A Better Way Of Doing Business?
A smart legal beagle reader chimes in on two aspects of the Wone obstruction trial and verdict.
In a lengthy blog entry on his own site, Holy Prepuce!, this “D.C. attorney who writes anonymously out of deference to his employer,” dissects the Prisoner’s Dilemna theory and how it applies to this case, and perhaps a better way of doing criminal trial business, the Scottish Verdict, which falls somewhere in between guilty and not guilty, in which, “…a Scottish jury can acquit for lack of proof beyond a reasonable doubt, but express its conclusion that the defendant most likely committed the crime by voting “not proven” rather than “not guilty.”
Did Judge Lynn Leibovitz give a nod to the Scots in her dicta when she handed down her verdict?
Reader submissions, especially during the dog days, are always welcome.
“If I am tardy in updating Holy Prepuce!, it is because I have squandered my available Internet time obsessively following trial updates at WhoMurderedRobertWone.com. The blogosphere is saturated with theories of this crime, so rather than offering my own, I’m going to tell you three things I find extraordinary about the murder of Robert Wone and the subsequent acquittal of Joseph Price, Dylan Ward, and Victor Zaborsky on charges of obstruction and evidence tampering.
“…obsessively following…” We’ve heard that more a few times. More obsession follows.
“First, quite obviously, the facts: It is not every day that the General Counsel of Radio Free Asia is found stabbed to death in a million-dollar townhouse occupied by a polyamorous “throuple” and filled to the brim with S&M equipment. Nor do most killings present such Poirot-worthy puzzlers: the bloody knife that didn’t match the stab wounds; the near-absence of blood; Wone’s unexplained needle marks and seeming paralysis at the time of his stabbing, yet no sign in the toxicology results that he had been drugged; the discovery of Wone’s own semen–and no one else’s–in his rectum.
Second, the throuple’s unlikely success at a variant on the classic Prisoner’s Dilemma: The circumstances of Wone’s death and the throuple’s behavior suggested, but did not prove, that each of the three was involved in either the killing or the cover-up. One has to assume that police and prosecutors offered each man more lenient treatment if he would rat out the other two.
Each man therefore knew that staying silent meant freedom if the other two kept mum, but decades in prison if either one squealed. On these odds, a game theorist would surely advise that the optimal strategy was to talk. Yet none of the men did, even as the government escalated its game of “chicken” by prosecuting all three for obstructing justice. The throuple’s mutual loyalty had great rewards–as, presumably, did their successful acts of obstruction and tampering–all were acquitted of both offenses, and none has been charged with murder.
Third, the closest approximation to the “Scottish Verdict” of “not proven” that one will likely find in an American court: A s fans of Wilkie Collins or Arlen Specter well know, a Scottish jury can acquit for lack of proof beyond a reasonable doubt, but express its conclusion that the defendant most likely committed the crime by voting “not proven” rather than “not guilty.”
American juries deliver verdicts of “not guilty” without explanation of their reasons, so they have no formal mechanism by which to acknowledge an acquitted defendant’s likely guilt. Only in the rare circumstance that a defendant elects to be tried by a judge alone–as the throuple did in this case–does the trier of fact issue written findings in a criminal case.
Excerpts from Judge Lynn Leibovitz’s Order acquitting the throuple leave little doubt that she would have found “not proven,” had that verdict been available:
“From the beginning, this case has been a test of the meaning of the reasonable doubt standard of proof. . . . As an initial matter, I am persuaded by the trial evidence in its totality, and I find, that the murder of Robert Wone was not committed by an intruder unknown to the defendants. . . . The government has thus presented powerful evidence to support its claim that Robert Wone’s murderer was either one of the defendants, or someone known to them who was able to enter without breaking. . . .
I am persuaded . . . that Mr. Price very likely tampered with and altered the murder weapon, and that he lied about his conduct in this regard to police with obstructive purpose. . . . I find that it is very likely Mr. Price altered or destroyed evidence at the scene with the specific intent to reduce its value as evidence in the imminent investigation. . . . Some of the most persuasive evidence in the record supporting the government’s position is the demeanor and conduct of the defendants.
From the beginning, each one of them . . . displayed a demeanor wholly at odds with what anyone would expect from an innocent person whose friend had just been murdered tragically and violently in his home. . . . It is very probable that the government’s theory is correct, that even if the defendants did not participate in the murder some or all of them knew enough about the circumstances of it to provide helpful information to law enforcement and have chosen to withhold that information for reasons of their own.
Nevertheless, after lengthy analysis of the evidence I conclude that the government has failed to prove beyond a reasonable doubt the essential elements . . . . My focus on the difference between “moral certainty” and “evidentiary certainty” in this case is probably cold comfort to those who loved Robert Wone and wish for some measure of peace or justice, and I am extremely sorry for this.
I believe, however, that the reasonable doubt standard is essential to maintaining our criminal justice system as the fair and just system we wish it to be. I cite the wisdom of English jurist William Blackstone that it is “better that ten guilty persons escape than that one innocent suffer.”
My Criminal Law professor once observed that he felt most proud to be an American the day John Hinckley was acquitted, because on that day he learned that a jury will acquit even a man who shoots the President of the United States on national television if the law says he is not responsible for his actions. And I have to say that I am similarly pleased to live in a country where a judge can be all but certain that one or more of the men before her is a murderer, yet acquit when the government has failed to prove the only crimes with which they are charged.
Having endeavored to say something intelligent about the Wone matter, I am now entitled to deliver what you’ve all been waiting for (and if you found this post in a Google search, what most likely contains your keywords): the Metropolitan Police Department’s list of items recovered from Dylan Ward’s bedroom:
“…racks, shackles, metal and leather collars, wrist/ankle restraints, mouth gags, black spandex hoods, assorted clamps and clips, black clothes pins, an enema kit, metal penis rings, penis vices, assorted metal chains with locks, studded penis bindings, dildos, butt plugs, nipple suction devices, a[n] electrical current/shock device, a device designed to force the wearer to drink another’s urine[,] . . . . various books relating to inflicting pain on others for purposes of sexual gratification, inflicting electric shocks on others for pleasure and pain, enslaving others for sexual gratification, manuals concerning sadomasochistic practices, books dedicated to bondage practices and the like. Many of these books contained passages highlighted by the reader.”