Day 22: Wrap

The Patchwork of Suspicious Circumstances

The final session of the final day of the Wone trial featured some of the strongest argument yet, from both sides.  David Schertler, for Dylan Ward, closed for the defense, and Rachel Carlson Lieber for the government’s rebuttal argument.

First, the earlier session with Connolly.  He stated Zaborsky, “…didn’t have any knowledge of what happened… and there is no direct or circumstantial evidence that he knew what happened.” He again described his client’s crying as a “natural reaction under the circumstances…he was frightened and confused,” and at the end of the 9-1-1 call he was “…terrified and grieving.”   Zaborsky’s reactions, Connolly said, were not those of, “someone who entered into a criminal agreement.”

Judge Leibovitz, as she had with other previous counsel, returned to the issue of PEA, tamponade, the 9-1-1 call and the time line.  “We’re not asking the court to do any math here,” said a soft-spoken Connolly, referring to PEA not so much as a time marker, but merely an outer end of possibility.  Leibovitz interrupted.

“Why is length important?” she asked in light of the government’s removing from the table any allegation of large scale cleanup.  Paraphrasing, she speculated it wouldn’t take very long at all for the three housemates to concoct a story, swipe a knife blade, and call 9-1-1.

“To be honest, it’s not been an issue that I’ve had a lot of enthusiasm for…” began Connolly.  Through the court crosstalk, one could clearly hear Leibovitz say “…way to throw them under the bus…” referring to Mr. Connolly’s defense colleagues who have spent a great amount on the time line.  Connolly quickly found his footing, returning to his argument that “…there is no evidence here of any delay or obstruction.”

Leibovitz also picked up on a theme she had earlier brought up with both Kirschner and Grimm – how much a person would have to know about a crime to be guilty of obstruction. “How much knowledge would you have to have to be a liar,” the judge queried.  “You’d have to know know,” replied Connolly.  Shot back Leibovitz, “But if you knew knew, and you don’t say anything…would that be a crime?”  Existential questions aside, Connolly replied no (no.)  “Omission does not form the basis of obstruction.  Lies do.”

Connolly closed with words familiar to case watchers, that his client, “…is a kind and gentle soul.”  Zaborsky “…shares the frustration of not knowing what happened that night and…he wouldn’t cover up a murder no matter who caused it…Robert Wone was a wonderful person and his death was a tragic loss.  Don’t compound that (by finding him guilty),” he implored.

The baton was passed to Ward counsel David Schertler, and he ran with it.  Next after the jump…

David Schertler began at 3:25 and presented a polished, spirited and confident summation of the defense positions on obstruction, conspiracy and tampering.  Characterizing the government’s case as “assumptions, speculations and innuendo,” just as he had in his opening statement, he argued the prosecution admitted as much in Kirschner’s closing arguments of, in effect, the great deal that’s still unknown about what happened that night.

“They cannot prove the true circumstances of what happened August 2nd, 2006,” he said. “If you don’t know who did what, you can’t prove the true circumstances of what happened to Robert Wone,” continuing that if you can’t prove that, “…you can’t prove that any of these three men have lied.”

“There’s a void in the evidence they can’t fill,” he asserted.  Not so surprising, given the government’s own admission of how much could not be said of that night – proof they would argue of the “success” of the conspiracy.

Schertler then turned to his main argument that the government’s case in chief was little more than an “…assembled patchwork of suspicious circumstances,” which requires the finder of fact (Judge Leibovitz) to make too many leaps of inferential faith.

He marched through the prosecution’s arguments item by item, calling them “little suspicious circumstances.”  Robert’s neatness, the towels on the chair, the sheets turned partway down, the “stares and glares” – as he called them.   Hair and fibers, pork loins, bruise marks, the cutlery set:  for each Schertler lanced the government’s interpretation, offering a reasonable alternate interpretation; each with the incantation of “…it makes no sense…you can’t infer guilt.”

Regarding one of those little circumstances, the clean and unused towels found in the guest room, “They didn’t looked used,” the judge said, “you don’t have to be a legal scholar to see that.”  Putting experts aside, Leibovitz wondered, “The knife looks like it was cleaned off.  What do I do with that?  Why didn’t Henry Lee have an answer for that?  He had one for everything else.”

Leibovitz asked Schertler why Zaborsky posited that it was an intruder on the 9-1-1 call.  Schertler replied that intruder was a natural and understandable assumption to make, and that does not rise to the level of obstruction.  She also raised a hypothetical: if this case involved one person at home and everything else was the same, he (Schertler) would’ve “…papered a murder case,” in his old job as Chief of the USAO Homicide Division.  “Now, with three or four people at home, wouldn’t a reasonable person say it was one of my guys?”  Schertler’s response seemed to trail off.

Referring specifically to his client, he chided the government for constructing argument largely in the absence of known fact.  “This court would have to speculate about what happened in that house that night and impute that knowledge to Mr. Ward.  And you can’t do that.”

It was all, in his opinion, bordering “…on the Kafkaesque.”  Paging existential philosophers, white courtesy phone…

There was an odd moment, when Mr. Schertler referred to two emails that Robert “had sent” from his BlackBerry that night.  First, we don’t recall those mystery draft emails, recovered by Detective Waid, being entered into evidence; and second, even if they were, it seemed clear to us that those emails were, in fact, never sent.

Grimm had also referred to these emails in his close, then later surprised us on one point: other emails on the stipulations list between Joe Price and Dylan Ward seemed to indicate their independent relationship was coming apart and that Price had said Ward, “…was pulling away.”

Regardless, at his close, all three defense counsel – in their closing statements – had gone on record as arguing that you can’t find obstruction unless you can prove “actual knowledge” of the crime beyond a reasonable doubt.   He ended at 4:30…actually, Judge Leibovitz ended him at 4:30, allowing him one final rhetorical “flourish.”

At his close, Rachel Carlson Lieber began what would be the final words in the Wone trial argument.

“We don’t know what happened to Robert Wone that night of August 2nd, 2006.  They did, and they lied,”  she began.  “Kathy Wone doesn’t know…” what happened to her husband that night; “they do and they lied.  Robert Wone’s parents don’t know what happened to their son that night, they do and they lied.”

The government’s case closing came down to one simple equation.  A lie equals obstruction of justice.

The defendants didn’t just stop at ‘not knowing’ – as per the previous bench inquiry into how much ‘know knowing’ would constitute a crime.  “They spoke; they provided details that are contradicted by their statements, by the physical evidence…” and by other factors.”

Speculation innuendo and guesswork, wondered Carlson Lieber?  Here’s speculation: that “…some ninja assassin intruder…” leaped two fences, entered the house, grabbed a knife, entered and left unseen and unheard, and killed a man who wasn’t even supposed to be there, save for an ill-timed sleep-over.  Or another: speculation is trying to establish a time line from one doctor who said that “…blood from a 7/8″ wound to the pericardial sac…” wouldn’t flow out…an utterly implausible conclusion.”

This was Carlson Lieber’s answer to Schertler, Connolly and Grimm: that this case wasn’t a “…panoply of little suspicious circumstances…” as Schertler characterized it, isolated and separate.  It was instead the totality of all of it taken together.

If David Schertler tried to tear apart the “…patchwork of suspicious circumstances,” Carlson Lieber worked to stitch it back together into a whole quilt.

Glancing at the clock, she ended: “I’ve been talking for 19 minutes, your Honor, which is a very, very long time…”  No coincidence and a not-so subtle reminder that 19 minutes was was the least amount of time that the government alleges elapsed between the Maureen Bunyan time stamp and the 9-1-1 call.

Lieber ticked off a number of criticisms of the defense’s witnesses: Dr. DiMaio’s testimony was “unfathomable,” Dr. Najam’s testimony was not relevant to these circumstances, and that Diane Ward may not have remembered which child got what knife or which one she kept.

Considering the day in toto, Leibovitz appeared to be narrowing down her questions to a limited set.  At what point does willful ignorance become obstruction?  Why did none of the defendants at least try to offer another explanation, other than the intruder, instead of “…throwing up their hands passively…” as she characterized.  When do the facts indicate the conspiracy began – at the earliest and the latest?   And why does the time line matter, given the limited accusation of tampering?

It may not be 19 minutes, but at 1500+ words, this post is long enough.  We will be posting tomorrow, and through the weekend, with much more from the trial, and analysis and react.

Programming note:  Join us for a online chat with Washingtonian Magazine’s Harry Jaffe tomorrow morning at 10:00amET.

272 comments for “Day 22: Wrap

  1. Sandra Renee Hicks
    06/25/2010 at 9:54 AM

    Greetings –

    Ref: Robert Wone case
    Today I read Harry Jaffe’s June 24, 2010 commentary on One commenter, TomDC, had this to say to Jaffe about the website….

    “It is disgraceful that you’re coddling that cyber lynch mob…They are the most vile of people.”

    I totally disagree with the comments of TomDC. Yesterday at 4:34 p.m. I posted my sentiments about this site, and its editors…

    Today my comments were added to the website in response to TomDC. I posted there what I stated here yesterday and informed TomDC that I would repost my comments today on this site for emphasis. Below is what I wrote to TomDC this a.m. Also, below is a re-post of what I wrote here yesterday:

    TomDC: Your post last night stated, “It is disgraceful that you’re coddling that cyber lynch mob… They are the most vile of people.”

    Fortunately, many know that your comments are not accurate. They are not a lynch mob nor are they the most vile of people. You should be ashamed to utter such fallacy.

    COMMENTS that were posted on – posted Thursday June 24, 2010 at 4:34 p.m.

    The intelligence displayed here has been of such benefit. My heart hurts for the Wone family for what they know and for what they don’t know.

    Contributors here have provided insightful, contemplative, and incisive commentary.

    Kudos to the editors who gave gripping thorough accounts of courtroom observations. This site hit the mother lode. Thank you for the brainchild. This novel approach to justice should be emulated and copied for its obvious judicial value. Also, it has the value of the development of soul connections – caring people united with the common goal to honor a man whose blood cries out for justice. I am humbled, editors, by your mission and impressed by how you dignified this process.

    This website’s innovative approach/application could be used in case studies. I hope that it the start of many more such sites. It is indeed a quality community service that has proven to be a worthwhile exercise. I motion to continue….

    Appreciation is extended to the others who attended the trial and reported their findings, critiques, and observations to the audience on this site. Thanks also to those who did not visit the courtroom but proffered “aha” moments. “Posters” asked pointed questions in bountiful supply, and many wise and knowledgeable viewpoints are on the record here.

    This website is, to my knowledge, the first of its kind. With few exceptions, the consistent quality comments posted here succeeded to inform, enlighten, and constructively challenge. It is on record in an unprecedented form that citizens care much about justice.

    Thank you to all here who gave care, energy, wisdom, and knowledge for a cause that is priceless.

  2. Dr20854
    06/25/2010 at 9:56 AM

    I attended the trial a couple of weeks ago – and sat on the right side of the courtroom… behind Kathy Wone, behind the defendants, and in front of Robert’s brother, mother and aunt. I overheard Rachel Carlson-Lieber chatting casually with Kathy and it was apparent that her daughter knew Kathy by first name. It really put things in perspective how this trial must be so completely consuming of these attorneys. What we sometimes forget is that these people are all real people with regular lives. Rachel has done an amazing job as a prosecutor and, all at the same time, is someone’s mother, someone’s daughter and someone’s wife. KUDOS to you and your colleagues on an incredible job. The prosecution team has blown away the defense team a million times over. Let’s hope that justice will be one step closer to being served on Tuesday – for Robert.

  3. 06/25/2010 at 10:32 AM

    Matrimonial polka

  4. tassojunior
    06/25/2010 at 12:24 PM

    The chime does bother me since Ward is the presumed murderer. I could see how Ward would stage the premises by going out and turning the trash can upside down next to the shed and maybe even hitting the Mr. Turtle next door with something to make it look like an intruder. Certainly he’s the only one with reason to take a knife from the kitchen and leave the door open to look like an intruder. But if he could not turn the chime off then that’s a problem. Plus Ward has now been judicially determined to have not tampered with evidence.

  5. Mike
    06/25/2010 at 12:54 PM

    Maybe things weren’t so happy-go-lucky in the trouple. Maybe Ward found out that night (or when Victor was away) that Joe wouldn’t be leaving Victor for him as he told Sarah Morgan. Maybe the humiliation of being used as a live-in sex toy was too much for him, and he lashed out. Who knows, but I’m betting the verdict next Tuesday is guilty.

    • cinnamon
      06/25/2010 at 1:08 PM

      I really wish we knew more about what was going on between the three on the night of the murder prior to Robert’s arrival. What was the mood in the house that Robert entered into? I recall Dylan mentioning something during his interrogation about Joe and Victor having some sort of argument upstairs. So many questions…still.

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