Not So Fast

Both Sides Work Towards a Trial Date

The first order of business for Judge Brook Hedge in the wrongful death civil suit was to set some deadlines going forward.  She wanted to see each side’s proposed scheduling orders by August 6.

They’ve been submitted.  Today, August 13, marks another deadline: due is the Defendants’ Responses to Plaintiff’s First Set of Interrogatories and Document requests.

As far as the calendar and future deadlines go, as per Hedge’s July 7 order, plaintiff and defense counsel have exchanged their thoughts on timing but have failed to reach agreement on a schedule.

While the defense seemed to be foot dragging on scheduling in the criminal trial, they are now playing hurry up.   A major point of contention between sides in when discovery is to close.

After some initial confusion at the Superior Court Clerk’s office, we’ve pulled those scheduling order docs.   The defense schedule was just submitted as an attachment with very little text to accompany.

The plaintiff’s statement that accompanied their proposed schedule notes the delays that were imposed while the criminal trial was pending, and the failure so far by the defense to “produce even one document in the case.”

And if you thought you’ve heard the last of Judge Lynn Leibovitz, you’re mistaken.

The defense wants discovery to close on December 20, 2010.  The plaintiffs suggest extending that deadline to March 15,2011, arguing that since the case was stayed for 16 months, Kathy Wone “…was precluded from taking even the most basic discovery from the Defendants or third parties regarding her husband’s murder.”

It appears they want an extra three months to turn over every rock.  Kathy Wone’s attorney, Ben Razi, then goes on to mine the money quotes from Leibovitz’ ruling on her struggle with moral and evidentiary certainty and BARD:

“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 of the death of Robert Wone.”

“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.”

“Overall, the defendants’ story that an intruder committed the offense is incredible beyond a reasonable doubt.”

Expect to see and hear more of that.

Both sides appear in agreement on one element, a March deadline for ADR (Mediation/Case Evaluation).  The plaintiff schedule goes as far as penciling in a trial date, June 13, 2011.

That could allow us just enough time to figure out how the civil process (and clerk’s office) works.

-posted by Craig

Defense’s Proposed Scheduling Order

Plaintiff’s Proposed Scheduling Order

159 comments for “Not So Fast

  1. CDinDC (Boycott BP)
    08/13/2010 at 10:48 AM

    Can a judge be called as a prosecution “witness” in a civil trial (i.e., can the prosecution get her on the stand to state her opinion regarding the trouple’s involvement in the murder?)

    • Michael
      08/13/2010 at 10:57 AM

      That would be the BEAST, YO!

    • chilaw79
      08/13/2010 at 11:45 AM

      As usual, an interesting question. In my view, the answer is “No.” The judge’s opinion was delivered from the bench in open court. Her decision, as issued, is all that is relevant (if anything is relevant).

      The interesting issue is whether there is any collateral estoppel effect in the civil case from Judge Liebowitz’ determination, beyond a reasonable doubt, there was no unknown intruder involved in the murder of Robert Wone. Judge Liebowitz did not decide whether one or more of the trouple directly engaged in the murder or whether a known intruder murdered Robert Wone. The issue of collateral estoppel is an open issue as far as I am concered.

      • KiKi
        08/13/2010 at 12:37 PM

        As far as Judge L being called to the stand, I agree that it is highly unlikely that could happen. She was not issuing an opinion as a person or expert, she was issuing an opinion as “the court”, Thus the court would be the witness not Judge L and the only thing the court knows or says is what is in the opinion.

        I know this was discussed in-depth on another thread, and chilaw is much much more knowledgeable on this front than I am but, I would argue that the only part of the judge’s opinion that could even be considered collateral estoppel is the Not guilty verdict. Unlike in civil trials, criminal trials do not have juror interrogatories or questionnaires (except capital trials in places like Texas.) Thus a normal juror verdict form would say “Count 1 we find the defendant Guilty/not guilty.” And remember Judge L in this case was acting as a juror.

        As such the only question asked of Judge L was are the defendants Guilty or not guilty of the various charges. All of the other parts of her opinion are dicta. They have no legal merit, thus I cannot see an argument where her opinion could be considered collateral estoppel. It does not mean that the plaintiffs would not vigorously argue this point. As her opinion is great for them. I just can’t see a viable argument and think it establishes risky precedent, such that a juror could later be called to testify about confidential deliberations.

        It is a shame that Bruce left I would have loved to hear his view on this point as a civil defense lawyer.

        • Bill Orange
          08/13/2010 at 2:26 PM

          As a non-lawyer, my (admittedly limited) understanding of collateral estoppel is that it would only apply if the defendants were able to fully litigate against whatever was being “estopped”. Since the defendants had no way to appeal the judge’s written ruling, it would not qualify for collateral estoppal.

          That being said, I think that the ruling WILL come in if any one of the defendants tries to bring up the fact that they were acquitted in a criminal trial. I think that Judge Leibovitz wrote her opinion in part to ensure that her verdicts could not be used by the defendants in future civil cases, and I think it’s going to be very effective in this regard. Her written ruling has essentially precluded the defendants from filing any sort of civil action against the state (e.g., malicious prosecution), and it prevents them from claiming that they were in any “exonerated” by the judge.

        • 08/13/2010 at 4:39 PM

          Lawyers (and faux lawyers): What civil law questions would you want answered of a law professor? I could pose them to a friend who is a senior professor of civil law at a prestigious law school. He is a frequent commentator on civil law issues on NPR, etc. and explains very clearly, most recently about Proposition 8. I’ve intrigued him about the case. He won’t be able to spend the time reading the blog but may be willing to answer a delimited set of questions (although he won’t know DC law specifically).

          • Hoya Loya
            08/13/2010 at 6:14 PM

            Ask whether Judge L’s finding BARD that there was no intruder unknown to the defendants has any relevance in the civil case. Likewise her finding with regard to Joe probably tampering with the knife and blood. Thanks Gloria!

            • 08/16/2010 at 2:16 PM

              Hoya: Been waiting for you to post after the weekend (which you just did). Please expand on the above so I (nonlawyer) can make sense of it. (I spent hours Friday night searching this site and googling for the meaning of BARD — I never did find it but it finally dawned on me — oh, yeah: “beyond a reasonable doubt”, duh. So that’ll give you an idea of my lack of knowledge.) I sort of understand the point of your first question but not the second. If you could write them as actual questions for me to pose (or at least expand them), I could provide the context from the case to my friend, the civil law scholar. Oh, weren’t there questions from others about the Fifth Amendment in a civil case?

              • Hoya Loya
                08/16/2010 at 2:37 PM

                Gloria:

                I am away with only intermittent access to the web, so I apologize for any delay.

                How about:

                “Is there any theory under which Judge L’s findings of fact that there was no unknown intruder, BARD, would have collateral estoppel effect in the criminal case? If not, would the findings be admissible as evidence under any other theory?”

                And:

                “Would the judge’s findings that it was highly probable that Joe tampered with evidence be admissible under any theory in the civil case? Any theory under which it might be binding on the civil court (collateral estoppel or otherwise)?”

                • 08/16/2010 at 3:52 PM

                  I’ve drafted a “relevant facts of the case,” but I need 2 clarifications, please. Q#1: Did you mean to say “criminal” or “civil” case? In “findings” (line 7) are you referring to the Judge’s opinion? Q#2: Are you asking (turning it around): Under what theory or theories, such as collateral estoppel, could Judge L’s findings (about ….) be permitted as admissable and be binding in the civil trial? Sorry, blogs aren’t meant to be a forum for editing!

                  • Hoya Loya
                    08/16/2010 at 4:42 PM

                    Yes — I meant in the civil case.

                    Judge L, in her opinion, in addition to her ultimate decision of “not guilty” as to all three defendants on all remaining counts, made a number of detailed findings of fact based on the evidence presented. These included her finding beyond a reasonable doubt that there was not intruder unknown to the defendants and that Joe probably moved the knife and wiped the cutting edge of the blade (though she could not determine his intent in so doing, hence did not find him guilty of tampering).

                    With respect to the first question, I’d like to know if by any stretch of the imagination the doctrine of collateral estoppel could apply to her findging regarding the intruder — that the issue has been fully litigated and determined beyond a reasonable doubt so as to preclude its relitigation in the civil case. Failing that, could that finding be admissible as evidence or could the judge take judicial notice of the finding — in other words could it have any place in the case short of collateral estoppel.

                    As to the second question, would the finding regarding the knife be admissible in any way in the civil case and is there any way (I don’t think so, but since we’ve got a prof, let’s ask) that might rise to the level where that would be binding on the civil court (i.e. covered by collateral estoppel). Since it was not found BARD, I can’t believe it would be, but let’s ask anyway.

                    • 08/16/2010 at 5:39 PM

                      Got it.

        • chilaw79
          08/15/2010 at 3:59 PM

          I would note that jurors sometimes can be called as witnesses regarding their deliberations, although such testimony ordinarily is provided to the judge. For example, a juror may be asked whether he or she has spoken with a third party, gathered his or own evidence, or followed a trial in the newspapers.

          Also, following a trial, jurors ordinarily are free to speak about their deliberations. Jurors may not discuss their deliberations with third parties prior to the verdict being rendered or a mistrial or hung jury being declared. I have spoken with jurors following civil cases and have spoken with lawyers after serving as a juror.

      • Deb
        08/13/2010 at 1:08 PM

        I don’t think collateral estoppel would apply, lacking mutuality?

      • Hoya Loya
        08/13/2010 at 1:40 PM

        Isn’t there a judicial economy argument to be made here? The intruder issue was extensively litigated in the prior case and the judge found beyond a reasonable doubt that there was no intruder unknown to the defendants. It could be argued that it would be wasteful of court resources to relitigate the issue in the civil case where there is an even lesser evidentiary standard. A reach perhaps, but lawyers aren’t trained to simply throw up their hands in the face of precedent.

        • chilaw79
          08/13/2010 at 2:50 PM

          While I am a little dubious about offensive collateral estoppel, if I were going to try to argue this, I would say that if Judge Liebowitz determined the defendants were telling the truth to the police when they said an unknown intruder committed the crime, Judge Liebowitz would have been obligated to acquit on conspiracy.

          Although you could argue, as KiKi did above, that every word out of Judge Liebowitz’ mouth other than “Not Guilty” was dicta (a legal term for not relevant to her decision), Judge Liebowitz specifically rejected the notion that her verdict was based on a finding that an unknown intruder committed the murder of Robert Wone.

        • Bea
          08/13/2010 at 6:08 PM

          If the argument CAN reasonably be made, Covington has the research/writing firepower to try it. My gut instinct is that not only would she NOT be able to essentially give her findings (dicta or not) is that she won’t take the stand at all. Much as I’d love it, I just don’t see there being genuine validity to the argument with or without collateral estoppel.

        • KiKi
          08/16/2010 at 9:25 AM

          I think the major problem with this argument is that the defendants were not given the opportunity or asked to “prove” that an intruder committed the murder. The defendants did not have to admit any evidence and the evidence they did admit was intended to only poke holes in the governments theory. Since the judge’s finding is only based on the evidence admitted, I don’t think you could truly say the issue was litigated or that the defendants were given a forum to prove this theory.

          In order for the estoppel argument to exist both parties had to have the opportunity to litigate the issue. I also think that under Hoya’s theory it would be an impermissible burden on the defendants 5th amendment rights to silence. i.e. their failure to refute an aspect of the government’s case could later be used against them as a litigated fact in a civil case would pose an burden on the right not to testify.

          • chilaw79
            08/16/2010 at 9:46 AM

            I am still a bit puzzled on this. The defendants clearly could have litigated the issue; they simply chose to do the bare minimum.

            The defendants all clearly stated in their police interviews that an unknown intruder committed the murder. I fully understand what you are saying if the defendants went to the police station and said “I do not want to answer any questions without speaking with an attorney,” but that is not what they did. However, through their voluntary statements to police, the defendants each posited an unknown intruder committed the crime (for those of a certain age, like Richard Kimball asserting that a “one-armed man” had murdered his wife).

            In the civil case, a “burden” or negative inference can be imposed on the defendants for failing to testify. I am sure Covington will make a record on each and every instance where a defendant invokes in the civil case, and it will be a long, long record.

            • KiKi
              08/16/2010 at 10:12 AM

              The problem as I see it is the Burden of what to introduce is actually placed on the defendant in the criminal case, if the criminal findings can be used in the civil case (aside from the verdict). I know it seems backward as the criminal case already happened. But here is the thought process:
              Under all of the burden of proof cases and many of the silence cases after Griffin v. California no burden can be placed on defendant’s right to remain silent. This right encompasses not only the decision not to testify but also the decision of what, if any evidence to present. Using the intruder situation, in the criminal trial the defendant only has to put in as much evidence as needed to create a Reasonable Doubt, but the defendant may have plenty more evidence that s/he has chosen not to introduce. For example I recently had a case where I was claiming my defendant had an alibi. I had two alibi witnesses, one was the “church lady” that saw him standing on the corner that afternoon, the other was his girlfriend with a tattoo on her face that said “Love is Pain” who was standing on the corner with him. I chose to only put on the “church lady” because I did not have to prove he had an alibi, I just had to place doubt in the jury’s mind. But if my goal was to prove that there was an alibi or I had to deal with a more likely than not standard I would have probably put on the other witness also.

              The point is that the rules, standards and strategies are so different in the criminal and civil context that I don’t think they can even fit the basic definition of estoppel.

              Further, I think that if a criminal defendant is faced with the knowledge of whatever findings are made in this criminal case are going to be used in a civil case, the defendant’s decision on what and if to present evidence is clearly burdened.

              • chilaw79
                08/16/2010 at 10:18 AM

                Thanks, KiKi.

                I just don’t see what additional evidence the defendants in this case can put on in the civil case. The defendants said they heard nothing and saw nothing.

                The only evidence of an intruder was the testimony from the next door neighbor (about the plastic turtle or whatever) which seemed to be thin gruel to me (not any where close to a church lady alibi witness).

                I guess we don’t know what we don’t know, but it seems to me the defendants are a bit boxed in by their statements to the police and are unlikely to take the stand in the civil trial.

      • Sean
        08/15/2010 at 3:30 AM

        Yeah, I think you/Kiki answered your question the exact same way I would have. I believe Kathy would likely have trouble with the “necessarily decided” element of collateral estoppel, as “intruder did not kill Robert” is not essential to the judgment of not guilty that was rendered.

        • chilaw79
          08/15/2010 at 1:10 PM

          The Government’s Opposition to the Rule 29 motion basically states the obstruction charge is based on lying to the police about an unknown intruder. Given Judge Liebowitz’ statement that it was beyond a reasonable doubt there was no intruder in her final decision, I am really a bit at a loss as to how she could acquit.

          Go back and read the Government’s Opposition (“Swann Street’s Simmering Caldron) and explain to me how anyone can conclude the defendants were not lying to the police, given the judge’s statement.

          • Clio
            08/15/2010 at 4:13 PM

            The legal definition of lying may defy the common sense one here. The trouple proffered the intruder theory only because they knew that they could not prove it. And because they could not prove it (and because of the idea that they did not know what happened and that the intruder theory was their best educated guess), they were/are not lying to police, by the legal definition.

            By nearly everyone else’s understanding, of course, the trouple knew that the intruder theory was a lie because they came up with it to cover what really went down.

            • chilaw79
              08/15/2010 at 9:50 PM

              Going back to reassess this, I decided Judge Liebowitz had an issue of intent and whether all three of the defendants had the requisite knowledge to make each of their statements purposeful.

              The judge’s conclusion that there was no intruder is cold comfort indeed.

              • 08/15/2010 at 10:18 PM

                Could you expand on the first paragraph? It went past me….

                • chilaw79
                  08/15/2010 at 11:22 PM

                  That’s OK, it went past me the first time around, too.

                  Basically, Judge Liebowitz said that she could not determine that the defendants knew they were lying and did so with the intent to undermine the investigation.

                  This is one reason why it is so hard to make an obstruction of justice case unless one of the parties talks or does something else to evidence an intent to interfere with the police investigation (for example, shooting a potential witness or threatening the witness, or even sending an e-mail to someone saying “You have to say I was with you to throw the police off my trail and give me an alibi, even though we weren’t together.”)

                  In other words, lying or misstating the facts alone is not enough; a defendant must do with the intent of interfering with the investigation. Judge Liebowitz was not willing to find the requisite intent from the conduct of the defendants, either at Swann Street or at the police station. Similarly, there was insufficient evidence of the intent behind Joe Price’s failure to identify Michael as someone with access to Swann Street on the night of the murder. Was it an oversight or intentional?

    • Clio
      08/15/2010 at 7:38 AM

      I would love to witness a verbal tete-a-tete between Lynn and Brook on this case in court or anywhere else, but, sigh, that “contest” or “debate” between two accomplished jurists will not and cannot take place. And, of course, the civil trial will be a jury one, anyway, and just having Lynn on the stand would prejudice the jury.

      Maybe, though, CSPAN can broadcast a panel of legal experts on the case in the year 2026, and the judges, by then retired, could phone in their answers to questions from the panelists.

  2. Michael
    08/13/2010 at 10:55 AM

    I can’t believe those dudes tried to close discovery in December, like a trouple of true BUSTERS!

    It’s almost as if they’re trying to protect this intruder from being brought to justice.

    • JusticeForRobert
      08/13/2010 at 12:25 PM

      It’s not “almost” as if they are trying to protect the “intruder” from being brought to justice. Thus far, they have!

  3. chilaw79
    08/13/2010 at 12:00 PM

    A June, 2011 trial date for a DC Superior Court case seems pretty reasonable to me, especially if there are going to be a lot of motions in connection with discovery. Four months for discovery is a joke in a multi-million dollar lawsuit, especially where the defendants control the facts.

    The parties are getting off to a contentious start (a fact that won’t be lost on Judge Hedge). When the parties cannot agree on a scheduling order, it’s an indication that you should fasten your seat belt because turbulence lies ahead.

    • David
      08/13/2010 at 2:00 PM

      The contention over the scheduling order sure puts to rest the thought that Team Trouple isn’t planning an aggressive defense in the civil case. Even if there is no money to be won in a civil judgement (as it has been hinted that the Trouple is cash poor after the criminal trial), it looks like both sides are fighting over princple here.

      David, co-ed.

      • Bill Orange
        08/13/2010 at 2:43 PM

        I think you’re going to see a VERY aggressive defense. Joe Price is a lawyer, and even if this isn’t his area of expertise, he’s extremely intelligent, and he’s had four years to familiarize himself with all of the issues here. He was heavily involved in the criminal case, and there’s no reason to think that he won’t be heavily involved in this one.

        What interests me most about this particular case is that the dynamics between the three defendants have changed substantially. In the criminal trial (for obstruction, conspiracy, and evidence tampering), the person most likely to be found guilty was Joe Price, because if you believe that there was some sort of conspiracy, then he had to have been the ring leader. He was also the only person who touched the body and the knife. Also, all three defendants seemed to still be on fairly good terms with one another, at least at the start of the criminal trial.

        This trial is going to be a bit different. Victor really can’t be all that happy to be revealed to the entire world as a human doormat. (The fact that he and Joe didn’t leave the courthouse together spoke volumes to me.) And the person who is most likely to be found liable in a civil trial for wrongful death is Dylan, for the simple reason that he has no alibi for the time of the murder. I think the insurance company is also going to be a bit of an X factor. They’re not going to be excited about paying out a big chunk of money under a “negligence” or “accident” clause if they think that what really happened is that one of their policy-holders or their (probably undocumented) tenant intentionally stabbed someone to death.

        • Ivan
          08/13/2010 at 4:56 PM

          Interesting thought esp about the insurance company. They have a lot of $$ at stake.

        • chilaw79
          08/13/2010 at 9:14 PM

          I think it is more correct to say that Joe Price is the only defendant to admit to touching the body and the knife.

          The problem for the insurance company is that they are obligated to defend once the word “negligence” appears in the complaint. They are not obligated to pay the judgment if the acts fall outside the policy, but they are obligated to defend. (I assume someone other than the counsel handling the case for Joe and Victor is monitoring the case for the insurance company.)

          The people I feel sorry for are Victor’s parents, particularly his mom, who had the class to express her sorrow at Robert’s death after the verdict. Listen to your mother, Victor–she’s got good instincts.

          • Liam
            08/14/2010 at 6:11 PM

            I assume the question I pose below has been asked at some point; however, if someone cares to revisit this it would be appreciated.

            If the jurors in the civil trial decide that one of the three must be guilty of the wrongful death charge, but cannot determine which one, would this support a guilty verdict? Or, can they collectively be found guilty even if the jury is not sure which one (or ones) did it?

            • chilaw79
              08/14/2010 at 6:28 PM

              In a civil case, no one is found “guilty” or “not guilty.” The question is whether the defendant is liable or not liable. In other words, the issue is whether one or more of the defendants is responsible for the injury (or death) suffered.

              It is conceivable a jury could find one or two of the defendants liable, but not all three, or find that none of the defendants is liable. For example, if Robert were killed by an unknown intruder/ninja assassin, none of the defendants would be liable for Robert’s wrongful death. (The defendants still could be found liable for the other torts, including failure to render aid, spoliation of evidence, etc.)

              Things get a bit more complicated if one of the defendants murdered Robert, but the others assisted in a cover-up or in some way assisted. Hypothetically, if one of the defendants stabbed Robert, another gave him drugs and another took pictures, all of the defendants could be liable.

              • Liam
                08/14/2010 at 9:33 PM

                Thank you. I appreciate you sharing your knowledge and insight. Always very informative.

  4. Ivan
    08/13/2010 at 2:13 PM

    I must have misread something earlier on , I thought the trial date was set for mid-September 2010.

    • Craig
      08/13/2010 at 3:12 PM

      Ivan: September 10 is the date of the next status hearing, the first in the civil case since Leibo’s verdict.

      • Clio
        08/13/2010 at 10:56 PM

        Another June trial? I used to like June events — graduations, weddings, etc. — until Lynn’s “cold comfort”, that is.

        Editors, did you ever think that it would take this long for Justice to make her cameo?

  5. Bill Orange
    08/13/2010 at 2:47 PM

    “The defense wants discovery to close on December 20, 2010.”

    Suggested response by the plaintiffs: “Defendants have had more than four YEARS to cover this up. Plaintiffs therefore ask more than four MONTHS for discovery.”

    • Eagle
      08/13/2010 at 9:49 PM

      Hi Bill O:
      In the last days, I have seen a crime specialist’s evaluation of stabbings done by the “serial stabber”. It showed one of the “serial stabber’s” victims- with a huge rugged scar from neck area down the entire torso.
      The crime expert, also an academic, stated that stabbers are very angry people – he used the word “rage” which implies sudden escalation of violence. He noted how stabbers have to get very close to the victim as opposed to a gun wound which could be done from afar.
      I thought about Robert’s neat precise, aligned stab wounds.
      Somewhat different wounds but still close up.
      For that reason, I have always thought of a ritual or or some sort of threesome collaboration.
      However, if stabbings do indicate rage, it could be that what we do not know – that is the telephone calls and e-mail could tell us- what we need to know about what part of the trio would be more likely to be motivated by rage, albeit very controlled rage at the time that Robert came to their house.
      My reading points to Victor as the most likely to be enraged the night of August 2. To me, he is the most likely to be jealous and enraged after consistently being dissed by the other two.
      Make sense to you?

      • bigfatmike
        08/13/2010 at 10:11 PM

        ‘most likely to be enraged the night of August 2. To me, he is the most likely to be jealous and enraged’

        Finally some thinking outside the box!

        You may not be right, but a really interesting point.

        I have always though the precision of the wounds is telling us something very important – if only we could understand what.

        • Clio
          08/13/2010 at 10:41 PM

          Controlled rage seems to be the key, but whose rage was it? Was it the rage stemming from Ma’am coming home to chaos from Denver, or was it from Joe taking out his anger at Victor on Robert, or was it from Dyl connecting himself to the “family” for life? Or, was it from all of the above?

          The precision, though, suggests a cold detachment, to me: the phlegmatic Mr. Ward as the actual assailant, perhaps?

          • Cara
            08/14/2010 at 3:11 AM

            Not to be off-topic, but could I ask that we remember that these are adult men with given names (not ma’am, Vickie, etc.) who are either suspected or, sadly, deceased? I know what you’re getting at, and I appreciate your insight, but these seem like playground taunts to me, and they’re taking something away from the fact of Mr. Wone’s murder, at least in my reading.

            I’ve been reading here for months, and I hope that this case will be solved. I do appreciate the depth of concern and thought on this site. Thanks.

            • susan
              08/14/2010 at 1:10 PM

              I have to say that I don’t see that myself and disagree in this instance (it’s understood that we all see and perceive things through our own filtered perspectives).

              Judge L, at least twice, used an analogy of a Mama and her children to related to a potential comparable scenario in the home. That’s where I get “Ma’am” from. And Vickie and JP’s mother and lover. There’s a lot of wit and wisdom in Clio’s posts.

              As to “playground taunts” I think when JP tells his buddies that he has info. he’s holding from the police to protect his partner and mistress from “retaliation” he’s blatantly “taunting” the Wone family. When he tells his buddies he removed and “pulled out” the knife from R. Wone and hides this info. from police–big taunt and more towards the Wones.

              • 08/14/2010 at 7:55 PM

                “Ma’am” refers to the 911 operator, in talking to Victor, mistaking him for a woman, calling him “Ma’am.”

                • susan
                  08/14/2010 at 8:31 PM

                  Thanks, Gloria. Having the judge allude to him as the “Mama” in her hypothetical scenario supports the “Ma’am” title even further.

              • Clio
                08/14/2010 at 8:32 PM

                Thanks, Susan, for those kind words; I like your insights as well.

                Cara, I used “Ma’am” to refer, as Gloria notes, to what the 911 operator called Victor, the angel and mother at 1509 Swann. Vicki was/is the name of Joe’s biomom from East Texas, and it is interesting that Victor with his name became Joe’s primary and official partner. And, as Lynn said, Victor was like a single mother with two very bad boys — the only grown-up in that “family”.

                BTW, using the feminine, to me, to refer to a man is a compliment of the highest order, not a taunt. If only Joe and Dyl were more like Victor with his self-described mature and matronly ways, none of this mess would have happened. If only Victor, as Chilaw and others point out, could channel his own mother and her caring, then a resolution of this legal impasse could be in sight.

                • Cara
                  08/14/2010 at 11:57 PM

                  I was struck by the “Ma’am” from the 911 call and then totally forgot about it. And I was probably more than half-cranky last night. I’m sorry, all, and thanks again for your good work and thoughts.

          • Eagle
            08/14/2010 at 8:18 PM

            How about Joe being in a rage because Robert would not do as Joe wanted in some way or other?

        • AnnaZed
          08/15/2010 at 12:42 AM

          I would be interested in revisiting the Victor as alpha perpetrator theory, it been moths since we chewed on it:

          http://whomurderedrobertwone.com/2009/10/14/hail-to-the-victor/

          My own current thinking is that the wound precision causes me to lean more in the Dylan direction. I think he is deeply disturbed and I think it more so after watching his interviews (interviews that I had found very convincing on paper by the way).

          • AnnaZed
            08/15/2010 at 12:48 AM

            months, jeebus

      • chilaw79
        08/13/2010 at 11:49 PM

        All of the medical experts said Robert’s stab wounds were “surgical.” Dr. Fowler, the medical examiner in Maryland, testified the wounds were very precise.

        There is an inconsistency between the “up close and personal” nature of stabbing and the precise, surgical nature of Robert’s wounds.

        From the autopsy pictures I saw in court, the wounds were not as I had imagined them. They were slit-like and not large. The stabs did target some of the body’s most vulnerable areas (including the heart). If it was rage, it was controlled, detached rage.

        • susan
          08/14/2010 at 1:09 AM

          EMT#2 did say that she saw a large hole in Mr. Wone’s chest that you could “fit your finger into.” As well, Dr. F did mention that surgical precision. Don’t know when the photos were taken or if angle of the photo played a role. The surgical precision of the wounds was the consensus though.

          • chilaw79
            08/14/2010 at 11:41 AM

            The photos were taken during the autopsy procedure. The photos showed Robert from the waist up, lying on what appeared to be a stainless steel table.

          • chilaw79
            08/15/2010 at 12:48 PM

            Thinking about this, I wonder if wounds tend to “self seal” a bit so they appear different when “fresh” as opposed to after several hours.

      • apple
        08/14/2010 at 1:33 AM

        As much as Victor seems the most “likable” and “personable” of the three, he also seems to have the most clear motive of any. I think this idea is worth exploring. It does seem to fit with the evidence, as far as I can see, better than any other scenario.

        • susan
          08/14/2010 at 1:49 AM

          If the three guys were involved I can’t see the other two going out of their way to cover for VZ. I think he liked was pissed off that night, but it seems like he took a lot of BS to maintain a familial “bond.” He agrees to add the mistress to the relationship (“We’re a family”) and since DW doesn’t have equal co-partner billing with VZ, VZ agrees that “we’re working on it.” He runs after JP to the gym, cleans up after him in the home, co-makes the bed for JP’s overnight guest he only discovers–late at night, by accident–is staying overnight. Etc. Etc. He comes off as a bit of a cuckold, but this is just one opinion. Pls. expound on yours or maybe someone else will weigh in in support of your angle. Anything’s a possibility. Too bad we don’t have Richard Walter from that V Society to do a psychological profile of these guys.

          • susan
            08/14/2010 at 1:51 AM

            likely not “liked” above.

            • apple
              08/14/2010 at 2:00 AM

              Well, I agree I don’t think Dylan would cover for VZ if he knew what was going on, but it’s possible he didn’t. Joe, I can see. He conceivably could have felt he “owed” Victor. I realize most here don’t agree, but Victor seems the most nervous in his interrogations, to me. Of course, I say this without knowing him or how he normally behaves.

              • susan
                08/14/2010 at 2:09 AM

                Anythings possible. Something to think about–VZ reaching his breaking point.

                • sixdegrees
                  08/14/2010 at 9:42 AM

                  I can’t see how Victor reaching his breaking point translates to stabbing Robert. Joe or Dylan maybe but not Robert. And the fact that the wounds are surgically precise is what has pointed to their not being the result of rage but rather calculation.

                  • Eagle
                    08/14/2010 at 8:22 PM

                    Six
                    Rage is rage and it is not usually rational.
                    Plus Victor could have been jealous of Robert for a long time- you know, the quiet one
                    finally acts out in a big explosion.
                    Somehow, Joe frightened them all into the alibi intruder scenario.
                    We dont know how yet.

          • bigfatmike
            08/14/2010 at 2:30 PM

            ‘I can’t see the other two going out of their way to cover for VZ.’

            I think you are probably right. At least that is the way I read the dynamic if the trio.

            But it is possible to dream up alternative where two would cover for VZ in order to cover for themselves.

            Please remember this just wild blue whimsy.

            Suppose that two conducted some kind of assault on the victim. Then in shock, surprise and rage a murder was committed.

            If the two give up the murderer is not very likely to lead to the discovery of their assault?

            If the assault is discovered doesn’t that leave the two open not just to assault charges but in addition felony murder charges as well.

            I assume here that the assault charges would be far more than simple assault but some kind of sexual assault.

            And If I have wildly abused the concept of felony murder, I hope one of the knowledgeable attorneys who follow this site will step in a lend a hand.

            I am sure that others can dream other alternatives where the two have to protect the murderer in order to protect themselves – and perhaps more realistic alternatives as well.

            • chilaw79
              08/15/2010 at 12:20 AM

              You have not “wildly abused” the concept of felony murder.

              If you want to read the statute, do a search for 22 DC Code 2401. Felony murder in DC when a homicide occurs in conjunction with one of the listed felonies, including first degree sexual assault or perpetration of a crime involving a controlled substance. The different between “murder” and “felony murder” is that murder must be done with purpose (a certain level of intent) while purpose is not required in connection with felony murder (homicide that occurs in conjunction with a listed felony).

              As always, I do not practice criminal law, so I would invite comments from KiKi or one of the other lawyers who are more directly involved in criminal defense.

              • KiKi
                08/16/2010 at 9:16 AM

                That is exactly right. In order to commit 1st degree murder (in most jurisdictions) one must have the specific intent to kill. i.e. The intention of the act was to kill and nothing else. Second degree murder requires a more general intent or extreme recklessness. Under this definition Felony Murder which is a murder that happens within the course of a felony would automatically fall under 2nd degree murder. But in many jurisdictions, legislatures wanted to make a higher penalty for these murders, so they created the felony murder statutes.

                Under a felony murder statute you need to have the specific intent to commit the felony but you do not need intent to kill.

                As an example, if RW was killed when he was trying to break up an argument between 2 housemates this would likely equal 2nd degree murder.

                If RW was killed in the commission of a sexual assault, even if the perps of the sexual assault had no intention to kill him, this would likely be felony murder.

                If the housemates made a plan prior to his arrival that they were going to kill RW and then followed through, this would likely be 1st degree murder.

            • Bea
              08/16/2010 at 1:03 AM

              I don’t see VZ as murderer but have thought for a while that felony murder was a possibility for JP and DW as the reason for their silence. If, for example, a trick was present and the duo + trick decided that they knew better than Robert what Robert wanted to do – and in a drug fog didn’t quite let their minds accept that this was sexual assault – but then trick killed Robert. Super Joe would know that participating in the felony assault was possibly ‘felony murder’ for him so he couldn’t turn in the trick (to save himself).

              All speculation – and perhaps it was much less or much more a direct act by Joe and/or Dylan. But it’s one possibility explaining if it was “a fourth” (trick, Michael, Phelps) who murdered Robert why they wouldn’t have turned him in.

              Victor put up with a LOT worse than having Robert “playing” (and I don’t think he did as a consensual act) with his man, so I don’t see THAT sending VZ into a killer rage. Maybe by then Joe had told him about the alt dot com ad for soliciting ‘thirds’ and that this happened while VZ was away – perhaps setting up Victor’s anxiety and anger if he’d been promised these shenanigans would stop. Even with that, I just can’t place Victor as murderer. Too, I agree with many that Joe and Dylan would have sold him out a long time ago. Joe would have gotten their joint properties AND his Sparkly Cat assuming he worked Victor correctly (and history has proven this to be quite likely).

      • susan
        08/14/2010 at 2:07 AM

        I’m sure it must be on this site somewhere, so pls. indulge me at this late hour for not looking. I don’t remember reading this: Were all three stab wounds necessary to Murder R. Wone? Would any single one of those stabs have murdered him? If he was asphyxiated (which I believe the medical examiners mentioned was possible) has it been suggested that he passed out from that or could have been murdered by that–pillow over the face. The question really is, were all those stabs required for the creature/s who murdered Mr. Wone necessary to murder Mr. W?

        • chilaw79
          08/14/2010 at 11:46 AM

          There were three stab wounds. The testimony I thought was most credible was that of Dr. Fowler, the medical examiner from Maryland, who had done thousands of autopsies involving stab wounds. His testimony is set forth in detail in comments by Leo in the posts relating to Dr. Fowler’s testimony.

          It was not possible for any of the experts to say the order in which the stab wounds occurred. It is not clear to me whether if any one of the wounds would have been fatal in and of itself (although the wound that punctured the aortic root would be a clear candidate). I do think it was clear that the stab wounds collectively were the cause of death.

          • susan
            08/14/2010 at 1:12 PM

            Thanks, Chilaw.

            • chilaw79
              08/16/2010 at 9:09 AM

              Let me add one or two more items from the testimony: one of the stab wounds (the one through the sternum) would have required significantly more force than the other two. Yet each of the wounds was remarkably similar in appearance and depth. The stab wounds also showed no signs of either being tentative or of any defensive response from Robert.

        • shawn
          08/14/2010 at 12:08 PM

          I think it is important to look at all the events of the night August 2, 2006 and not just the stabbing, which seems to be one of the last events and a huge part of the overall cover up. It seems hard to believe that Victor would fly into a rage and grab a knife, knowing the exact location in Dylan’s closet and stab Mr. Wone. The suffocation which must have happened before, was the first attempt to cover up the sexual assault, but it did not make sense an intruder would suffocate Mr. Wone, so a further step needed to be taken which most likely involved all 3. As for motive I think Dylan’s obessive behavior of Mr. Wone including making the guest bed and holding the cake at the 30th birthday party is very telling. Justice for Robert wrote something interesting under the Hate Crimes post about this.

          • susan
            08/14/2010 at 1:16 PM

            That is an interesting and kind of creepy thought, Shawn (re the making of the bed and potential obsessive behavior of DW). I’m reminded of VZ’s testimony where he says “Dylan even baked” whatever for K. Wone for their get well basket for her in the hosp. Yet, in these interviews, they really try to distance themselves from RW. “He was Joe’s friend….he was a casual friend…” We barely saw him, we barely knew him, etc. Yet DW even baked a cake? muffins? something for Kathy W.

            Who knows. All Food….for thought.

            • Clio
              08/15/2010 at 4:34 PM

              What exactly did Dyl bake for Kathy — was it a pear tartlet or a strawberry mousse eclair? For a CIA-trained cook, Mr. Ward does seem to have had a rather limited repertoire, leaving the primary partner of the house to burn the steaks. Yet, the way to anyone’s heart is through their stomach: maybe that is really why Joe kept him around.

      • dunno
        08/14/2010 at 3:12 AM

        they r vampires. they drank the blood. bsm ritual.

    • carolina
      08/14/2010 at 8:55 AM

      Brilliant, especially since a snort is hard to translate into print.

  6. CDinDC (Boycott BP)
    08/13/2010 at 9:59 PM

    Annnnnnd, what about those phone records? Is this to say that they were NOT subpoenaed in the criminal trial? Can this possible be? Takes a lot to “gobsmack” me, but……..I am.

    Since the trouple is attempting to stop this, perhaps there is damning evidence in those phone chats that has never come to light.

    • chilaw79
      08/13/2010 at 11:52 PM

      I tried to determine whether the records were stipulated. I believe some e-mails between Joe and Dylan were obtained by the government and I would be really surprised if the government did not obtain phone records, e-mail records, and similar content for all the defendants.

      Can anyone point me to the e-mails between Joe and Dylan? I can find some discussion of e-mails in the stipulations, but not of the precise content. It did seem to relate to some planning relating to the time period when Victor was out of town.

      • chilaw79
        08/14/2010 at 12:02 AM

        There is some discussion of cards and e-mails in the Government’s Opposition to the Defense Motion for Acquittal under Rule 29. These include e-mails between Joe and Dylan prior to August 2, 2006 discussing involving a “third” in their relationship while Victor was away. For those of you who are interested, the relevant entry is “Swann Street’s Simmering Cauldron.”

        This makes it clear the US Attorney’s Office had e-mails.

      • CDinDC (Boycott BP)
        08/14/2010 at 12:07 PM

        Joe’s computer was “searched” and his email account (yahoo.com), were obtained.

        I do not recall phone records being obtained. Those would come from Verizon, Sprint, etc.

        The content of the phone calls would be unknown, but frequency of calls, where they came from, and to whom the calls were placed would be revealed. A telephone call to a “unknown individual” may be revealed. Perhaps calls to the neighbor before and after the murder. Or ping locations showing someone was in a different location that night.

        I do not recall anything like this being explored by the MPD or prosecution.

    • chilaw79
      08/14/2010 at 4:30 PM

      I went back and looked at the various search warrants requested during the early homicide investigation and they did include requests for telephone records, including records related to land lines and cell phones, as well as Joe’s Yahoo account and his computer at Arent Fox.

      I did not see a search warrant issued specifically to Verizon. However, there were fairly detailed requests related to telephone and e-mail records. (I do have to say the ScribD and my computer do not always get along.)

      • CDinDC (Boycott BP)
        08/14/2010 at 9:16 PM

        requested…..but did they get them?

        • chilaw79
          08/14/2010 at 11:31 PM

          A magistrate or judge approved the search warrants. I don’t recall any opposition to the searches being conducted.

          That said, I do not recall any specific phone records from the criminal trial, although cards and e-mails were discussed in some detail in the Government’s Opposition to the Rule 29 motion (the defendant’s motion to acquit after the Government put on their case in chief, which Judge Liebowitz denied). In particular, the e-mail from Joe to Dylan expressing regret that their relationship was cooling, along with the e-mails between Joe and Dylan about bringing in a “third” while Victor was out of town.

        • chilaw79
          08/15/2010 at 4:02 PM

          Perhaps we will be able to see whether Joe managed to upgrade his cable service on the night of the murder, as defense counsel claimed in its brief in support of its Motion to Acquit.

          A request to the cable service may be in order, too.

          • david
            08/15/2010 at 4:38 PM

            Chilaw79,

            The upgrade of the cable service was one of the stiplations in the criminal trial and it did show that the service was upgraded at the same time as the defendants’ statements claim it was.

            David, co-ed.

            • AnnaZed
              08/15/2010 at 4:44 PM

              I’d call that a bit of proof in Victor’s favor then.

              • chilaw79
                08/15/2010 at 9:16 PM

                If the US Attorneys Office checked out the cable service upgrade, it sounds like they were pretty thorough.

                Sometimes I think we are a bit too tough on the police and other investigators. While this is not at all contrary to our system of justice, it can be pretty hard to convict if all the potential witnesses stop talking or stop cooperating. Not everything is the way it seems on CSI, especially in DC where responsibility for investigations and forensic work is so fractured.

    • AnnaZed
      08/15/2010 at 1:06 AM

      CD, me too, color me amazed that the phone records of everyone involved (including Sarah, and Scott and Lisa) were not part of the police inventory. Wouldn’t that be standard procedure? Wouldn’t any judge give them warrants for this basic stuff? I’m gobsmacked.

  7. Joshi
    08/14/2010 at 5:23 PM

    And don’t forget Dylan and Victor testified that they took sleeping pills that night, most likely, in my opinion, to cover up their use of either crystal meth or cocaine, in order to calm themselves down before the police arrived so that they would appear “normal”. The only other thing that can bring you down from meth quickly is grass. It would be quite easy for somebody on meth to calmly stab somebody as they can justify anything in their mind at that point. Since Victor was a well known cocaine user during most of the ninetes it seems likely that his partners are drug users or at least “weekend warriors”.

    It would be wise for the police to contact 12 step users in the local area if they want to find out more about the trio.

    • AnnaZed
      08/15/2010 at 1:11 AM

      This is the first I am hearing of Victor being a “well known” drug user, in what context was this known?

      It is interesting that you mention steppers (12-steppers, or 13-steppers more likely in Joe’s case) there has been a lot about this crime that smelled like stepper secrecy bull-shit to me; Joe not telling the cops about Michael having the keys for instance. Dylan’s drifting non-resume culminating in masseuse semi-prostitution also screams drug addict to me.

  8. Joshi
    08/14/2010 at 5:25 PM

    I meant to say since Joe was a well known cocaine user during the nineties. Not Victor.

    • AnnaZed
      08/15/2010 at 1:13 AM

      Sorry, I jumped too soon on your post, but I can see the brothers Price moving in stepper circles, not least because judges often remand people convicted of drug related crimes (Michael) to AA or NA. Not incidentally Louis Hinton’s sappy prose also reeks of stepper to me.

      • chilaw79
        08/15/2010 at 12:43 PM

        I hope you are not denigrating the work done by AA, NA, and similar organizations. These organizations certainly are not effective for everyone, but the organizations can do good work. There doubtless are aspects of AA and NA that are dated or dwell too much on religious overtones, but the organizations still are effective in getting people on the road to sobriety.

  9. 08/14/2010 at 8:04 PM

    No one has mentioned it yet, so I will: Today’s Washington Post, Metro section — Keith Alexander again — includes a brief news item about the case.
    http://www.washingtonpost.com/wp-dyn/content/article/2010/08/13/AR2010081305873.html

    “Attorneys for Wone’s family filed a request this week with the New York Supreme Court to compel Verizon Communications to release the records of the men…. In a response filed late Thursday, attorneys for the three men objected to the records request, arguing that it is a violation of their clients’ privacy. A previous request for such records was denied last year… (The judge) can settle the phone and e-mail records dispute at any time.”

    • chilaw79
      08/14/2010 at 11:33 PM

      The motion was not “denied” last year; discovery was simply stayed so as not to prejudice the criminal trial. There was no finding that the discovery sought would otherwise not be available (which is why the plaintiff could renew the motion, now).

      • chilaw79
        08/16/2010 at 11:34 PM

        Actually, I now believe the motion was denied (although apparently without prejudice (in other words, the plaintiff was free to try again later)) at the same hearing the stay on all discovery in the civil case was granted. My guess would be the earlier motion for a subpoena for the Verizon records was denied as “moot” (not really at issue) given Judge Hedge’s earlier decision to stay discovery in the civil case until after completion of the criminal case for obstruction, etc.

        In any event, Kathy Wone’s counsel has not had direct access to the Verizon records (except for those e-mails Joe gave to Kathy Wone).

        I think the plaintiff can make a good case the records are relevant since the e-mails that are known show a deterioration in the relationship between Joe and Dylan, and Joe’s attempts to reinvigorate the relationship by introducing a “third” while Victor was out of town.

    • Clio
      08/15/2010 at 7:28 AM

      Keith is keeping up with the case developments: did Dyl’s “confrontation” with the reporter outside the courtroom convince Mr. Alexander that he should cover this legal saga all the way to the bitter end? Maybe, and that’s a good thing!

      • susan
        08/15/2010 at 9:28 AM

        Clio,

        I only saw a MetroWeekly report online referencing that Tuesday, May 25 incident. How would DW know that KA was sleeping? Do you know what piece of video was being shown at the time? Also, I think the MWeekly article mentioned that it was a replay of a video snippet.

        It’s odd because the two brief times I viewed part of the trial DW sat face forward, and I never once saw him move his head left or right. When VZ whispered to him, he may have leaned his head slightly but never turned it. Never once showed any expression either.

        Other than saying “I’m offended” do we know if he said anything else? I am wondering if DW stayed focusd on the trial during all the proceedings or did he ask for a magazine to read at any point.

        • AnnaZed
          08/15/2010 at 11:07 AM

          Ha! sometimes a thread just begs for snark, and sometimes we deliver.

        • Clio
          08/15/2010 at 11:21 AM

          Well, the next time I book a massage appointment in DC or Miami, I’ll have to ask him about this off-putting bit of petulance. Just kidding, of course!

          At any rate, maybe, he had a spy in the courtroom observing Keith’s eyelids. Or, less likely, he has eyes in the back of his head. But, the whole little thing suggested that the seemingly detached and otherworldly Dylan may be human after all.

          The New Yorker magazine may have calmed his nerves a bit, but it was not in evidence at Moultrie.

          • susan
            08/15/2010 at 4:27 PM

            Couldn’t help it AnnaZ. I think nodding off in a courtroom (and we don’t know that, since that’s second or third-hand)when your reporting on a sitch is a bit less inapprop. than asking for a mag. hours after your guest was asphyxiated and stabbed three times in your home and your sitting in a police station and you have that time to think again of anything that might be relevant. Or even use that time to pray or if your not religious to weep, or if your not sad to politely sit and wait for the next step in the process.

            Does anyone know if KA responded? And what was that snippet of vid. being shown. Maybe the eyes in the back of the head thing should be considered further…

            • susan
              08/15/2010 at 4:32 PM

              You’re not “your” above.

            • Craig
              08/16/2010 at 1:03 PM

              For the record, no one nodded off in the courtroom that day, at least in the media section. Our seats were directly behind KA.

  10. susan
    08/14/2010 at 8:36 PM

    Here’s a great opp. for the guys to even further support their stated “innocence.” Sure their calls would no longer be private, but they had a murder in their house, were charged with conspiracy, obstruction of justice and tampering with evidence–and not charged. What do they have to hide? Didn’t JP tell Tara Ragone, “Ask me anything!” Surely, can’t Kathy Wone, the very victim’s widow, have the same privilege? Wouldn’t he extend the same courtesy to her? Isn’t that info. more relevant to her than to T. Ragone?

    Well, she’s asking.

    • susan
      08/14/2010 at 8:47 PM

      BTW, think about your own phone records (people reading this). Think about if you were suspected of murder. Is there anything there so condemning that you’d rather fight against access than give up the records to prove your innocence? Prob. not. Spending your trust fund or your parents trust fund, or the $ collected by your friends to withhold evidence–doesn’t make you look very innocent.

      • Bill 2
        08/14/2010 at 9:35 PM

        You’re absolutly right, Susan. My phone records would be totally boring and if they were needed for a trial of any type, there’s nothing to keep secret. These guys must have a lot to hide if they want to withhold their phone records. It makes you wonder if they’ve got calls into drug suppliers and if it happens on a regular basis. Perhaps, someone in that household was doing some supplying also. I wonder if the jury will hear about their attempts to block access to their phone records.

        • chilaw79
          08/14/2010 at 11:37 PM

          No jury will ever hear about the attempt to block access to the phone records.

          They really should not; it would be too prejudicial.

        • Bill Orange
          08/15/2010 at 9:59 AM

          My first thought was that this was simply an “oppose everything” strategy by the defendants. But the more I think about it, the more I believe that those phone records are going to be pretty damaging. Every time the defendants are scrutinized, something unsavory pops up (i.e., they search the house and find a trunk of S&M gear, they search Joe’s office computer and find naked pictures of him, etc.). And while the phone records might not reveal anything incriminatory regarding the actual murder, I think that they WILL reveal lots of evidence of illegal activity (such as drugs and prostitution).

          • Clio
            08/15/2010 at 2:23 PM

            I certainly can anticipate evidence of drug activity in the records, but will there be evidence of prostitution? Would the records suggest Joe and Dyl paid for “thirds”, or that they were charging others to play in their circus? Just askin’.

            • AnnaZed
              08/15/2010 at 3:07 PM

              I think it’s more likely to reveal little extracurricular activities on the part of Dyl to keep himself in pin-money.

  11. susan
    08/14/2010 at 8:37 PM

    and not CONVICTED (not “not charged.” Above.)

    • susan
      08/14/2010 at 8:57 PM

      Pls. excuse these multiple posts but I had another thought: Privacy?!! That is such a laugh. What’s left to be kept private?

      * Pics of S&M scenes with the mistress on the company computer?
      check.
      * Alt.com ads for other partners (did VZ know this?) describing your tastes for torture, and various other things.
      check
      * Well, the live in mistress?
      check
      *Your brother and convictions of him and his friends and partners, the break-ins, his beating you up many times in your youth, etc.?
      check
      *Your mistress’s side business? (full body massages where he places his full body on his clients–it’s Right There in the ads.
      check

      Actually, there’s so many more but it’s all here in these pages.

      What PRIVACY are they protecting? Must be something good.

      • Bill 2
        08/14/2010 at 9:19 PM

        “full body massages where he places his full body on his clients”

        Whoa! That’s really gross when you consider the guy giving the massage. Looking at his photo on “DW VCB 3 of 3”, if I had called for a massage and saw that standing on the front porch, I’d slam the door and lock it. Until the other day, I never really gave him a once over, but that awful photo, along with consideration of his involvement in the Wone killing, seems like something out of a horror film.

        If they ever need someone at the front desk of the Bates Motel, DW should apply for the job. His parents would be so proud if he could add another type of job to his resume.

        • tattoo
          08/15/2010 at 12:16 AM

          LOL, that’s a great comment Bill 2, simply great. I hate to say this, because we have been ask not to comment like this, but I would just like to add DW looks just like the scary torture guy in the first Hostel movie. When you think about the horror of that night, I guess to find reasons to giggle at these horrible guys, helps relieve some the anger pressure valve.

          • Bill 2
            08/15/2010 at 9:20 AM

            Didn’t realize we were asked not to comment about their photos so I’ll try not to do that — after this:

            I saw the picture of DW the other day and after that was listening to a “Psycho” discussison on National Public Radio. I never saw the film, but the NPR show had Norman Bates’ voice, telling how he’s in charge of the front desk and keeping the Bates Motel in shape. Dylan Ward came to mind in consideration of all his roads taken to employment that have led to a dead end street. Naturally, with radio, your mind creates the visual so DW’s photo immediately came to mind. Unless I see the “Psycho” film someday, for me, a DW look-alike will be at the front desk of the Bates Motel. When Susan mentioned DW’s massage method, connecting with that photo, makes it a big “Eeeewwww!” Do his ads have a photo?

              • susan
                08/15/2010 at 9:36 AM

                Now I’m wondering. He mentions his own “massage mat” in that ad. Is that an Asian thing or a “playmat” thing? I suppose it’s hard to use your “feet, knees…” etc. up on a massage table, but I just noticed that.

                • AnnaZed
                  08/15/2010 at 11:31 AM

                  Actually, they are not dissimilar I believe. One needs to keep massage oils and such off of the Bukhara.

              • Bill Orange
                08/15/2010 at 10:07 AM

                In all fairness, there’s really nothing in that ad that I haven’t seen in any “mainstream” massage ads.

                • susan
                  08/15/2010 at 10:35 AM

                  Where do you see these “mainstream” ads? I’ve seen DeLuca, Body Co. ads in this week’s City Paper. Nothing like the DW one. Just looked up the Blade. Found this one. These were the only things I found in my one-minute search, but http://www.washblade.biz/index.php?a=15&b=235

                  these seem pretty mainstream.

                  Anything else, like the one above, seems to be offering a LOT MORE than massage.

                  • Bill Orange
                    08/15/2010 at 12:39 PM

                    I would guess that he’s offering more than just massage based on the fact that he’s posting on an M4M site. But if you start to look at smaller massage operations, as opposed to the “big name” salons, you’ll find that a lot of the ads look fairly similar to that one.

              • Bill 2
                08/15/2010 at 10:09 AM

                Thanks, Susan. His line about “I’m honored to help facilitate this healthy pleasurable exchange” is barf-inducing when you know the business he’s representing. It doesn’t seem very honorable to me.

                • susan
                  08/15/2010 at 10:36 AM

                  There is a LOT of subtext and innuendo in that ad.

                  • Clio
                    08/15/2010 at 11:31 AM

                    I agree, Susan, but at least Dyl (at 40) had the sense and class NOT to pose topless for his ad, in the manner that others in his profession routinely do.

                    • AnnaZed
                      08/15/2010 at 11:34 AM

                      Class being a relative term I suppose, given the context.

        • carolina
          08/15/2010 at 8:13 PM

          He reminds me of the love child of Dick Cavett and Ted Bundy.

          • susan
            08/15/2010 at 8:30 PM

            I have to say, though I don’t like to comment on actual looks, that I think the “Swann 3” are not unattractive in some photos and I have found myself thinking, in hearing their speech and looking at some (clearly only Some!) things about their lives, that I might have found them nice, pleasant or relatable. They are all well-spoken, all live in DC, have done some volunteer work (JP), had an interest in children’s books, read the New Yorker, etc. Just throwing those out. But really, I have noticed that. People have all kinds of sides to them, and those sides are out there.

            • Clio
              08/15/2010 at 9:05 PM

              Well, their looks and manners play into our dominant culture’s class and racial biases — how could these sweet, delicate flowers do this terrible deed? Yet, their Jekyll and Hyde personalities come right out of the Victorian era and would probably be understandable to the original owners of 1509 Swann. And, due to their marketing and theatrical skills, the members of the trouple all thought that they could talk their way out of this mess, and they almost have. Sad!

              • susan
                08/15/2010 at 9:40 PM

                It’s true that all those social, public characteristics really say nothing about someone’s guilt or innocence. If anything, it’s good to be aware of how little that stuff does mean concerning someone’s guilt or innocence. And good point, Clio, re cultural biases. You think–someone reads the New Yorker, so How Could They Commit…etc., etc. And of course, poor New Yorker, it could be relevant, but not in a good way.

      • Clio
        08/14/2010 at 9:27 PM

        To be private: Maybe setting up three Hair Club for Men appointments, or perhaps a Brazilian bikini wax for underwear guy, on the night before? Check.

        Also, to be private: the donor list to the Price Legal Defense Fund. Check.

        And, top secret: a possible Plan A’s dumping of the body of Robert Wone in remote parts of the Manassas Historical Park in Virginia? Double check!

  12. Rich
    08/15/2010 at 11:47 PM

    I’m glad the last dozen or so postings moved AWAY from the VERY LEGALISTIC discussion that has been taking place over the past few days about the Courts, Deadlines, Discovery, Etoppel and more.

    I kinda miss all the, “SMUTTY,” discussion. You know. Anuses, Semen, Underwear, Sex Toys and More.

    Eventually, it will come back. It always does.

    And, now, we KNOW we have another years of this stuff, easily.

  13. susan
    08/16/2010 at 12:07 AM

    Thanks to Chilaw, Bea, HoyaLoya and all the other attys who post here for spelling things out for us. We now know what estoppel and dicta and some other terms mean. Thanks to you, too, Rich, for that amusing post.

  14. 08/16/2010 at 10:45 PM

    Hoya Loya articulated two questions for me to pose to my friend, who is a civil law scholar. With Hoya Loya’s help (see thread way at the top of this posting) and after I provided several paragraphs of context about this case, I posed the following questions (I hope I represented them accurately):

    “These 2 questions deal with the potential relevance of the judge’s findings from the criminal trial to the upcoming civil proceedings:

    Question #1: The Judge stated in her opinion that there had been no unknown intruder in the house, BARD. By any stretch of the imagination, could the doctrine of collateral estoppel apply to her finding regarding the intruder? That is, that the issue has been fully litigated and determined beyond a reasonable doubt so as to preclude its relitigation in the civil case. Failing that, could that finding be admissible as evidence or could the (civil case) judge take judicial notice of the finding — in other words, could it have any place in the case, short of collateral estoppels?

    Question #2: The Judge also found in her opinion that it was highly probable that Joe tampered with the (knife and blood) evidence. Would that finding be admissible in any way in the civil case and is there any conceivable way that might rise to the level where that would be binding on the civil court (i.e. covered by collateral estoppel)? (Since it was not found BARD, this is unlikely, but can you think of something?)”

    For those, who like me for a while, don’t know — BARD means beyond a reasonable doubt.

    My friend replied: “I have to give you the good lawyer’s answer –“It depends.” The majority (but not universal rule) of issue preclusion (aka collateral estoppel) is that any alternate or unnecessary findings made in Case A do not preclude relitigation in Case B. The Restatement of Judgments (2d) sec 27 takes this view. But some places say that preclusion can apply. Everything you asked about seems like alternative or unnecessary findings to me, so it depends on the rule regarding preclusion that is followed in DC.

    I don’t think that the court in Case B (civil) could take judicial notice of or treat as evidence the findings made by the judge in Case A (criminal), because that would defeat the no-preclusion-for-alternative-grounds rule. But the underlying testimony and any other evidence (as proven by the transcripts from the trial in Case A) can be used directly as evidence in Case B. (A lawyer could just have the relevant portion of the hearing transcript read into the record in Case B without recalling the witnesses.) What can’t be used (if the majority rule is followed) is the judge’s findings of fact.”

    Lawyers: Does this help? What does it MEAN in terms of moving to the civil case?

    • Bea
      08/17/2010 at 12:01 AM

      Thanks, Gloria. I think this is what most of us “guessed” (nod to KiKi for having a better understanding of criminal law than the rest of us, if memory serves). Essentially this means that if issue preclusion/collateral estoppel (there is a difference, but not for this forum) doesn’t allow for Judge Liebovitz’s findings to come in (and it seems unlikely) then that’s just it – what she found WON’T be part of this trial and the jury will never hear the words from her opinion. Likely as to either question, if I understand you correctly.

      Of course, if any witness takes the stand and says something different, his/her prior testimony would be used to show serious credibility issues. In most instances, any “good stuff” for either side will be through a live witness because it’s dull for the jury otherwise (and they do wonder about it).

      The record from the criminal trial is what it is. Covington will use the medical/technical testimony by taking it to other experts to try to undermine the defense’s (and vice versa) witness testimonies. My guess is that the issue of time of death will be hammered home (how Robert could moan/grunt if he was dead, for example) AND Covington will do its best to find corroborating evidence for the timing of Victor’s scream (on top of the Thomas’s testimony) to set up the “delay” much better. Covington will be all over (I hope) finding the tricks who responded to the alt dot com ads, get the ads in front of the jury (along with Dylan’s treasure trove of toys), get that electro-stim machine in court along with relevant testimony, get testimonial evidence of drug use and drugs-n-sex interplay (if it exists, if people are willing to testify) — in other words, put on display the activities of Swann Street when Victor was away on business. They’ll show timelines of the ads against Victor’s schedule, show emails expounding on Victor’s trip THAT night(s), if there were any attempts (for example) to find a ‘third’. In a nutshell: show the sordid details held up against these nicely dressed and successful young(ish) men.

      It would be great for Kathy Wone’s case to get the Judge’s words in front of the jury, even better to have the issues Hoya raised to be “determined” from the outset (i.e. “the jury must take as fact that there was no unknown intruder”) but NOT having it possibly opens up more ways to get in front of the jury just WHY it was that the defendants’ state of mind could prove to be so messy.

    • chilaw79
      08/17/2010 at 10:01 AM

      In terms of the civil case, it means the defendants could provide “new evidence” of an intruder. I just don’t see how the defendants would do it. The defendants’ voluntary statements to the police (which I assume will come in as testimony in the civil case) say that no defendant saw or heard any evidence of an intruder, other than “chimes,” “grunts” or a “scream.” Of course, it seems equally plausible to me that these sounds could be associated with a known intruder entering with a key.

      None of the defendants reported seeing anyone or hearing anyone on the steps or in the house. Nothing was reported missing.

      The only evidence of an intruder is the testimony of the other next-door neighbor (away at the time of the murder) and a suggestion that Joe, Dylan, and Robert noticed something in the back yard (although the police interviews translated that into a bug or spider).

      The testimony comes in; the judge’s fact finding based upon that evidence does not. I guess a corollary of that is whether the defendants will be able to say in the civil case they were acquitted of the obstruction/tampering/conspiracy charges in the civil case and have not been charged with any crime in connection with Robert’s homicide. Obviously, not guilty verdicts on those counts do not address the homicide itself.

      Is what is good for the goose, good for the gander (especially since Kathy Wone is litigating the spoliation of evidence tort)?

      Does Judge Liebowitz’ ruling just become a non-event entirely?

      • 08/17/2010 at 11:26 AM

        This is a tiny correction, but may clarify a point to new visitors. Third paragraph above about the next door neighbor testifying. (Not the Thomas’ but the other neighbor.) The witness was the (nonresident) housekeeper of the next door neighbor who testified seeing the flimsy turtle sandbox bashed in the day after the murder. Her employers were out of town at the time. Hearing the news of the next-door murder on the news, she came into DC from her home in Virginia to check her employer’s house. (Conscientious.) Finding the bashed in sandbox in the backyard, she informed the police who were in the neighborhood. What’s noteworthy is that that house apparently was empty the night of the murder.

    • Bruce
      08/17/2010 at 12:49 PM

      Oh my God, I’m back.

      But only in a limited role for now, and on a “trial” basis, to comment from a civil defense attorney’s perspective on some very interesting legal things that are now coming up in the civil trial.

      No arguments, and despite general disappointment I can already hear: no “games.” It does seem that the posters have been pretty “on topic” since I left, with one exception: do we really need the petty vicious attacks on the Swann 3 personal appearances? Doesn’t that belittle whatever meaning this blog has?

      As to Gloria’s friend, I certainly bow to his credentials and knowledge. Don’t disagree with anything he says, except one thing kind of disturbed me, but it just may be a difference in jurisdictions. Gloria reports that her friend said:

      “But the underlying testimony and any other evidence (as proven by the transcripts from the trial in Case A) can be used directly as evidence in Case B. (A lawyer could just have the relevant portion of the hearing transcript read into the record in Case B without recalling the witnesses.)”

      Now we know, of course, that the Swann 3 did not testify in the criminal case. If I understand him correctly, Gloria’s friend is suggesting here that the Swann 3’s interviews with the police can be read into the record at the civil trial, or a videotape just shown to the civil jury.

      There is also an implication in what he said that as to any witness who testified in the criminal case, their testimony can also just be read into the record for the jury’s consideration in the civil trial.

      I would disagree with those propositions, at least in my jurisdiction, not being DC. I would be interested in what the DC attorneys might say in this regard.

      As to the Swann 3 police interviews, I know this may be considered dancing on the top of a pin, but I don’t believe that they were taken under oath. Here, in my jurisdiction, in a civil case, that could be very important as to whether they can be used at all in the civil case.

      Generally, in a civil case, what someone has said in the past can only be used if that witness says something different at trial under oath. So, generally in my jurisdiction, in a civil trial, you can only use what a witness has said in the past if, and only if, that witness says something different at trial than what they said before.

      Now, I do believe that there can be some exceptions made for statements being made before trial by a witness who was not under oath at the time of the previous inconsistent statement, and this is probably up to the judge who is hearing the civil case. However, even if statements “not taken under oath” are allowed to be used, here in my jurisdiction, they could only be to “impeach” a witness on the stand in the civil case.

      Usually, in a civil case, someone’s previous testimony, or previous “statement under oath” can only be used for what is called “impeachment” purposes.

      “Impeachment” comes into play when a witness on the stand at a civil trial says something different from what they have stated in the past.

      The most common example, used all the time, is when you ask a question of a witness at trial, and that witness answers “No.” But, you know that this same witness under oath in a previous deposition taken in that case or another case, answered “Yes” to the exact same question (that is a very important point–must be the same question).

      So, at that point, you look at the witness, and then the jury, with a curious look, and say: Ms X, do you recall that your deposition was taken in this case on x date? [witness says “Yes.”] Your Honor and Counsel, I’m refering to page 133 of Ms. X’s deposition testimony, copies of which we have previously provided to you. Now, Ms. X, at that deposition you were asked the following question and you gave the following answer [the attorney reads exactly from the deposition transcript the question and the answer]. Ms. X, you were under oath when you were asked that question at your deposition, correct? [witness Ms X meekly says “correct.] And you are under oath to tell the truth today for your testimony before this jury and this honorable judge, correct? [witness meekly says, “correct.”]. Well, you were under oath both times to tell the truth, today and when your deposition was taken, correct? [witness meekly nods her head] Ms. X you need to answer out loud [witness says “correct.” I am confused, and so I need to ask you this:

      “ARE YOU LYING TODAY UNDER OATH WHEN YOU ANSWERED THAT QUESTION BEFORE THIS JURY, OR WERE YOU LYING UNDER OATH WHEN YOU ANSWERED THAT QUESTION DIFFERENTLY AT YOUR DEPOSITION?”

      Pretty powerful stuff in front of a jury! A very precise way to attack a witnesses’ credibility before the jury.

      So, I don’t think that the plaintiff’s attorney in the civil case will be able to freely put in the record the statements to the police or the videos of the same, but, again, I would defer to DC attorneys on this. A lesser problem, in my view, would be that the statements to the police were likely not under oath. As a defense attorney, I would argue if they were not taken under oath, they can’t even be used for impeachment purposes. Might lose on that one, even in my jurisdiction.

      We also have the problem that one or more of the Swann 3 may invoke 5th Amendment or otherwise somehow refuse to testify. If that is the case, then the judge might have to make some hard decisions about allowing the police statements before the jury. I still think that she probably wouldn’t allow it.

      As to the second issue, the testimony of witnesses at the criminal trial being read in to the record to the jury, I again defer to DC attorneys, but that could not be done in my jurisdiction, and I see real problems with that being done anywhere.

      Again, if that witness is called at the civil trial and says anything inconsistent with his or her testimony in the criminal trial, then, and only then, should the previous criminal trial testimony be used, and selectively, only for impeachment purposes.

      So, let’s try to get this interesting issue settled, and I defer, of course, to DC attorneys in this regard.

      • AnnaZed
        08/17/2010 at 12:51 PM

        Jeez Bruce, that’s a damned interesting post (seriously), thanks.

        • Bruce
          08/17/2010 at 1:50 PM

          I should also point out that a lot of what goes in to deciding whether something said by a witness in the past, outside of the impeachment arena, can be used at a subsequent civil trial is determined by “hearsay” rules.

          Hearsay is a very complicated issue of evidence, and may be ripe in the future to discuss here, but I don’t think it would greatly complicate our discussion for right now, particularly for non-lawyers(others may differ on this).

          But, just a little explanation. You may have heard the phrase: “Objection,Your Honor. That’s hearsay!” used by lawyers in a trial. You might then hear the judge say “Objection sustained,” or maybe “Objection overuled, the excited utterance hearsay exception applies, and the witness may answer the question.”

          You can’t just blindly use a statement someone made out of court in a civil trial. But there are exceptions to the hearsay rules of evidence exclusion. Different jurisdictions can have different ways of applying the exceptions. Some exceptions include “excited utterances” and “admissions by a party” or “admissions against the interest of the person making the statement.” These are probably the most likely to be applied to the Swann 3, in possibly allowing certain things they said in the past to be put before a jury in a civil case.

          This is different than the “impeachment” issues I discussed in the post above.

          If you can prove that the previous statement falls into a hearsay exception to the hearsay rules of evidence exclusion, you might be able to show the previous statement to the jury in a civil case. However, I am finding some difficulty in seeing any hearsay exceptions here except for “excited utterances” as to what the Swann 3 may have said immediately after the murder (but not during the police interviews). Don’t think that there were any admissions or things stated against their interest in the police interviews, to take advantage of those exceptions to the hearsay rule.

          In my jurisdiction, we would probably not even get to the hearsay issues if the person of whom it is claimed said the things in the past is actually on the stand testifying. In that situation in my jurisdiction, things said in the past by that witness testifying could only be used for “impeachment” purposes, thus only used if it was inconsistent with what the witness is saying on the stand.

          I realize this is confusing, and other lawyers can probably do better than I am in explaining it.

      • Bill 2
        08/17/2010 at 1:32 PM

        You’ve brought up some very interesting points, Bruce. OTOH, in regard to your comment about “the petty vicious attacks on the Swann 3 personal appearances,” I certainly commented on Dylan’s appearance.

        I wasn’t talking about an attorney who can look like Amos McCoy or Granny Clampett or Kate Winslet, and still make a major impact in a court room.

        I wasn’t talking about a man who comes up with a fantastic “Got Milk?” campaign since that man doesn’t pose for the posters.

        I was talking about someone who advertises his services in sex-related magazines and websites. The appearance of a sex-worker is important in obtaining work and making an income. If you’ve looked at one of Dylan Ward’s ads, you’ll note that he must feel his appearance matters to his customers since he puts his photo in his massage ads. His appearance counts in attracting customers and it can count in obtaining a third party for a threesome with another member of the household.

        Further, someone asking if Joe Price was wearing a suit the other day, is a way of getting a clue as to the possibility of his being employed. If he appeared wearing a tanktop and cutoffs, you would figure he wasn’t in some law office. Thus, appearance has a factor in discussions around here.

        Now, please, lets get back to the trial without any more of your attacks. Your legal viewpoints are very much appreciated by many people.

        • Bruce
          08/17/2010 at 2:03 PM

          Ai yi yi. Such alacrity…”trial period”….”trial period”…..”No arguments”…no “games”…moving on….

      • KiKi
        08/17/2010 at 4:05 PM

        Welcome back Bruce! And I do agree with your points on the prior statements. Especially about the oath. Albeit much stricter confrontation issues in the criminal realm, but I still have a hard time seeing a civil judge allowing unsworn (or even sworn) previous testimony in lieu of live testimony, especially if the witness is available. I do think there is a very interesting argument about the defendants’ availability if they claim a 5th Amend privilege. I seem to remember case law on this in the civil context but cannot think of any specifics.

        • chilaw79
          08/17/2010 at 4:16 PM

          Haven’t the defendants already effectively tried that by seeking to prevent the showing of the videotapes in the criminal trial (on the grounds the defendants were in custody, etc.) Judge Liebowitz permitted the videotapes as evidence and they were authenticated by the police officers.
          The interviews included express acknowledgements by educated adults (including a lawyer) that the interviews were voluntary. I think the Fifth Amendment privilege is waived as to the interviews since they were received as evidence in the criminal case.

          I do not see the defendants taking the stand in the civil trial. If they do, I think they can be asked about it if they are questioned about differences between the interviews and their civil case testimony.

          Time will tell, but I doubt the defendants will (negative inference or not).

          • KiKi
            08/17/2010 at 4:29 PM

            All of the interviews (at least the defendants’ responses) come in under the party opponent exception. Whether criminal or civil. But they do not come in as “testimony.” In the criminal context, this is a very different distinction as there is a different standard applied to testimonial vs admissible hearsay, and it is explained in the jury instructions (not sure if that is the case in civil.) This goes back to our discussion from the criminal trial and elsewhere as to whose statements can be entered against who. Who are the party opponents? 1 or all defendants?

            And they waived the 5th privilege when they gave the interviews not when they were entered into evidence. I really think that what happened or didn’t happen at the criminal trial will have very little effect on the civil trial.

            But I don’t think there will be anyway to get statements or testimony from other witnesses (say the docs or sarah, etc.) from transcripts or statements.

          • Bruce
            08/17/2010 at 4:45 PM

            Chilaw:

            You make an excellent point about the Swann 3 police statements being allowed, or portions of them being allowed, as evidence in the criminal case. Not being a criminal attorney, I had assumed (probably stupidly) that they may have been allowed in through some criminal law rule or procedure applied in court in DC.

            But it is certainly possible that the same analysis and principles would apply to both criminal and civil trials in this regard. And, if in fact the civil judge can allow them in on the same grounds as did the criminal judge, then I am “all wet.”

            For hearsay purposes, I don’t recall that “voluntary” or “acknowledged,” the two items you mention in your post, are hearsay exceptions, to allow them in at a civil trial. Could the criminal judge have deemed the videotapes to be so credible and proven as authentic that she didn’t even apply hearsay rules to them?

            Who knows, maybe it was a bit of an unusual or gutsy move on the criminal judge’s part to allow them in, and the defendants in the criminal trial thought that if they were found guilty in the criminal trial, that this would be good grounds for appeal.

            Or again, I could be ‘all wet,’ and there was an easy zippidy doo daa way to allow them in at the criminal trial that would also allow the same at the civil trial.

            I tend to agree that if the Swann 3 refuse to testify in the civil case that things get a bit sticky. I wonder if the criminal court’s decision to see the tapes was based upon the Swann 3’s decision to invoke their right to not testify at the criminal trial.

            So, let’s say the Swann 3 decide, for Fifth Amendment reasons, to not testify at the civil trial. The plaintiff tries to introduce the videotapes of the Swann 3 police interviews, or the transcripts at trial. The defendants object.

            If the civil judge applies a “hearsay” analysis, I’m not sure I understand what hearsay exception would apply to let them in as evidence. If the civil judge says they can be used for impeachment only, that is a “nothing” ruling, because if they don’t testify, there is nothing to impeach.

            My thought is that there may be a hearsay exception used in the criminal courts (and maybe civil courts, too) of DC, or some other rule that allowed the admission of the tapes in the criminal trial.

            No use knocking this around much longer. I’m sure someone on here can help us out. Come on, children, and you too Carol Ann, and walk towards the light!

            • Bruce
              08/17/2010 at 4:56 PM

              I should also mention that if the videotaped statements are allowed in at the civil trial, I think that there is a greater chance that the Swann 3 may all testify, 5th amendment be damned.

              What could be worse than those tapes? And if the plaintiff’s attorneys ask them anything outside of what they said in the tapes, they can’t be impeached, and can say what ever they want (but of course being under oath to tell the truth). Can you imagine Joe up on the stand being asked a question that he knows he can’t be impeached upon?

              There are much different reasons to not testify in a criminal case as opposed to in a civil case.

              But clearly some of the same risks apply, particularly with a prosecuting attorney watching everything for possible murder charges.

              I’m not saying that they are going to give up 5th Amendment rights to testify in the civil trial if the videotapes or transcripts of the police interviews are allowed in as evidence. I’m just saying that it will likely not be a “slam dunk” decision as it was in the criminal case, to not testify.

              • 08/17/2010 at 5:12 PM

                I seem to remember many reasoned arguments, with surety, as to why it was a “slam dunk” that Joe would testify in the earlier trial. Including his showmanship, narcissism, etc. And yet he did not.

                You ask: “What could be worse than the tapes?” Uh, what’s so bad about the tapes, from the defendants’ point of view? Most or many of us have been impressed — both in written transcripts and in the videos — with the performances of VZ and DW. Including those CONVINCED of their guilt before, who were then entertaining doubt about their guilt. Of course, Joe is a different case; tomorrow we’ll have our fill of him. But, Bruce (BTW, I’m REAL glad you’re back), on what basis do you state the tapes thus far viewed are so bad for the two?

                • Bruce
                  08/17/2010 at 5:23 PM

                  You know, Gloria, you make a good point, as usual.

                  I may be assuming too much here. I assumed that these tapes or transcripts played a large or essential part in the criminal judge’s difficulties with finding the Swann 3 not guilty. Many people here on this blog have found much to criticize with the Swann 3’s demeanors and some “odd” things they say on the tapes.

                  It is my understanding, but again I assume, that the Swann 3 fought to keep those tapes and transcripts out of the criminal trial, so they must have thought that the bad outweighed the good.

                  I was probably over-dramatic when I said “What could be worse…..” and your point is well taken.

                  • Bruce
                    08/17/2010 at 5:40 PM

                    Also, Gloria, I should have never used the term “slam dunk” regarding the trial testimony in the criminal case.

                    You just never know what is going to happen in any trial. There are always unknowns.

                    The past
                    governor in my fine state, Gov. Blaggo, told everyone that would listen (including on The Apprentice) that he was going to testify at his criminal trial for corruption, and his attorney actually told the jury in opening statements that Blaggo would testify.

                    Guess what….he didn’t testify (and the jury is now out for 12 days and counting).

                    • chilaw79
                      08/17/2010 at 9:14 PM

                      Probably a good idea for the Governor since he was convicted on only one count (if I heard the news correctly).

              • Bea
                08/17/2010 at 8:58 PM

                My guess is that the Defendants will invoke the 5th for nearly all of their depos – can they afford NOT to is the question – and same for trial. Different impact, of course, but important that no murder charges have been brought (unlike OJ, for example).

                I was one who thought Joe might insist on testifying but never came close to saying it was a ‘slam dunk’ – don’t know if anyone did but I’m getting older and my memory is fading. Will be a very interesting decision to be made by the Defendants (and soon, as I suspect they need to nail that down before depositions).

            • KiKi
              08/17/2010 at 4:58 PM

              FRE 801 d

              A statement is not hearsay if–
              (2) Admission by party-opponent. The statement is offered against a party and is

              (A) the party’s own statement, in either an individual or a representative capacity or

              (B) a statement of which the party has manifested an adoption or belief in its truth, or

              (C) a statement by a person authorized by the party to make a statement concerning the subject, or

              (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

              (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

              • Bruce
                08/17/2010 at 5:11 PM

                Great point, Kiki, on the federal rule regarding “admission by party opponent.”

                The federal rules only apply to federal courts, like the criminal court in this case, but many states ‘adopt’ some of those rules, sometimes with changes.

                The civil trial will not be in federal court. Anyone know if DC state courts have the same or similar 801(d) rule?

                I’m suprised that “admission” would be applied so loosey goosey. I guess it does not have to be an admission against one’s interest, huh? Well, then I guess anything and everything could be considered an “admission.” Why have any rule at all?

                If the Swann 3 testify at the civil trial, and their testimony is not inconsistent with the statements to the police (and they won’t be), I still find it hard to think the police interviews will be allowed in as evidence. Pretty prejudicial to the defendants for the jury to see them under those conditions, particularly if the defendants are saying nothing different at trial.

                Maybe it is just me.

                • Clio
                  08/17/2010 at 9:12 PM

                  It is just you, Bruce, and Kiki, of course, but I for one would not want you all to be here in any other way but your “contrarian” selves. Welcome back!

                  Both of your posts were especially fascinating today, but wouldn’t the police interviews just supplement or confirm what the Swann Street Three would say at trial. A tautology, no? Why then that confirmation would that be prejudicial?

                  Furthermore, the spartan setting of the Dialogues would be expected by the jury, whose members, however humble, would not be impressed with the detectives’ interviewing skills. Any effort to exclude the Dialogues and their screening in civil court would seem to be, then, an overly fussy distraction in favor of the defense, to me. But then again, that’s just me, and … most everyone else watching the case.

                  • Bruce
                    08/17/2010 at 11:06 PM

                    Hi Clio:

                    It may just be that neither side really gives a “hoot” as to whether the tapes or transcript actually come in at the civil trial. The defense may want them in just to show how consistent everyone was, how the Swann 3 did not ask for attorneys right away and how they tried to answer every question, and how some of the police in the tapes seemed a bit old-fashioned and “unfair” to the Swann 3 (tying this to a defense theory that the police didn’t know what they were doing).

                    Each side will just make “lemonade” of it at trial in either event.

                    I do have the feeling, however, that on principle that the defense will try to bar the tapes or transcripts of the police interviews, for, if no other reason, the simple fact that the plaintiff has the burden of proof in the civil case and must prove her case (the defendants do not have the burden to dis-prove the claims against them), and the Swann 3 don’t want to make that burden any easier on the plaintiff.

                  • chilaw79
                    08/17/2010 at 11:14 PM

                    I agree that a jury could have a bit more sympathy or empathy with the defendants after viewing the police interview videotapes. I doubt that most potential jurors will have been inside the Violent Crimes Bureau or been subject to a police interrogation.

                    Also, presenting the videotapes gets the defendants’ side of the story out without an opportunity for cross-examination or further questions. Of course, each defendant can conduct discovery with respect to the other defendants and may be able to ask some interesting deposition questions themselves (although I somehow cannot see this happening).

                    Unless and until there are motions to compel or for sanctions, discovery is going to take place largely out of the watchful gaze of WMRW.

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