Doug, co-editor

    • Carolina
      06/17/2010 at 7:18 PM

      Did you find it interesting that Dr. Fowler likened human muscle tissue to steak? I can’t believe that was coincidence.

      • Greta
        06/17/2010 at 7:51 PM

        Didn’t Fowler make a reference yesterday to something washing down the drain? I thought that was another double entendre, given that many believe that Mr. Wone’s blood was washed down the drain in Swann St. by the defendants. The defense bench squirmed. Did anyone else notice this?

        • Leo
          06/17/2010 at 7:55 PM

          I did not notice that; but remember when he was asked to quantify something (maybe the number of autopsies he’s done or overseen or the number of cc’s of fluid in something), and he gave a number, which he indicated was an approximation, “but close enough for government work.” That brought down the house, since he, the Judge, the prosecution team and the detectives are all, of course, government employees. I noticed the defense didn’t really laugh.

  5. Bea
    06/17/2010 at 6:31 PM

    They’d better get in the oh-so-special knife that lived in Seattle!

    I suppose that this “seamless” Monday and the possibility of doing Closings on Monday is not a surprise to the prosecution. But it does seem odd. Today’s guy did not sound impressive, what with getting run out of the professional organization for unknown reasons nine years ago and use of “his little lab at home.”

    • Bill Orange
      06/17/2010 at 6:55 PM

      The “little lab at home” comment was just foolish, but it might not be as bad as it sounds. It may very well be a “little lab at home” that has a $50,000 microscope in it. But it was still a really stupid thing to say.

      • Carolina
        06/17/2010 at 7:00 PM

        I agree. It’s also true that with the exception of the microscope, one doesn’t need a million dollar lab to come up with basic findings.

      • CDinDC (Boycott BP)
        06/17/2010 at 7:26 PM

        Well, he said it. she just repeated it. “My lab at hoome” would have sounded a bit more professional. He cut it down himself, and she jumped on reinforcing it.

        • Leo
          06/17/2010 at 7:57 PM

          She is a good trial lawyer, since she didn’t keep on questioning him and thus allow him to describe the precision equipment or fancy machinery he’s got in there. She just repeated his statement and left it there, sounding silly and trivial. Good job!

          • CDinDC (Boycott BP)
            06/17/2010 at 8:03 PM

            Indeed!

            • tucsonwriter
              06/18/2010 at 12:58 AM

              So far is seems like the first time the prosecution has had a win.

              • Clio
                06/18/2010 at 5:09 AM

                Finally! I may even place a Strauss waltz on my
                dance card tonight in Glenn’s honor.

      • Kate
        06/17/2010 at 8:45 PM

        Evening all-

        Dr. Baden, one of the defense specialists, has a “little lab at home ” or in very close proximity as I recall from his testimony in other cases.

        That being said, he frequently testifies in high profile, high $$$ cases. I’m anxious to hear his testimony as he has written definitive books on the subject of forensic medicine.

        As for Dr. Lee, I used to admire him, but not so much after the Michael Peterson and Spector case.

        Just ask Bea for an eloquent rehash – awesome!

        • Bea
          06/17/2010 at 8:56 PM

          Will Baden be testifying for the trio? Had forgotten that if I ever knew it.

          • Kate
            06/18/2010 at 9:04 AM

            Cheers Bea,

            Dr, Lee and Dr. Baden were in court on one of the early days of the trial. I believe the Editors noted they were sitting together and that they were possible defense witnesses.

            Later today, I’ll try to dig up their report. Now you’ve got me thinking I conjured it up in my wee brain.

        • Liam
          06/17/2010 at 9:59 PM

          I thought I recall reading that Henry Lee would testify for the defense. Am I imagining that?

        • tucsonwriter
          06/18/2010 at 1:01 AM

          I am on a couple of Board of Directors for non-profits and a conflict of interest question came up today at a Board meeting. It seems to me that these people testifying in these high profile cases have a conflict of interest by testifying in more than one case. They have set a precedent and they are getting paid – ergo – conflict. They are not impartial.

          • Leo
            06/18/2010 at 7:35 AM

            That’s something the opposing counsel always brings out on cross–just how many cases he’s testified in, and what his fee has been and is in this case, etc. Judges notice when someone is a highly paid “hired gun.”

            • Carolina
              06/18/2010 at 9:20 AM

              Serious question here. Can a judge also take into account Dr. Lee’s failure to turn over important evidence in the Spector case, in which he either lost or consciously destroyed the shooting victim’s fingernail?

          • Bill Orange
            06/18/2010 at 8:47 AM

            I don’t think that argument is going to hold up. Except for the defendants, everyone involved in the trial, including the judge, is getting paid for their service. Your argument would disqualify every judge after their first bench trial!

            • Carolina
              06/18/2010 at 9:21 AM

              Yes, but she’s not getting paid by the prosecution or the defense.

              • Bill Orange
                06/18/2010 at 9:32 AM

                She’s being paid by the government, which is also funding the prosecution.

                • Hoya Loya
                  06/18/2010 at 9:46 AM

                  Bill O.:

                  It can indeed factor into weight and credibility if an expert is seen as too much of a hired gun.

                  For instance, Fowler had credibility because of his work for the state of Maryland — he is not solely a professional expert witness. An expert who is perceived as testifying too regularly, particularly as an exclusive prosecution or defense expert, will have less credibility. I think Deedrick and Petrarco both suffer in this regard.

                  Dr. Lee’s impact in the O.J. case was due to the fact that it was one of the first times (the first time?) he had testified for the defense — touted as a sign that he found the forensic errors to be truly compelling. Now that he has testified repeatedly for the defense, with some unfortunate results as noted here, his testimony in a case doesn’t carry the same weight.

                  When I worked for a top notch plaintiff’s firm in Connecticut, a huge amount of time was spent locating and interviewing “fresh” experts who were not tainted by excessive past testimony. In addition, the really super, reliable experts in the existing stable were used sparingly, only in the cases for which they were most suited and needed, so that they wouldn’t be “burnt out” (so the defense wouldn’t be able to ask “how many times have you testifies for Attorney X?” and get a high number).

      • DavidR
        06/17/2010 at 9:57 PM

        His little lab at home could be a big magnifying glass and a bright light too. I have all that so I have my own lab here too LOL

    • Bill Orange
      06/17/2010 at 7:10 PM

      They can probably get away with that, given that this is a bench trial. I can tell you that, as a juror, I am well aware that I’m being asked to render a verdict based on the evidence, and the opening and closing statements are NOT evidence. That being said, I get very irritated at lawyers who make claims during opening statements and do not back them up during the trial. It REALLY colors my opinion of your closing statement.

      • Former Criminal Sex Offense Prosecutor
        06/17/2010 at 9:33 PM

        Bill O,
        You are my favorite commentor. Every remark you make is both intelligent & intriguing, you know Joe Price from college, you have been a juror twice, you seem to be so very well grounded in medicine (your detailed & accurate description about what happens when blood is drawn leads me to suspect you are possibly a physician despite being willing to sit on 2 juries), you remember what remarks are not supported by the evidence that were made in the opening statements…obviously, you never went to law school.
        In law school, I was taught that studies demonstrated that polling mock juries as to their vote after the opening statement alone versus after hearing the case in its entirety yielded the same results. Depressing, no? The implication being that you win the case in your opening statements, not in the presentation of evidence.
        As a practical matter, although you are not allowed to ask the jury anything after a case here in Maryland, I would hang out in the bathroom hoping jurors would then feel comfortable approaching me with any questions they felt were unanswered because I wanted to learn from them. The only questions I was ever asked had to do with my hair & my clothes. Not about the evidence, why I wore my hair up or down, what outfits really rocked. Sigh. Wish I had jurors like you. No, I never lost a jury trial, I just wanted to know how I could improve my presentation. I do so hope the prosecution reads not only this blog but your insightful fact driven remarks in particular.

        • chilaw79
          06/17/2010 at 10:06 PM

          Having served on a couple of DC juries myself, the lawyers are on the jurors like flies. I found it annoying, especially the questions about whether my vote might have changed if I heard a certain piece of evidence (usually something I figured the judge would not let us hear).

        • Bill Orange
          06/17/2010 at 10:49 PM

          I am indeed a physician! And yes, I obviously didn’t go to law school. 🙂

          The last jury I was on included two bankers and a lawyer. It was a second degree murder trial with pretty solid evidence (two eyewitnesses, and the defendant confessed to his cellmate and included information that only the murderer would’ve known). The jury conversations prior to deliberation consisted of a lot of idle gossip (i.e., the prosecutor’s ultra-conservative fashion choices, the defender’s ties, whether the judge used botox, etc.), since we weren’t allowed to talk about the substance of the trial.

          Afterwards, the focus was on whether or not we could have found reasonable doubt if the defendant (who was poor) had had a better lawyer. I didn’t really think so, and I also didn’t think we had much basis to judge the quality of the lawyer. Yes, I thought he was a dork, but he had a horrible case to work with, so it was really hard to say he wasn’t a very good lawyer. Anyway, he approached several of the jurors after the trial to ask how he did, and they all just made small talk about his ties. I guess the moral of the story is that most jurors aren’t going to give you very good constructive criticism right after the trial.

          As to your other point, I think that both the prosecutors and the defense teams really should be following this blog. I don’t think they should treat it as gospel, but you get a lot of “eyes”, many of them from experts in various fields, and it’s all totally free of charge. It’s like having expert consultants and jury consultants all rolled into one. They may not think the advice is always the greatest, but you can’t beat the price!

          • tucsonwriter
            06/18/2010 at 1:10 AM

            That was a fun interchange. Cute. I love the fact that this site is so informative. I think what happens in the real world is so different from even the John Grisham novels of crime…… Hopefully this site is helping people to parse the difference.

        • Also from the Post Story
          06/17/2010 at 11:29 PM

          > Depressing, no? The implication being
          > that you win the case in your opening
          > statements, not in the presentation of
          > evidence.

          Or, alternatively, it implies that opening statements match what the evidence later shows.

    • Tarfunk
      06/17/2010 at 8:00 PM

      I posted yesterday that surely the defense would want to produce that knife from Seattle. But with the tampering charges dropped against Victor and Dylan, I’m now wondering what value there would be in producing it. It would seem to be most damning against Dylan, since the set with the knife missing was found in his room, but he’s innocent of tampering now, so the missing knife takes on a ‘so what?’ quality. Do you think producing it could have some positive impact for Joe? Somehow I think it was never going to be produced in the first place.

      • Bea
        06/17/2010 at 8:18 PM

        If the Seattle knife is NOT introduced with a credible story then the judge will be surprised and quite irritated, in my opinion, as a trier of fact here. That’s a big statement in Opening as a big dent (or what has the appearance of a big dent) on the prosecution’s case. Surely it will come in. And Tarfunk, it still matters as to Dylan in my view as to the whole of obstruction and conspiracy. The defense can’t risk that particular big fat goose egg.

        • Tarfunk
          06/17/2010 at 8:43 PM

          Thanks, Bea. Bringing up the existence of a long-lost knife in Seattle has always seemed like a stretch to me. Who gives away a 3-piece carving set but is so attached to one of the knives that they leave it out of the set??? Must be a knife so magical that it can stab someone without drawing blood!

          But seriously, like most of us, I’m on pins and needles waiting to see how the remainder of this case is going to play out. I’m a local, and plan to take a vacation day on Monday to be in court. I hope I’ll be so lucky as to hear closing arguments.

          • Kate
            06/17/2010 at 8:50 PM

            Tarfunk – see you there Monday.

            Cheers,
            Kate

            • Bea
              06/17/2010 at 8:55 PM

              Wish I could fly in. Seriously. Tarfunk and Kate, please ‘represent’ us all.

              • Kate
                06/18/2010 at 9:13 AM

                I wish you could, too. It would be great to meet you in person.

          • Rapt in MD
            06/18/2010 at 12:19 PM

            Going to try to be there too!

        • Bill Orange
          06/17/2010 at 10:56 PM

          I don’t think there’s going to be a credible story. I think that when Dylan was “explaining” what happened that night to his mother and father, and they asked him where the knife was, he said something along the lines of, “But that knife wasn’t even in the set when you gave it to me! Don’t you remember? It’s ALWAYS been missing!”

          In any case, Schertler has to realize how awful it’s going to look if he puts Dylan’s mother up on the stand to vouch for him. I don’t think he’s going to bother.

          • Former Criminal Sex Offense Prosecutor
            06/18/2010 at 12:03 AM

            The 3 alibi witnesses you can always count on popping up, are the defendant’s wife, the defendant’s girlfriend, AND the defendant’s mother. In a bench trial it makes no sense to drag your mother to the stand to perjure herself to a Judge long onto the game & in the instant case, both the wife & girlfriend are already blown up as the co-defendants.

            • tucsonwriter
              06/18/2010 at 1:15 AM

              Oh ddddd ear dear… Joe Price is the girlfriend.

              • Former Criminal Sex Offense Prosecutor
                06/18/2010 at 1:43 AM

                How so? Victor & Joe were registered domestic partners, yet Dylan told the police he was married to Joe as well, so no one of the three was “the girlfriend”. The joke was my stating they had “blown up” the usual array with the unusual arrangement.
                From the testimony to date, apparently Scott Hixson was the closest to being a “girlfriend”, albeit of both Dylan & Joe.

                • Dr20854
                  06/18/2010 at 6:22 AM

                  I wonder if Dylan was instructed by Joe to say they were married to try to invoke some kind of spousal immunity. Maybe hoping that PC and dancing around their sexual orientation would override the fact that polygamy is illegal.

                  • AnnaZed
                    06/18/2010 at 11:38 AM

                    Good point, Joe may have reasonably thought (and probably been right) that the MPD members would be so squeamish about any homosexual relationship that they would not question it.

              • Carolina
                06/18/2010 at 9:28 AM

                Excellent Piglet, I must say.

      • Carolina
        06/17/2010 at 8:23 PM

        Much like Joe’s lie detector test. Much promised, nothing given.

        • Elizabeth
          06/18/2010 at 12:08 AM

          Carolina – please point me to the thread. I have heard of Dylan’s lie detector test often, but not Joe’s. A little help if you are not too worn out. Thanks.

          • DonnaH
            06/18/2010 at 1:04 AM

            If I recall correctly, Joe agreed in his interview to take a lie detector test but later reneged on taking it–hence Carolina’s point.

            • Elizabeth
              06/18/2010 at 1:17 AM

              thanks Donna!

          • Carolina
            06/18/2010 at 9:30 AM

            DonnaH had me covered! Many of us don’t think he intended to take a test, but simply said he would to put another check mark in the “seemed innocent” column.

          • AnnaZed
            06/18/2010 at 11:52 AM

            It’s in the text of Joe’s interviews. Joe says that he will take a lie detector test then subsequently produces a lot of bluster and protesting related to Dylan and succeeds in derailing the conversation then blustering his way out of the room.

            • AnnaZed
              06/18/2010 at 11:53 AM

              It’s quite artfully done actually.

    • AnnaZed
      06/17/2010 at 9:42 PM

      The elves must have the special knife.

  6. Bill Orange
    06/17/2010 at 6:53 PM

    “Petraco even admitted to being “surprised” that he didn’t find any rayon fibers in the slides.”

    Um, didn’t they prep this guy? I’m sorry, but this is a multimillion dollar defense. That should simply not have happened.

    • Carolina
      06/17/2010 at 6:58 PM

      Maybe good experts aren’t for sale after all? We can hope. First witness aside, we can’t rule out a strong finish like the prosecution, but again, we can hope.

      • Bea
        06/17/2010 at 8:21 PM

        Good point, Carolina. I don’t want any expert to lie, and if this was the best he could do, good for him for telling the truth.

        In addition to the points raised here (1. no rayon fibers; 2. “my little lab at home”; 3. being kicked out of the forensics fiber guys organization for unknown reasons nine years ago, I think there’s another big hit. Did his little home lab not have both the green and blue fluorescence lights/scopes that were necessary?

        Not a good start for the defense, or so it would appear from here.

        • Themis
          06/17/2010 at 8:57 PM

          My best guess is that they could have gotten a better witness, fiber analysis is still a subjective field of forensic science in many aspects, but they simply didn’t vet him or prep him. Because if this is the best you could get, you wouldn’t put it on as affirmative evidence. You’d just cross the government expert. When you put on junk evidence, you open yourself to rebuttal by the state and give them the last word on an issue. And you certainly don’t open the defense case with testimony that equivical. Not smart tactically or strategically.

          It’s just trial practice 101 to review your expert’s CV with him and do your own due diligence. As Carolina said in another context, Google is your friend. Westlaw and Lexis are available, too. Also, you ask him about potential cross-exam questions. I guess the dream team didn’t follow the Michael Peterson case where the state’s expert blew up on them.

          • Bea
            06/17/2010 at 9:12 PM

            Agree, Themis. It happens so often with these ‘dream teams’ that it seems they feel the need to over-promise and find themselves under-producing. Michael Peterson, Scott Peterson as well, Specter. . .

          • Bill Orange
            06/17/2010 at 11:02 PM

            I really think that they were banking on the whole case being tossed out today, and they just weren’t ready to proceed with their defense.

            • Carolina
              06/18/2010 at 9:31 AM

              I cannot imagine anyone being convinced of that. If it’s true, they’re not getting the defense they’re paying for.

        • NoName
          06/17/2010 at 9:54 PM

          Don’t read more into this than he said, and is it an exact qoute?

          I read that he wasn’t kicked out of a Professional organization, but a working group that sets standards for such organization. He may have just been a total (but knowledgeable) a-hole, obstreperous, argumentative, etc.

          None-the-less, one has to wonder.

          • ccf
            06/17/2010 at 10:11 PM

            Good point.

            I am a contractor and changes job frequently. One time may years ago I worked with another contractor at a client who knew his stuff but was a complete a-hole. I got along with him well but he looked down upon the employees in that company whom he thought were incompetent.

            When the project was over there’s another one coming up, but I already had another job lined up. The manager asked me if the reason I was leaving was because of that guy. He told me that they were not keeping him because other contractors threatened to leave if he stayed. (BTW, I don’t think that’s very professional.)

            My point is that being congenial is more important than being brilliant.

          • Carolina
            06/18/2010 at 9:32 AM

            That work group IS the professional organization.

    • weaver
      06/17/2010 at 6:58 PM

      Maybe that’s the best the million dollar defense could get?

      • Greta
        06/17/2010 at 7:48 PM

        I’ve seen this happen before in big cases – sometimes, even with a ton of money, if the evidence/facts are bad, the only expert witnesses who will say what the defense wants them to say are sorta sleazy and weak. The expert witnesses with good reputations/high standards are not going to risk it for one little case & have their career as an expert witness destroyed. But the lower-tier experts (with already tarnished reputations) will say pretty much anything for their paycheck.

        • Carolina
          06/17/2010 at 8:25 PM

          We’re lookin’ at you, Dr. Lee.

          • Kate
            06/17/2010 at 9:01 PM

            Yes, Carolina –

            Dr, Lee used to be a big shot, but after the M. Peterson and Spector trials, I’m not so sure.

            As for Dr.Baden, he’s still quite a force to be met, if indeed he’s still in the mix.

            Thank you,
            Kate

        • Bea
          06/17/2010 at 8:54 PM

          Anyone know if Dr. Henry Lee is really going to testify and/or spit ketchup on behalf of the defendants? I always wondered if that was some ploy given his celebrity status (which has become fairly tarnished before and after the Phil Spector trial).

          We know we have the two cardiologists who will play the cardiac tamponade theory for what it’s worth (to see if Dr. Fowler’s fairly definitive statements can be shaken) to try to account for the lack of blood at the scene.

          The Seattle knife owner will (better) testify.

          Anyone know what the defense has in store to account for the delay in reporting? That seems to be the biggest untouched (untouchable?) major prosecution “point”. Even if the defendant(s) haven’t been shown beyond a reasonable doubt to have planted a knife or cleaned up blood, and even if the cardiac tamponade is floated as viable reasoning for the lack of blood, it seems to me that just sitting on one’s hands for 14-34 minutes before calling 911 is an untouched fact.

          I suppose in Closing the defense will argue that the Thomases were both incorrect, that Victor screamed around 11:47 or so. Is there any way that they’d have rustled up some neighbor to testify to a later scream – sure seems like we’d have heard about it during Opening. But it’s getting to be desperation time. . . (not that the prosecution is “winning” but that the defense is likely really feeling the need to put on a good showing).

          • Tarfunk
            06/17/2010 at 9:10 PM

            The Thomases seemed unequivocal that they heard the scream during Maureen Bunyan’s 11pm newscast. Maureen Bunyan is a Washington, DC mainstay. If they say Maureen was on when they heard the scream, then Maureen was on. I don’t know how in tune Judge Leibovitz is with local network newscasting, but I can promise you no jury would ever doubt the Thomases on this point.

          • Bill Orange
            06/17/2010 at 11:09 PM

            Small point: I’m not sure who the defense witnesses are, but I’m pretty sure one of them is a cardiac surgeon, NOT a cardiologist. The distinction is important. The stereotype of the cardiac surgeon is that they’re one of the most arrogant types of doctors out there. He has the potential to make Joe Price look modest by comparison.

            • AnnaZed
              06/17/2010 at 11:12 PM

              Just as a point of possibly psychological interest, Dr. Needham Ward is a cardiac surgeon as well.

              • Former Criminal Sex Offense Prosecutor
                06/18/2010 at 2:18 AM

                That is a very interesting observation. Cardiac surgeons do have raging egos & make enormous amounts of money compared to a family practitioner. Here in Baltimore, there is a shocking scandal involving, well all of them: http://www.baltimoresun.com/health/bs-md-st.joseph-stents-lawsuits-20100522,0,6687193,full.story Cardiac surgeons, worse than you can possibly imagine. MidAtlantic Cardiovascular Associates, the region’s dominant cardiology practice, they called themselves the “superheros” & threw themselves “The Superheroes’ Ball”, while raking in over 2 mill a year a piece for performing surgery that was the result of deliberate fraud.

            • Former Criminal Sex Offense Prosecutor
              06/17/2010 at 11:47 PM

              It is Farzad Najam, MD FACS. “A defense expert, Dr. Farzad Najam, associate director of cardiac surgery at The George Washington University Hospital, is expected to testify that a stab wound to Wone’s heart would have caused immediate incapacitation and that the wounds would have caused internal bleeding more than external bleeding.” Agreed that surgeons as a group are extremely annoying. My husband, double residency trained as well as double board certified (med school Georgetown Hoya Loya)loves to point out that for example, all orthopedic surgeons do is “carpentry”. Najam describes himself as “a renowned surgeon”, so this should be a real trip.

              • can'tstopreading
                06/18/2010 at 12:02 AM

                I think his testimony may provide an explanation for the lack of blood at the scene. But even if you believe this, there’s missing blood. The autopsy report and/or the medical examiner’s testimony accounted for the blood that accumulated in the chest cavity and there were still 2 liters missing.

                I think the defense will blame sloppy EMTs, but I doubt it will be backed up by any evidence. Whereas we know there are unexplained pre-mortem needle marks and the dogs reacting to the drain and the lint trap. Was the dog’s reaction entered as evidence?

                • Carolina
                  06/18/2010 at 10:23 AM

                  Sloppy EMT’s would have remembered cleaning up a lot of blood. They have no dog in this fight, so no reason not to mention the mess.

                • can'tstopreading
                  06/18/2010 at 10:30 AM

                  Carolina,

                  The tamponade (sp?) would mean that there would not be a lot of blood at the scene to clean up. By sloppy EMTs I meant that they may have drained blood from the chest cavity (accumulated due to internal bleeding caused by the tamponade) during life saving efforts, but not documented the amount in their notes/records.

                  I did not mean to imply that the EMTs were sloppy at the scene.

                  • chilaw79
                    06/18/2010 at 10:56 AM

                    Can EMTs insert a chest tube to drain blood? I would think this is beyond their capabilities.

                • Rapt in MD
                  06/18/2010 at 12:26 PM

                  This is something that concerns me also – I know you didn’t mean the EMT’s but the hospital staff in your post…
                  I think that it will be floated by the defense that an essentially dead trauma victim being rushed into the ER may have a number of procedures done that aren’t maintained in the notes and I could really see a chest tube draining a few liters of blood off not being noted. My opinion only, no medical background.

                  • Carolina
                    06/18/2010 at 12:46 PM

                    They had an ER nurse whose job it was to record every procedure. Someone, I believe Lawmed, called that into question and said he believed the wounds on the ankles were consistent with life saving efforts. However, Dr. Fowler disagrees. It seems like he would know if there was reason to put a line in an ankle, but maybe Lawmed is better trained in trauma.

              • Bill Orange
                06/18/2010 at 12:07 AM

                Here’s his website:

                http://www.gwhospital.com/Hospital-Services-A-N/The-Cardiovascular-Center/Farzad-Najam

                He comes off as much better than I was expecting, to be honest. The charity work is impressive. Should be interesting.

                • Former Criminal Sex Offense Prosecutor
                  06/18/2010 at 12:14 AM

                  They ALWAYS do charity work. It is part of the bit.

                  • Bill Orange
                    06/18/2010 at 12:30 AM

                    He’s a cardiac surgeon. They’re pretty much in the same category as pro-athletes–he gets full credit for the charity, even if his involvement is totally cynical, for the simple reason that most of them can’t even be bothered to fake it.

                    • Carolina
                      06/18/2010 at 10:23 AM

                      And then there’s that nice tax advantage.

              • Doubtful
                06/18/2010 at 1:18 AM

                Oh pulleeze, get over yourself!

                • Carolina
                  06/18/2010 at 9:37 AM

                  Well, that added to the discussion tremendously! Would you also like to inquire about Robert’s possible character failings that may have brought on assassins?

          • interestedobserver
            06/17/2010 at 11:23 PM

            Bea: During today’s discussion about the schedule, Grimm did state that one of his witnesses is coming back from a trip to China. Just guessing that he was referring to Dr. Lee, but no other indication other than that statement.

            • Bill Orange
              06/18/2010 at 12:03 AM

              I’ll take “Things That Aren’t Going to Go Over Well with This Judge” for $1,000, Alex.

  7. Carolina
    06/17/2010 at 6:56 PM

    I mentioned this on the previous post, but the fiber thing is not being given its full weight. There is a difference in how cotton fibers are spun depending on their intended use and unless there is nothing but the barest fluff of lint, an expert should be able to tell the difference. I assumed there was going to be some out of the park homerun on this from the defense, but boy was I wrong.

    No rayon at all? Even at 1%, something should show.

    Why did no one look at transfer patterns from shirt to bed? Shirt to knife? towel to bed? The twist on a terry fiber is going to leave different patterns than an interlock knit tee.

    • Carolina
      06/17/2010 at 9:09 PM

      Spoke to someone who saw the slides. There is little more than fiber, so it would be nearly impossible to determine twist, ply, etc. Color though, color’s still there in the rayon, and none was present It’s easy enough to figure out with a microscope if any of the the fibers were rayon because of the lobe shape.

      • chilaw79
        06/17/2010 at 11:07 PM

        You sound like a better fiber expert than the one the defense had.

        • Carolina
          06/18/2010 at 9:40 AM

          My dad helped invent Nylon as a silk substitute (originally called Klis, silk spelled backwards)for Dupont Fibers are in my blood. No pun intended.

      • Bill Orange
        06/17/2010 at 11:26 PM

        I didn’t think this meant much when the prosecution presented it, but I think the defense has totally botched both the previous cross-examination and now their own expert. The defense doesn’t need to discredit the fiber evidence if they can make it consistent with the stories of the defendants.

        In fact, the only person’s story they have to worry about is Joe’s, since he’s the only person who handled the knife, and he said in his statement that he wasn’t really sure if he pulled it out of Robert or if he just moved it off of him. Can they make Joe’s statement fit with the evidence? I think so. The story was that they found Robert stabbed, they applied pressure to the wound with the towel, and at some point Joe Price either removed or moved the knife.

        The defense should therefore argue that what probably happened is that Joe tried to apply pressure to the wounds with a towel, and the knife–still in the body–was blocking the towel, so Joe automatically pulled the knife out of the body so that he could put pressure on the wounds. You could probably just say that he wrapped the towel around the knife when he pulled it out, in order to “plug” the wound, inadvertently destroying the fiber evidence.

        You could say that my explanation is a bit dubious, but I think it’s a hell of a lot better than what happened today.

        • tucsonwriter
          06/18/2010 at 1:28 AM

          Wow.

          “the only person’s story they have to worry about is Joe’s, since he’s the only person who handled the knife,”

          From the above – quoted……

          • tucsonwriter
            06/18/2010 at 1:29 AM

            FYI the prosecutions’ special guy said what he thought about applying pressure and how that would distribute blood – none of which correlated with reality.

            • Bill Orange
              06/18/2010 at 8:56 AM

              That’s not the fiber evidence, though. My point is that the defense is now in a position where the judge has just told them that she could see how the evidence has proven beyond a reasonable doubt that they’re guilty. Their job now is to come up with reasonable doubt, and the best way to do that is to either (a) come up with a story that fits the evidence or (b) dispute the evidence. In the case of the fiber evidence, they went with option (b), and their expert just said that he was surprised by the evidence, given their stories.

    • BenFranklin
      06/18/2010 at 11:02 AM

      Photos taken by the government lab show plenty of black rayon fibers on the knife after it was first recovered. The photo resolution was adequate to see them easily on enlargements.

      The government lab stored the knife in a way which allowed the fibers to be lost, destroyed, or degraded before they could be analyzed.

      The prosecution’s Deedrick didn’t find any & the defense’s unimpressive fiber guy didn’t find any.

      The lost fibers on the knife is another technical flaw in the evidence that means the testimony about the fibers from both sides is worthless, and there’s your reasonable doubt.

      • Carolina
        06/18/2010 at 12:48 PM

        BS, I mean, BF, please tell me how you saw the knife in its pristine, post-murder state?

  8. Danali
    06/17/2010 at 7:32 PM

    Well, that explains the fiber test comparison…

    I’m curious about the SWIG MAT departure!

    “Why were you unpopular with the Chicago Police Department?”

    • chilaw79
      06/17/2010 at 8:23 PM

      What is Petraco’s connection to the Chicago Police Department? Petraco worked for the New York City PD and he now is an assistant professor at John Jay College in New York (which has a good forensic science department).

      • Carolina
        06/17/2010 at 8:29 PM

        It’s a line from Midnight Run.

        • chilaw79
          06/17/2010 at 10:09 PM

          These types of movie commentaries always mess me up. I did read today that the Vatican gave its stamp of approval to the Blues Brothers as a good Catholic movie.

          • Kate
            06/18/2010 at 9:36 AM

            Thanks for that Chilaw.

            It’s good to know that I’m free from the oft-repeated sin of viewing this particular film.

            Kate.

          • Carolina
            06/18/2010 at 12:50 PM

            The quote was very apropos. You should enjoy the film.

  9. New Alias
    06/17/2010 at 7:47 PM

    Here’s a (probably) dopey question… after the defense rests, how long will a judge customarily take to render her verdict?

    • Leo
      06/17/2010 at 8:01 PM

      Someone will have to review Judge Leibovitz’s decisions to see how speedily she moves her docket along from trial to decision. For a 4-week trial, you’d expect to have to wait a bit, but given the speed of her ruling on the motion for acquittal, maybe she’s been keeping up as the trial goes along. Could be weeks, could be months.

      • chilaw79
        06/17/2010 at 8:26 PM

        I took a look at cases that were appealed for which she acted as judge. My impression is that she keeps up. The only thing that may slow her down is writing an opinion (assuming she wants to do that).

        She does seem much better versed in criminal law than civil law and she can be bold from what I read.

        It does not seem like she is reversed often, but it is not a huge sample. She seems to have heard a variety of civil and criminal cases.

        • Carolina
          06/17/2010 at 8:31 PM

          Any idea what’s her percentage of reversals on appeal?

          • chilaw79
            06/17/2010 at 8:47 PM

            I will see if I can find the statistic. My impression is that her rulings are not appealed that often (which is probably a more meaningful statistic).

          • chilaw79
            06/17/2010 at 10:11 PM

            Ugh, I may have to calculate this myself.

            I did find out that only about ten percent of felony criminal cases in DC are tried before a judge. Of those, the guilty to not guilty ratio is about 7 to 1.

            Of course, past performance is no guarantee of future results.

            • Carolina
              06/18/2010 at 10:31 AM

              No, but to some degree wouldn’t it indicate how thoroughly she not only knows the law as it pertains to evidence, but also how well she understands and applies it?

              • chilaw79
                06/18/2010 at 10:59 AM

                Judge Leibowitz was a prosecutor in DC for many years, including a stint as a homicide prosecutor. I think she knows evidence and criminal procedure backwards and forwards.

    • Bob
      06/17/2010 at 8:26 PM

      It isn’t a stupid question. Non-lawyers would like to know what the usual procedures for the unusual procedure of a bench trial.

    • chilaw79
      06/17/2010 at 8:50 PM

      While I do not practice in the criminal law arena (or, at least have not done so in years), my view is that judges issue a verdict faster than juries. Juries have to review the facts, develop a consensus, and eat lunch. Plus, juries do not have law clerks.

      I would be interested in finding out what some of our resident defense counsel think is standard.

      • Kate
        06/17/2010 at 9:14 PM

        Chilaw – that was great!

        Thanks,
        Kate

      • Themis
        06/17/2010 at 9:44 PM

        How much time it takes the judge to decide will likely depend upon: (1) whether she is required or chooses to make specific findings of fact (defendants have to ask in federal court under Fed.R.Crim.P. 23 though it may be different in DC); (2) whether she has started working on tentative findings, which would not be improper as long as she kept and open mind throughout the presentation of evidence and didn’t reach a decision as to guiilt or innocence until the evidence concluded; and (3) how extensive and tight she wants her findings to be. Without knowing more about her, I wouldn’t make any presumptions other than that she will follow the law, be scrupulous about the facts, and be as efficient as she can possibly be under the circumstances.

        • Leo
          06/18/2010 at 7:53 AM

          Given how many times she has asked the prosecution to be specific about what facts they have proven, and what inferences she should make from those facts, I would imagine she’s been keeping a list and annotating it as the trial proceeds. Of course, I don’t know that the prosecution has ever actually done what she has asked them numerous times. Possibly in their pleading filed to rebut the Rule 29 motion, they listed their facts. Maybe the eds. will post a copy to the site at some point.

  10. mw
    06/17/2010 at 8:09 PM

    I think the plea ship has sailed at this point. Obviously, there’s no reason for the prosecutors to deal unless the murder can be “solved” – but whose testimony is going to be so compelling as to guarantee a conviction of murder for someone? Whoever turned could be easily attacked on cross regarding the deal they got, and they wouldn’t have much credibility even aside from that (assuming nobody can highlight any specific, independent evidence).

    • Bea
      06/17/2010 at 9:25 PM

      This is essentially a repeat of my post yesterday (or was it the day before?) – if one of the defendants who did NOT stab Robert Wone to death was willing to deliver 1st degree murder charges against another defendant (or an unindicted third party), he would STILL get a deal in my opinion. Sure there would be tough cross exams but SO much would be disclosed – what the plan really was, where the knife was, who went to get the plant knife, what was discussed, where the cameras went, what the conversations were . . . a treasure trove of evidence in my opinion.

      And before it’s posed again, I do think one has a shot at first degree if in fact a deliberate decision was made to stab Robert Wone rather than face charges: the precision of those wounds speaks volumes about the cool hand and cold heart of the murderer. Dispassionate incarnate.

      • Bill Orange
        06/17/2010 at 11:34 PM

        I agree that at least two of them (and possibly all three) can still cut a deal. Right now, I think they can still deal even if all they can do is secure convictions of the others for obstruction of justice. I don’t think the prosecution has this case in the bag yet, and it would be stupid for them to turn down a good plea offer.

      • tucsonwriter
        06/18/2010 at 1:34 AM

        I think your post is on the money.

  11. Rich
    06/17/2010 at 8:11 PM

    Any hunches how much this defense will acutally cost?

    Versus hypothetical comments about the, “Million Dollar Defense.”

    And, where is all of this money coming from?

    I’m sure Dylan’s Cardiologist Dad is footing his bill, but, what about Victor?

    Sure Joe was a, “Man of Means,” at one time, but, certainly no longer?

    All of these expert witnesses can range from $2-5k each?

    Not to mention, the fours years of lawyering between 4-6 Attorney’s.

    Any one know?

    • Carolina
      06/17/2010 at 8:33 PM

      It was estimated by Mr. Jaffe that the defense will turn in a tab for something in the neighborhood of 2.3 to 2.5 USD.

    • Bea
      06/17/2010 at 8:40 PM

      Rich, Carolina beat me to giving the estimated ballpark figure but just a note that the experts would cost a lot more than $2K – $5K given that they may have to do experiments on top of analysis (as with the guy today, albeit in his ‘little home lab’). I don’t know if they actually retained Dr. Henry Lee for anything but that would be one very inflated tab and that he likely won’t touch a case at all for less than $50K (and that seems very low). Experts often charge by the hour much like lawyers with an estimated budget and an expense tab.

      I am guessing that both the Wards and the Zaborskys have ponied up cash. I don’t know how successful Joe’s email plea was to all his friends and colleagues, but my guess is that he got money early before all the facts got out, less afterward. I’m sure the trio has (had?) some moneyed friends. Too, Joe’s and Victor’s real estate holdings likely were tapped for whatever equity they had, and Joe may well have cashed out a 401K from Arent that had been building for 8 years. Victor continued to work at Milk Pep for much of the pre-trial, though possibly as a consultant for reduced salary. And of course Dylan gave massages!

      • Themis
        06/17/2010 at 9:11 PM

        You’d be surprised at how many well-regarded experts, including arson experts, fingerprint analysts, forensic pathologists, and forensic psychs, will assist a defendant for free or significantly reduced fees, at least indigent defendants like I represent. I owe debts of gratitude to many.

        And really good experts don’t need to whore themselves. They usually have more requests than they could satisfy. Now some might whore themselves for publicity in a high profile case. But when you put on a true whore, you’re gonna get less than what you paid for even if it was zilch.

        • chilaw79
          06/17/2010 at 10:14 PM

          To his credit, Petraco has been an expert witness for the Innocence Project.

          I just find it incredible that he would criticize the prosecution expert for failing to meet a standard that he (Petraco) did not meet.

      • curiousdc
        06/17/2010 at 10:37 PM

        In terms of money, we know that the house in Florida is off limits, but they still own the R Street condo. His email plea seems a bit of a joke given the real estate that could be liquidated.

        Also, any sign of Price’s family at trial?

      • Bill Orange
        06/17/2010 at 11:36 PM

        What do Zaborsky’s parents do again?

  12. CC Biggs
    06/17/2010 at 8:14 PM

    In a bench trial in a criminal case, does the judge have to issue “jury instruction”? It sounds strange to do so, but maybe there needs to be a record as to the applicable law being applied by the judge in rendering her verdict, in case defendants want to appeal.

    • chilaw79
      06/17/2010 at 8:44 PM

      The judge does not need to issue jury instructions in a bench trial. Judge Leibowitz is an experienced former prosecutor, has been a judge for 10 years (she is a George Bush appointee since judges in DC are appointed by the President) and probably has the basic jury instructions memorized. I am sure she has researched some issues in conjunction with this case and made sure that she has in mind the elements of each of the crimes alleged.

      • CC Biggs
        06/18/2010 at 12:07 AM

        I’m not so sure about that. It’s not a question of the judge’s competence. It’s a question of whether there must be a written record of the legal rules she will be applying to the evidence, so that if the defendants are convicted and they choose to appeal, the appellate court will have a basis for reviewing whether she applied the correct law/legal standards in reaching her decision.

  13. gina a.
    06/17/2010 at 8:23 PM

    I <3 Rachel Lieber-Carson. I am on the edge of my seat reading this excellent report. My perception is that Ms. Lieber-Carson has just turned in one of the best efforts in this trial for the prosecution thus far. Has she done any other arguments for the case?

  14. Rich
    06/17/2010 at 9:11 PM

    Thanks, Bea.

    You can tell I know very little about Criminal Law if I guessed $2-5k per witness. 🙂

    But, I’ve been all over this case for almost 4 years now and all over this blog since the beginning.

    Of course, this case is so complicated it keeps begging questions.

    I’m now operating under the assumption, the judge will parcel out the verdict with Jow doinfg the most time and the others doing less.

    All I think about is, if Michael did kill Robert and gets off andJoe does many years for covering for him, what does that do thier relationship and Joe?

    If Michael behaved, no one would be in this situation.

    Then, I think about how Victor in the end, will, “Cheat,” on Joe and tell all about how Joe did it.

    So much to think about.

    • Elizabeth
      06/17/2010 at 10:32 PM

      How can Michael “get off?” He was not charged with anything. Help, please and thank you.

      • Carolina
        06/18/2010 at 10:35 AM

        Meaning “is never held accountable.”

    • Lee
      06/18/2010 at 8:55 AM

      Okay, I should probably let this go, but improper usage is a niggling issue for me and one that undercuts the credibility of the speaker.

      About the phrase “begging the question” and the variations on it: I know this is pedantic, but I’ve been reading this blog for awhile, and I’ve noticed several instances where this phrase is used. And it has always been used incorrectly.

      Certain situations or responses may “raise the question” but that is different than the informal logical fallacy, petitio principii, called “begging the question.”

      From Wikipedia—
      Begging the question (or petitio principii, “assuming the initial point”) is a logical fallacy in which the proposition to be proved is assumed implicitly or explicitly in the premise. The word beg, when used in this phrase, does not mean “asking for something”, instead it means to dodge or avoid. Begging the question is related to circular argument, circulus in probando (Latin for “circle in proving”) or circular reasoning but they are considered absolutely different by Aristotle. The first known definition in the West is by the Greek philosopher Aristotle around 350 BCE, in his book Prior Analytics, where he classified it as a material fallacy.

      More recently, “to beg the question” has been used as a synonym for “to raise the question”: for example, “This year’s budget deficit is half a trillion dollars. This begs the question, How are we ever going to balance the budget?”

      Using the term in this way, although common, is considered incorrect by some usage commentators. Arguments over whether this newer usage should be considered correct or incorrect are an example of debate over linguistic description and prescription of a living language.

      • JAG
        06/18/2010 at 10:45 AM

        Thank you! Although I’d given up on this a loooooong time ago — incorrect usage has metastasized.

      • AnnaZed
        06/18/2010 at 11:44 AM

        Thank you!

      • bjk
        06/18/2010 at 5:07 PM

        “Okay, I should probably let this go, but niggling cases of improper usage are a big issue for me and one that undercuts the credibility of the speaker.”

        I fixed it for you.

  15. susan
    06/17/2010 at 9:37 PM

    Some thoughts and questions:

    Re the alleged Seattle knife. Unless it has some kind of serial numbers or something identifying it as part of DW’s set, couldn’t they just produce any knife?

    Phone records–seem to have never come up. Wonder if they will next week.

    Re the defendants’ alibis/case: It seems that almost every point that holds their story together is some kind of exception or unusual circumstance:

    -Basement housemate S. Morgan happens to have made plans to be out of the house that particular night.
    -V. Zaborsky changes travel plans and arrives home early
    -Water problem in the house
    -R. Wone staying over for the first time in that house
    –Mysterious “intruder” or so-called “burglar” lives by the clock and amazingly makes his move in that small window of time post water pow-wow in kitchen and shower and just at the right time when RW would be asleep
    –No one in the house hears this, though they can hear steps and the departure chime, etc.

    And on and on.

    Also, I wonder how the defense is going to work out death immediately, BUT with “screams” and “grunts” etc. Plus, if death came immediately, how to explain VZ saying he’s still alive in the 911 call?

    And why is VZ hysterical on the phone when he’s not around the dying/or deceased RW but when, according to him, he goes back to JP to bring the towel while on the 911 call, he is no longer crying but sounds amazingly calm, yet he’s supposedly in the room with all that blood and the knife, etc. Very odd.

    On another matter, there was a posting earlier about the Judge ignoring defense and prosecution’s argument in a case involving a drug-addict mother and her going to jail. The judge ruled for her to serve jail time to protect the children. This may or may not be indicative of her style of ruling, as suggested, but I think it may be more indicative of her earlier work on domestic issues and her advocacy work serving on boards concerning the interests of children.

    • Carolina
      06/17/2010 at 9:59 PM

      Susan, I have said the same thing regarding the knife. If Dylan’s parents are prepared to pay for his multiple degrees, career choices and now defense, what’s to stop them from buying a new Wusthoff and passing it off as the missing one? Yes, there are many people who are as honest as the day is long and would not hear of such a thing, and there are others that under most circumstances would refuse to do such a thing. But when your child is facing jail time and perhaps even a possible murder trial looming, one’s principles might be sorely tested.

      • Bea
        06/17/2010 at 10:05 PM

        I’d need to revisit Schertler’s Opening but I think he indicated something about numbers on the knives.

        • susan
          06/17/2010 at 10:18 PM

          Thanks, Bea and Carolina. It will be interesting to see what, if anything, they produce.

        • Carolina
          06/18/2010 at 10:40 AM

          If I understand Wusthoff’s numbers, it only indicates the identity of the type of knife or set, not the identity of the knife itself. While they are excellent knives, they are not made individually and by the hand of some great knife fairy in a small cave secreted in the hills of western Germany and signed with their special number.

          But I may be wrong.

      • AnnaZed
        06/17/2010 at 10:22 PM

        Wusthof doesn’t make that particular set as a set anymore. They have also redesigned the configuration of the handles and placement of the logos on their knives more than once in 20 years, the etching along the non blade edge near the hilt is different, different even than it was 5 years ago on their four classifications of knives.

        The set must be older than 5 years old I think though probably not “vintage” (like back when they all had wooden and bone handles) but older than the new ones on offer at the store. The police may have gotten Wusthof to provide a match for the size and length of the one that was once in that set number box though maybe not the exact handle configuration or maybe Wusthof responded to law enforcement by sending the exact thing (no longer offered, at least not in the US).

        A private person trying that might not get that response. Anyway a new knife even of the same year would have different handle grain, would not match in terms of wear and be a daring and stupid thing to try to pull off.

        • Former Criminal Sex Offense Prosecutor
          06/18/2010 at 2:55 AM

          Thanks for explaining all of this about the Wusthof knife set AnnaZed. I am always amazed about the knowledge posters possess on individual topics as you do here.

        • Carolina
          06/18/2010 at 10:45 AM

          On the other hand, if there had been two sets? My argument all along is that its unlikely someone would give a new chef a partial set of knives. They’d either give them the full set, or buy a new one to either replace their set or as a gift.

          I wonder if they now have Ken Onion.

          • AnnaZed
            06/18/2010 at 11:35 AM

            I know you think that, but I (respectfully!) disagree. If someone offered me the carver and fork of a wusthof set minus the utility or paring knife, I would love it. MSRP for just those two items is over $300.

            That said, I don’t think that’s what happened. I strongly suspect that Dylan’s knife was used in this crime, but I don’t think (short of the incriminating murder debris being discovered) that that can be proved. Additionally, I don’t think it would prove that Dylan wielded it. I have become increasingly convinced that Joe has a sophisticated instinct for enmeshing others in his machinations and actions and his using Dylan’s knife to commit a crime would not surprise me.

            • Carolina
              06/18/2010 at 12:55 PM

              Oh I don’t mean to say I wouldn’t take it if offered, I just can’t imagine someone saying, “here’s this, but the little knife isn’t going anywhere!” Maybe that’s just me, but I’d find the utility and put it in the set and send little Dyl off to learn yet another trade that he’ll never practice.

    • chilaw79
      06/17/2010 at 10:24 PM

      Judge Leibowitz can be a little hard-nosed if press reports (including those of the editors) are accurate. My research of press reports has shown that she sentenced a grafitti artist (I think she would refer to him as a vandal) to a month in jail. She also was pretty tough on a woman who spilled blood on money in a protest action claiming the woman created a biohazard.

      • Carolina
        06/18/2010 at 10:46 AM

        I think I could learn to love this woman. In fact, I’m sure of it.

  16. BadShoes
    06/17/2010 at 9:55 PM

    I think the judge’s decision this morning potentially offers some interesting insights into how she may view the evidence. In order to dismiss or continue any particular charge, Judge Liebovitz must (IMHO) make certain threshold assumptions about the role of “reasonable inference” in deciding if evidence can be used that are separate from her views about the strength of the evidence presented.

    The judge appears to believe that the evidence shows that the crimes of evidence tampering, conspiracy, and obstruction of justice were probably committed, since she sustained at least one charge for each crime.

    It appears that the grounds for dismissing tampering charges against Messrs. Zaborsky and Ward was based upon the absence of any specific evidence linking them to a particular overt act of tampering. The specific evidence potentially tying Mr. Price to tampering was likely the knife, of which more below.

    In the case of conspiracy and obstruction, Judge Liebovitz appears to have decided that these crimes probably occurred as well. However, since she did not dismiss any charges, it looks as if the judge further concluded that there is specific evidence potentially tying each of the three defendants to specific overt acts of obstruction.

    My sense is that the only evidence that shows specific overt acts of obstruction by all three defendants is the set of inconsistencies between the physical evidence and the defendant’s statements to police. Using this material requires the judge to make a double inference:
    –that the inconsistency was deliberate and intentional (a lie);
    –and, that the defendant told this lie for the purpose of obstructing justice.

    She also has to work through all the problems associated with the rules of evidence and the manner in which these statements were offered (“for truth”).

    It appears to me that the judge decided that the defendants statments could be used, and that she is prepared to make this double inference, because otherwise she would have dismissed charges against Mr. Ward at least.

    And that, I think, is a big problem for the defense. If they were going to win acquittal, it would be because the prosecution relied on “inference, speculation, and [i forget]” as Mr. Grimm argued in his opening statement. A defense-oriented poster made a similar argument here over the weekend.

    • chilaw79
      06/17/2010 at 10:20 PM

      There also is evidence that Price wiped blood from Robert Wone’s chest.

      I also think that Dr. Fowler may have laid the foundation to conclude that Price did not apply pressure to the wound and was not alive when the 911 call was placed. I don’t think that is evidence of tampering, but it is evidence of obstruction since both Price and Zaborsky claimed he was applying pressure to the wound and Zaborsky implied that Wone was still breathing (presumably based on what Price said to him). Perhaps there will be more on this.

      • BadShoes
        06/17/2010 at 10:31 PM

        chilaw-

        The striations indicate that blood was wiped. If you think the defendants’ accounts are mostly true, then Mr. Price was the logical wiper, presumably in order to put blood on the knife, since he was the guy sitting by the body. However, if the defendants had actually been obstructing for a while, than the identity of the wiper is an open question.

        I agree re Dr. Fowler on pressure and Mr. Zaborsky on breathing. Both are, I think, evidence of obstruction.

        • Liam
          06/17/2010 at 11:27 PM

          I wonder when expert witnesses will be shown to be the frauds that they are, just like has been shown with eyewitness testimony.

          I’m sure many of you have seen or heard about the studies that show eyewitnesses are terrible at identifying any details of what they witnessed. This is not surprising in view of the fact that in these studies, 99% of people can’t remember important details of an incident, even when they are told beforehand that an incident will be staged in front of them and they are to remember as many details as possible. Imagine when an eyewitness sees something that is unexpected.

          Back to the experts. I good and gosh darn guarantee you that if an unemotional (i.e., untied to the emotions of a murder) experiment was conducted where 100 of the same knifes were used, and 50 of those knives were stabbed into an animal and then wiped off with a towel, and the other 50 of those knives were dabbed with the blood of the animal (i.e., the blood was wiped on the knife to simulate that it was used to stab the animal) and then wiped off with the same towel, the experts results as to which knives did which would be completely random.

          Wiped on, wiped off, they could not accurately tell. I pose to you, would you bet, say, 30 years of your life, that the experts determinations in the above experiment were accurate enough to be used to prove something “beyond a reasonable doubt”.

          None of your would trust any expert in such and experiment if your freedom was on the line.

          • Bill Orange
            06/17/2010 at 11:47 PM

            Well, the blood on the knife isn’t the only evidence being considered, so it’s not as though this is make-or-break testimony. But in response to your main point, the defense can–and possibly will–perform exactly the experiments you described.

          • Carolina
            06/18/2010 at 10:56 AM

            It’s a good theory, but there’s no evidence to support your claim. There is research to support the fiber evidence.

            I’m not saying you’re wrong, but it’s easy to say there’s no correlation without real facts. For years, physicians laughed at researchers who claimed washing one’s hands would help cut down on infections and death in childbirth and we know how that one turned out.

  17. BadShoes
    06/17/2010 at 10:08 PM

    oops, I forgot to discuss the knife. The prosecution may show that the ‘plant knife’ wasn’t the murder weapon, which is evidence of tampering, but that doesn’t show which defendant planted it.

    The only evidence, AFAIK, specifically tying Mr. Price to the knife is that he told the police and others that he moved the knife (or pulled it from Mr. Wone’s chest.)

    But, if one were to take the view that Mr. Price was also guilty of obstruction of justice, his entire statement, including the statement that he moved the knife, is an uncertain alloy of truth and fiction, so how could one use this statement to prove the truth of anything?

    [This is the part where my head explodes]. Only if Mr. Price is not guilty of obstruction of justice can one rely on his statement to show he is guilty of tampering in order to obstruct justice.

    Maybe I need to take a break from this case.

    • susan
      06/17/2010 at 10:33 PM

      Thanks, BadShoes, for your insight. Sure take a break. Give yourself until 2:15 tomorrow!

      BTW, how do we tie in what DZ said on the 911 call: The person has “one of our knives.” Did he say he took a detour to the kitchen to check–walking down the stairs with Price, seeing the bleeding Mr. W, told to call 911, detour to the kitchen….?

      It’s just odd. Wouldn’t he have seen the knife on or in Mr. W (I guess BOTH, based on J. Price’s testimony). Then “there’s” the knife so why would “he” have it? It’s right there.

      • BadShoes
        06/17/2010 at 10:54 PM

        The problem with what Mr. Zaborsky’s statement is that, as you say, a knife was there. In order for Mr. Zaborsky’s 911 statement to be consistent with his general account of his actions:

        1) he must have spotted the knife when he first came downstairs, and instantly recognized it as coming from the kitchen.

        2) he must have mis-spoken when he said “he has one of our knives.” What he must of meant was: “he used one of our knives.”

        When Mr. Zaborsky talked with police later, he said he was unsure whether he saw the knife later or not, which is odd, since earlier he knew it was “one of our knives.”

        Here are two other possible scenarios that are less consistent with the defendants’ statements to police:

        Mr. Zaborsky is talking to the 911 operator, when somebody tells him (or prompts him to say) something about the knife. Mr. Zaborsky bobbles or misunderstands, and says “he has one of our knives.”

        Or, Mr. Zaborsky knows that Mr. Wone was stabbed with a knife from the household, now gone, but doesn’t know that the “plant knife” has replaced the original knife. So, he tells 911 that “he has one of our knives” and is distressed to learn a few minutes later that actually a knife is still present.

        I leave it to your judgment as to which of these three possibilities (or something I haven’t thought of) is closest to the truth.

        • Clio
          06/18/2010 at 5:27 AM

          Has is present tense; used is past tense. The process of knife ownership then must have been disrupted, if Victor misspoke. But if he did not, the usage of has and used, especially under pressure, would not be incompatible. The mythical intruder having and using one of the household’s knives may not be an inconsistency in Culuket’s official story, after all.

          • susan
            06/18/2010 at 8:02 AM

            Thanks.

            I have to say I think that “he has” is “he has” one of our knives, not “he may,” “they may,” “he had,” or “they had.”

            It’s a categorical statement and a strong one. That’s a big assessment from someone who apparently was barely–if at all–in the room with the stabbed Mr. W before he was supposedly sent upstairs to make a call.

        • cinnamon
          06/18/2010 at 8:47 AM

          Maybe “he has” one of our knives meant that the person that they call the intruder ran out of the house with one of their knives – the murder weapon. Maybe this intruder was a friend or Michael Price and is still in possession of the knife with the DNA of all of the defendants on it. This could be the reason they haven’t caved after all these years and why Joe told Tara in the email that if they tell all they know, one of them could be arrested. I’m interested to see what the defense presents with regard to the knife in Seattle.

          • Carolina
            06/18/2010 at 11:00 AM

            I have a hard time holding Victor to the letter of the language in a 911 call. I don’t know what I’d say or how I’d say it if I found myself in that position.

            • 08/11/2010 at 10:11 PM

              RE “…I don’t know what I’d say or how I’d say it if I found myself in that position.”
              If you believe VZ is in on at least the cover-up, then he is not speaking “naturally,” but is trying to cover-up.

            • alternateguy
              08/11/2010 at 10:50 PM

              Carolina,

              Just playing the devil’s advocate again, but didn’t Victor say that he didn’t see the knife? And if Joe yelled at him, while he was on the phone, something like “They used one of our knives,” Couldn’t he have easily interpreted that into “They have one of our knives?” since he didn’t realise that the knife was still there? Just speculating. But such slight variations in the story are what makes it seem rather believable to me.

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

                Victor didn’t say he “didn’t see the knife” – he said that he couldn’t remember if he saw it the first time he saw Robert or if it was after he went upstairs to call 911 and came back down. I believe the Eds. had done a timeline of the call in the past (upstairs, downstairs, when what was said). My recollection is that his statement came after he was back downstairs but that may be wrong. Joe claims they never talked and there is no recording of Joe’s voice on the tape making such an announcement.

                I think it shows that they clearly had discussed the matter of what Victor would say – that Victor did not “immediately” go upstairs to call 911 without discussion as was claimed. It’s a strange “fact” to relay to a 911 operator – not whether Robert’s pulse is getting faint or his coloring or even a direct answer about whether he’s breathing. Victor seems to have screwed up the story, too, in answering in the affirmative when she asks if “they” left with the knife. Why answer “yes” if there hasn’t been a discussion about knives (considering he can’t even remember WHEN he saw it – though he did “see” it after the Mercedes meeting, that it was lying on or “up against” Robert). The call seems replete with strange statements (‘we have someone in our house who is bleeding’ – something like that) and nothing about how to help the guy other than what the dispatcher herself raises.

                • TT
                  08/12/2010 at 4:58 AM

                  Bea, totally agree with you. Victor and Joe have no concern about Robert. And, Dylan is supposedly still in his bedroom, afraid to come out. Altguy, the slight variations you mention make it unbelievable!

                  • alternateguy
                    08/12/2010 at 9:49 AM

                    TT,

                    “…the slight variations you mention make it unbelievable!”

                    However, without any variation, I have no doubt at all, that folks on this site would be saying, “See! Their accounts are well rehearsed, orchestrated, and coordinated.”

              • Craig
                08/12/2010 at 1:34 PM

                Price wasn’t heard yelling anything while Zaborsky was on the phone with the dispatcher. The enhanced recording didn’t pick up any such background chatter except Price inexplicably asking what time it was.

                Secondly, to the MPD, Zaborsky said he saw a knife on his first trip down the stairs, but later said he was confused as to what he saw.

                • alternateguy
                  08/12/2010 at 1:39 PM

                  Perhaps Joe could have yelled it as Victor was going up stairs or dialing the phone. Just saying.

    • Goose
      06/18/2010 at 8:42 AM

      “But, if one were to take the view that Mr. Price was also guilty of obstruction of justice, his entire statement, including the statement that he moved the knife, is an uncertain alloy of truth and fiction, so how could one use this statement to prove the truth of anything?”

      This is exactly the problem that the prosecution has – they even said as much during trial. They cannot prove whether Joe pulled the knife from Robert’s chest. This is why they said they were not offering the statements about the knife being pulled from the chest for truth. The prosecution is only using those statements toward the obstruction charge or toward credibility – to establish that Joe is a liar.

  18. chilaw79
    06/17/2010 at 10:34 PM

    I am very impressed with the work of the editors and the comments on this blog. There are a variety of viewpoints and a range of knowledge on various issues. Who knew that people knew so much about fibers, knives and cardiac tamponade.

    The editors are to be commended for providing a civilized and intelligent forum for this important case.

  19. susan
    06/17/2010 at 10:50 PM

    Pls. excuse All, one last question this eve: I just did a search of “lights on” and there were too many search results. I’m too tired to refine search, etc., but what’s the scoop on lights on in the house during the time frame in which the murder could have occurred? Any house lights on? Thanks.

    • BadShoes
      06/17/2010 at 11:04 PM

      There was little discussion of lighting by the defendants i their recorded statements, and the police didn’t ask. By going through the statements of the defendants, it appears that their statement was that:

      I believe that Mr. Ward said he turned off the lights in his bedroom when he went to bed, but I’m not sure at this remove.

      After they heard the grunt/moan/screams, Messrs. Price and Zaborsky jumped out of bed, turned on the light that illuminated the stairs between the second and third floors, and saw Mr. Wone’s body through the open door to his bedroom.

      I infer from this that there were no lights on in the second floor (why else turn on the light on the stairs) but can’t be sure. Also, even that inference depends on the story of Messrs. Price and Zaborsky being accurate on this point.

      • Elizabeth
        06/17/2010 at 11:47 PM

        I recall, but the hour is late, that Dylan fell asleep reading with the light on. I think there was even some discussion about who falls asleep with the light on. I could be totally wrong on this, too. So much to take in on one day!

        • Carolina
          06/18/2010 at 11:04 AM

          You’re right. Some assumed he turned off his light and went to sleep after “hearing” Robert return from his shower, but after rereading his statement, it appears he fell asleep with the light on which would be visible from the backyard. This makes for a very, very stupid or bold intruder, doesn’t it?

  20. can'tstopreading
    06/17/2010 at 11:01 PM

    Ben Franklin,

    Come out, come out wherever you are!

    • Bob
      06/18/2010 at 8:38 AM

      Do not feed the troll.

  21. Elizabeth
    06/17/2010 at 11:49 PM

    I think someone brought this up, so forgive me. But if I am understanding this correctly, if Ward and Zabosrky are innocent on the tampering charge, then the Judge is essentially saying that all of the clean-up was done by Price alone? Seems unlikely given the tight time frame.

    • Bill Orange
      06/17/2010 at 11:53 PM

      I don’t think that’s what she’s saying. I think that what she’s saying is that the available evidence simply does not support these charges against Ward and Zaborsky. However–and I think this is that part that made BadShoes’s head explode–she may have decided that a big part of the reason that the evidence didn’t support the tampering charges was BECAUSE they all obstructed justice.

      • Elizabeth
        06/18/2010 at 12:00 AM

        Huh? Right about now I think the bench trial was a stroke of genius.

        • Bill Orange
          06/18/2010 at 12:11 AM

          More like a no-brainer. A jury probably would have decided that they were all creeps and just convicted on all charges. I doubt they would’ve even bothered holding out for a free lunch.

          • Elizabeth
            06/18/2010 at 12:33 AM

            You are probably right – I’m always overestimating!

    • AnnaZed
      06/18/2010 at 12:01 AM

      Maybe she thinks it is possible, as indeed I think it may be possible, that Joe and another party (maybe Michael, maybe someone else) did at least the tampering if not the murder itself and that all that can be proved against Victor and Dylan was the after the fact lying and obstructing, though as BadShoes and Bill Orange point out it is the very obstructing that obscures the truth of that matter. Maybe that is what she was getting at when she kept at the prosecution to name a time when the conspiracy began. If it’s at the time of the scream then tampering can’t be proved against anyone but Joe; if the prosecution tries to say that the conspiracy began when Robert arrived or even before that they would have to prove it, and they can’t (because of the obstruction). Ack!

      • Elizabeth
        06/18/2010 at 12:04 AM

        AZ – that actually made sense to me. Frightening, but thank you!

  22. AnnaZed
    06/18/2010 at 12:14 AM

    You know, I wonder if these men really, really, really screwed themselves with the obstruction and conspiring monkey business. I wonder if one came forward (oh, say Victor for example) and said “Dylan did it and here’s how,” they would not be able to demonstrate that because the very crime that they are now accused of successfully obscuring the truth. Unless that person can say, “I know where the cameras are, and the knife and the bloody debris,” and bring law enforcement there, then no sale. What if all the evidence is at the bottom of the Chesapeake Bay? Then what? You’ve squealed for nothing and would get nothing for it maybe. Joe has his little family right where he wants them, completely at his mercy.

  23. AJ
    06/18/2010 at 12:40 AM

    What’s fascinating is that no one has come up with theory that makes complete sense for this murder. The ‘homeless guy in the alley’ theory doesn’t hold water, but I’m not totally sold on the Michael Price theory either. I haven’t heard a single theory that totally clicks with me so far.

    One thing that Dr. Fowler said that got my attention: the knife wounds were made with a certain precision. Well the murder itself was committed with a certain precision or exactness. Not the work of a first timer. It had an almost pre-mediated aspect to it. Why was the crime scene so clean? (I know, probably a police flub, but still.)

    For a fleeting moment, reading Fowler’s testimony, I thought yeah, maybe it is a professional assassin. Precise wounds, needle marks, a victim who was drugged, but you can’t actually find the drugs in his system. It’s something out of a bad spy novel. The moment didn’t’ last.

    The 9/11 call, timeline and behavior of the roommates is pretty inexplicable and brings me back to earth. My spidey-sense tells me they are guilty. But damn the forensic evidence does not overwhelm me.

    • Leo
      06/18/2010 at 8:18 AM

      “I haven’t heard a single theory that totally clicks with me so far.”
      “My spidey-sense tells me they are guilty. But damn the forensic evidence does not overwhelm me.”

      You have hit the nail on the head. That’s why it is so difficult to predict what the Judge will do. Is the mystery itself sufficient to create reasonable doubt? When is absence of evidence sufficient evidence to convict? You’ve heard the truism that one can’t prove a negative. Is it possible to prove something by virtue of what is missing or unexplained? These gaps work in favor of the defense–up to a certain point. This whole thing is like a law school exam hypothetical that no one can figure out the correct answer to. Even the professor.

    • chilaw79
      06/18/2010 at 9:23 AM

      While I have not heard the evidence from the defense, my current view is that one of the three defendants committed the murder and all are covering up. The facts that make me believe this are the time period between the scream and the 911 call, and the lack of response to the stabbing by Robert Wone, supported in part by the lack of a lot of blood. I don’t think Robert was just asleep; I think he was drugged and perhaps overdosed (despite the lack of toxological evidence). At this point, I do not believe there is missing blood and take the view that the bleeding was internal.

      The explanation that makes sense is that one or more of the defendants drugged Robert, he was undressed and redressed by one or more of the defendants and placed on the bed, and then was stabbed by one or more of the defendants. The whole intruder story is a sham. I think it is a reasonable inference that one or more of the three people in the residence committed the murder, given the lack of any proof of an intruder. The only fact that bothers me about this is that Robert Wone had his mouth guard in. I just don’t know if a third party could put the mouth guard into his mouth, unless it was to prevent Robert from screaming.

      • Carolina
        06/18/2010 at 11:10 AM

        I don’t recall who first came up with it, but the photography scenario makes the most sense to me. It would be hard for me to believe they let Robert walk in the front door knowing they were going to kill him, so this theory makes more sense to me. Of course, I think it’s always human nature to assume others are incapable of what we are not capable of ourselves, or worse, are not capable of what we don’t want to consider happening.

  24. reader
    06/18/2010 at 8:44 AM

    I think perhaps each of them took a turn stabbing him, hence the three wounds. But also, why weren’t Ward’s torture devices entered into evidence as motive for killing someone, or is that not legal?

    • Goose
      06/18/2010 at 8:49 AM

      It’s not a murder trial, so admission of such evidence is irrelevant.

    • Carolina
      06/18/2010 at 11:13 AM

      A lot of us thought the number of stab wounds was significant and correlated to the number of defendants, but the evidence shows them to be so similar and so precise that it would be hard to have three individuals render the same effect. All three wounds were almost definitely made by the same knife and same hand.

  25. Bob
    06/18/2010 at 9:13 AM

    I have a question. Some of the posters are talking about whether the defense is about to break and whether one of the defendants is about to turn US evidence and plead. I am not a lawyer, but my question is why the prosecution would be willing to accept a plea. Presumably the real objective of the prosecution is to have the real murderer convicted of felony murder. Either the real murderer is one of the roommates, or the real murderer is someone else known to the roommates, or it really was a ninja.

    If the real murderer is one of the roommates, he would gain nothing by pleading, because the sentence for murder would be longer than for obstruction of justice. If the real murderer is someone known to the defendants, then what would the prosecution gain from a deal? The case against the real murderer would be tainted because it would rely primarily on the testimony of a confessed obstructer of justice. Can someone explain why the prosecution would be willing to take the chance of showing mercy to one of the conspirators in exchange for a tainted murder trial? Can someone explain?

    • Carolina
      06/18/2010 at 10:16 AM

      They’d gain a conviction for the other two defendants in this trial, but most importantly, they’d get a murder trial, something that so far hasn’t appeared likely.

      Remember that this case is different in that Eric Holder was involved before his appointment as AG. What I’m sure he wants for Kathy and Robert is closure– answers and a murderer’s identity.

  26. Bill Orange
    06/18/2010 at 9:15 AM

    Thoughts after a night’s sleep:

    The dynamics of the case have changed substantially in the past week, especially in the past 24 hours. Earlier this week, Michael Price lost his alibi, and Dr. Fowler really hammered home the evidence.

    Yesterday, the judge said that she could see how a reasonable person would think that most of the charges have been proven beyond a reasonable doubt, and the defense’s first witness was pretty much obliterated on the stand.

    My strong suspicion is that the reason this conspiracy (assuming they’re guilty) has held together so far is that Dylan and Victor are subservient to Joe in general, and the fact that Joe is a lawyer and they are not makes them particularly deferential to him on matters of law. I think that he has told them over and over that if they just stick to the story, they’ll be fine. That worked for over two years. Then the charges were filed, and I think the story was something along the lines of, “This is bogus. They’re never going to make this stick. A judge is going to laugh this out of the courtroom.” As the trial has worn on, it became, “This’ll get thrown out by the judge, and even if it doesn’t, our experts will make mincemeat out of the prosecution’s experts.”

    After yesterday, I think that Victor and Dylan (not to mention their respective families) have to be having serious doubts about this whole strategy. I think it’s going to be a LONG weekend for the two of them.

    • Carolina
      06/18/2010 at 11:15 AM

      I agree. I do think Vic and Dylan believe Joe is the smartest guy in the room. We see how that worked for ENRON.

  27. Bill Orange
    06/18/2010 at 9:31 AM

    One other thought: I’m still not very clear on Louis Hinton’s involvement in all of this, but he tried to invoke his fifth amendment rights, and neither the prosecution nor the defense asked him where he was on the night of the murder. It’s possible that he not only provided Michael Price with a false alibi, but that he was actually in the Swann Street house on the night of the murder. If so, then he’s in the mix with the current “prisoner’s dilemma”. If Dylan and Victor both flip and say that Louis was there, then he’s going to get hit with both conspiracy and obstruction of justice charges. He’s in a much better position to cut a deal right now than he will be if Dylan and Victor flip. And if his lawyer was paying attention to what happened yesterday, he might be working the phones this morning.

  28. Themis
    06/18/2010 at 9:51 AM

    All the denial of a Rule 29 motion means is that when the evidence is construed in the light most favorable to the government a rational juror could find guilt beyond a reasonable doubt. If it meant that a judge in a bench trial was going to find someone guilty, there would never be acquittals at the conclusion of bench trials, which there are. There are even cases where judges toss vedicts after jury verdicts of guilt. Because you have to make a Rule 29 motion to preserve the issue for appellate review, they are routine and routinely denied. They are the exception, not the rule. They shed weak light on what the court thinks has been proven as opposed to what has not.

  29. Lady Chablis
    06/18/2010 at 10:16 AM

    Are you ready for this? Joe will testify. I know this bucks conventional wisdom.

    There are things in this case, that ‘expert’ witnesses can’t explain away. Failing to mention to police on the night of the murder that Michael Price had a key to their house is huge. That’s obstruction. This is going to weigh heavy on the judge’s mind. He needs to explain. His email statement that he wiped up a “little blood” – that is tampering. The timing of the 9/11 call is also big. This needs to be explained. The knife, the towel the blood, etc. could lead a reasonable Judge/jury/person to conclude he is guilty – more so than the other 2.

    Ultimately, Joe can do what others witnesses can’t in this case. In the end, Mr. Grimm may put up a faint protest, but will agree that there’s a decent Joe chance will found guilty on one or more of the charges. Joe needs to testify.

    Ultimately, this is what every lawyer dreams about (in a twisted way). It’s the ultimate metaphor. Joe’s life hangs in the balance. The one person that can save him – is himself. Conversely, Joe who has a destructive side of personality can be his own worst enemy. It will high drama. If Joe can pull off the triple-twist dismount at midcourt he walks away a free man. It’s risky. If he stumbles he goes to jail, and the Wone family will have a small degree of satisfaction.

    Joe is a performer, an adrenaline junkie. This could be his last change to perform before being sent away to a small poorly decorated jail cell. He needs this. In a strange sense so do we.

    It’s almost high noon and the prosecution damn well better be ready.

    • Carolina
      06/18/2010 at 11:21 AM

      Now you make me want to read Berendt again. Is this speculation based on observation or are you in the know? I do agree that Joe is champing at the bit, wanting to get up there and tell everyone how foolish they are.

  30. 10/09/2011 at 5:26 PM

    The other day, while I was at work, my sister stole my iphone and tested to see if it can survive a 30 foot drop, just so she can be a youtube sensation. My apple ipad is now broken and she has 83 views. I know this is totally off topic but I had to share it with someone!

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