Twenty (One) Questions

When Answers Answer Little

Monday we took at look at the pile of Joe Price emails sent from his Arent Fox office that Plaintiffs have requested in their Motion to Compel Production.  As we only have logs at this point, we learned little concrete other than dates, times, recipients, and one unusual name.

Also part of the Motion are Exhibits 16, 17 and 18 – the answers to Interrogatories by Joseph Price, Victor Zaborsky, and Dylan Ward.  Again, the hard facts we learn are few, as all three defendants either took the Fifth or objected to the questions, with one exception: they each gave their name and occupation.   (For the record: “Joseph R. Price, attorney”, “Victor Zaborsky, Self-Employed Consultant”, and “Dylan M. Ward, unemployed.”)

However there are things we can glean from these pages, with the help of sharp legal eyes…after the jump.

While mostly identical, there are subtle differences in the three documents.   First, the when and where.  Dylan’s is notarized August 18, 2010 by a notary in Washington State; Joe is next on the 19th in the District, and Victor last on the 20th – either here in DC or at his attorney’s offices in Hunt Valley, MD.  The notary stamp on Zaborsky’s response is missing so we can’t determine his exact whereabouts.  Suffice it to say,  Ward being on the West Coast says something about the current state of the threesome.

All three were asked the same 21 questions, with one additional question posed to Dylan at the end.  Before submitting answers, Victor’s attorney uniquely offers this preliminary objection:

“The U.S. Attorney has openly stated its intent to continue pursuing its criminal investigation against this Defendant, which could result in additional criminal charges being filed against Defendant Zaborsky.  In light of this fact, Defendant Zaborsky must exercise his right under the Fifth Amendment to the Constitution of the United States to decline to answer these Interrogatories, as any substantive answer to these Interrogatories may jeopardize his right to assert his Fifth Amendment rights in the future. “

As a side note, both Joe and Dylan’s representatives could have raised the same objection, given MPD Chief Lanier’s repeated comment that the Wone case remains “very active.”  So why was Team Victor the only one to raise this point?  Is Victor perhaps somehow different?

The Interrogatories broadly seek any information the defendants may have that would shed light on what happened on and around August 2nd, 2006.  Some examples:

#3: “Identify all persons present at the 1509 Swann Street residence at any time on August 2, 2006.”

#4: “Describe in detail the circumstances and events surrounding the murder of Robert Wone on the night of…”

#5 “Describe in detail any and all bases for your contention that an “intruder” murdered Robert Wone.

To these and many other questions, the answers are exactly the same:

“Upon advice of counsel, at this time Defendant exercises his right under the Fifth Amendment to the Constitution of the United States to decline to answer this Interrogatory.”

There are exceptions.  For example, in response to Interrogatory #11 -asking for details of any and all physical contacts anyone had with Robert, specifically (but not limited to) the “…introduction of drugs, medications, or foreign substances…” into Robert, or “…whether or how you or any other person(s) physically or sexually assaulted Wone…”, all three respond:

“Objection.  This Interrogatory seeks information that is irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and is meant to serve no other purpose than to embarrass, humiliate, and disparage Defendant.”

That said, all three then again plead the 5th.  64 questions, and all we have are names and occupations.

So what can be learned from three men who refuse to answer any questions?  Perhaps the refusals themselves provide insight.

“This is highly unusual, and not at all normal for a civil case,” notes Alexandria-based attorney Dale Edwin Sanders who has been following the Wone case.

No-one can be forced to provide information that would expose them to possible criminal charges – that’s in the 5th Amendment, and a fairly uncontested statement.  However, unusually for a civil trial, the defendants here are still alleged to have committed a crime that prosecutors say remains an on-going investigation.

This puts the Swann Street three in a tough spot.  Answer the questions, and you may put yourself at risk.  Plead the 5th, and go on record with the jury as keeping silent to not self-incriminate.

The exception, says Sanders, are the objections.  If those objections are sustained by a judge, the jury would not be able to consider either the question or the answer – wiping it clean.  That said, questions which are not objected to are fair game.  “Answering with the 5th is basically acquiescing to the legitimacy of that question,” says Sanders.

So could the defendants have simply objected to every question? Perhaps, but that may not be a smart strategy.   Frivolous objections are unlikely to be sustained by a judge, and attorneys who engage in clear obstruction can be penalized.  The end result: the jury will still only see defendants who plead the 5th.

“Juries get in that jury room and they want to know what happened,” says Sanders.  “Sometimes the judge’s instruction on the law are either ignored or not fully digested.  They don’t like defendants who appear to duck and dodge every question.  And there will be heated debate about why the defendants chose to plead the 5th, which will include the question ‘…if they didn’t do it, why not just answer the questions?'”

Pleading the 5th, as an answer, can be unsatisfying.  It can also be risky, raising doubts as to whether someone is hiding something they know.

Defendants’ Responses to first set of Interrogatories

265 comments for “Twenty (One) Questions

  1. Rich
    09/22/2010 at 11:34 AM

    No more information on the whereaouts oF Victor and Joe?

    Might they have split up? Split residences?

    Are they with Family or Friends?

    Enquiring minds wanna..

    And, Dyl may oly have been in Washington State at that time and is back now with his co-horts?

  2. 09/22/2010 at 1:15 PM

    Doug: The link in the first paragraph (to “one unusual name”) leads to a closed account Flikr page. Did you mean Dyl is the one with an “unusual name”?

    • TT
      09/22/2010 at 1:18 PM

      Just experienced the same thing???

      • denton
        09/22/2010 at 1:22 PM

        Me too, nothing there!

        • David
          09/22/2010 at 1:23 PM

          This is the closed account of “savormassage01”, which was another screename/e-mail account for Dylan Ward.

          David, co-ed.

          • Bill Orange
            09/22/2010 at 3:35 PM

            Do we know how Joe and Dylan met? It strikes me as odd that Joe would have a folder for Dylan’s screen-name, rather than just putting those e-mail’s in a folder labelled “Dylan”. Unless, of course, they met online, in which case “savormassage01” would be the first name that Joe “knew” Dylan as.

            • David
              09/22/2010 at 3:46 PM

              Bill,

              That is an excellent question re: when and how did Dylan and Joe meet. We have pondered that ourselves. It is my guess that “savormassage01” wasn’t created until after they met because Dylan wasn’t doing massage at the time he moved in with Victor and Joe — he had just graduated with his Children Lit’s Master, and was looking for work in that area. The massage career came later in the relationship.

              David, co-ed

              • CDinDC (Boycott BP)
                09/22/2010 at 4:01 PM

                An interesting thing about “savormassage”…if you google “savor massage” you are going to get myriad hits on “how to please a (fill in the gender).” Seems it a mantra of sorts. Dylan must have plucked those too words from the mantra to create a screen name.

                My question is who was be pleased? Joe or Dylan?

                • Clio
                  09/22/2010 at 9:57 PM

                  The word “savor” does make one think of a talented chef, and so Dyl may have been just (consciously or unconsciously) transitioning into his latest vocation.

                  Yet, I had thought Lil Dyl was self-employed rather than unemployed. Or, has he given up the increasingly routine rounds of Swedish and shiatsu for, perhaps, say a religious order?

                  • Rich
                    09/22/2010 at 10:47 PM

                    Unemployed is happily Self Employed.

                    Or, is it reversed?

            • CDinDC (Boycott BP)
              09/22/2010 at 3:53 PM

              I’m stretching far back in my memory banks, but didn’t the former Constitution Ave tenant know Dylan and took over the rental?

              I seem to recall a mutual connection between Joe and Dylan.

              • CDinDC (Boycott BP)
                09/22/2010 at 3:54 PM

                (re-read my post….let me clarify)

                Didn’t the former Constitution Ave tenant know Dylan and when that tenant moved out Dylan moved in.

              • David
                09/22/2010 at 3:55 PM

                CD — Yes, Peter Derenbach (sp?) was an Arent Fox associate who was the tenant on Constitution and knew Dylan.

                David, co-ed.

                • CDinDC (Boycott BP)
                  09/22/2010 at 3:57 PM

                  Yay. My memory banks are still serving me well.

                • Bea
                  09/22/2010 at 9:18 PM

                  Yep, Peter Dernbach. I think it was reported that he knew Dylan and introduced him to Joe as a possible renter. What a bad idea that turned out to be for Robert Wone.

                  • Clio
                    09/22/2010 at 10:06 PM

                    No doubt, Bea! I trust that Covington lawyers, though, have friended handsome Peter on Facebook in order, in part, to get some dirt on Dyl.

                    • denton
                      09/22/2010 at 10:48 PM

                      Martindale listed Peter Dernbach an IP Partner at Winkler Partners. He is also on facebook, and very handsome.

                    • susan
                      09/22/2010 at 10:49 PM

                      Don’t forget- P. Dern-
                      bach is
                      F’book friends with
                      Louis
                      Hinton.

                  • denton
                    09/22/2010 at 10:22 PM
                  • Kate
                    09/23/2010 at 11:22 AM

                    Thanks all for the links.

                    And now for a meaningless observation: Mr. Dernbach has many Asian “likes” and friends.

                    But then again, his favorite TV show is Glee.

                    • Kate
                      09/23/2010 at 11:25 AM

                      Sorry about the above.

                      Just went to the other link and he works a great deal in Taiwan.

                    • carolina
                      09/23/2010 at 9:26 PM

                      He’s FB friends with M Price’s brother and he likes all things Asian.

                      You know, there isn’t an agent in town that wouldn’t laugh at this as a ridiculously overwrought plot.

                      The whole thing is just Byzantine.

  3. denton
    09/22/2010 at 1:58 PM

    Thank you so much, David, for letting us know re: occasional “hick-up” that the other party have purposedly removed. Was it a part of an evidence of a defendant’s lifestyle?

    Re: [4] Answers to Interrogatories

    All 3 defendants answered Interrogaty No. 1 (which is nice so prospective jurors would know your names, but not much who you are).

    Exhibit 16 – answers from Joseph P. Price
    21 total Interrogatories
    10 answers – taking the Fifth
    10 Objection[s]

    Exhibit 17 – answers from Victor Zaborsky
    21 total Interrogatories
    18 answers – taking the Fifth
    1 answer to Q.20 re: State Farm and Casualty Company homeonwer insurance policy with J.Price
    1 answer to Q.21 – Irrelevant

    Exhibit 18 – answers from Dylan Ward
    22 total Interrogatories
    18 answers – taking the Fifth
    3 Objection[s]

    As a layperson like me, it would be tough on potential jurors to sit in this trial as they would be “blindfolded” with not much information to absorb. I totally agree with Dale Sanders’ comments.

    I would just have to prayer that the Motion to Compel is Granted so we know more about the defendants’ motive, and what was led to the crime the night of August 2, 2006. It also would give new windows of opportunities to the defendants to “come clean.”

    OR, perhaps, hang themselves.

    It is a very interesting case to follow, no doubt.

    Now, back to Bruce, would you agree with me The Honorable Judge Bruce? I am about to “excuse myself from this case as my head already hurts!”

  4. Bea
    09/22/2010 at 2:23 PM

    It was really ballsy (and stupid) to take the 5th on the questions of what were your cell phone numbers and who was the security system company you used. I don’t think the judge will look favorably on this response – if they’d at least given a reasonable shot at limiting the use of the 5th, maybe she’d had have to do some serious legal parsing – but THIS? Just plain silly in my view – tantamount to a ‘taunt.’

    And I hope the judge makes Joe say if he’s employed or not – it was a non-answer in saying “Attorney.” Of course he’s an attorney so long as he has a license – doesn’t mean he has a JOB. Inquiring minds want to know if he’s doing document review by the hour and for which firm (or legal temp agency).

    • Bill Orange
      09/22/2010 at 3:33 PM

      My take on it is that they’ve pretty much written off the civil trial and are focused on staying out of jail.

      • Bruce
        09/22/2010 at 5:36 PM

        Hi Bill O:

        I’m beginning to think the same. What would you prefer:

        PICK ONE:

        (a) a life in prison?; or
        (b) paying a portion of your earnings for the rest of your life?

        • 09/22/2010 at 6:05 PM

          The old Jack Bennie joke (his reputation, for you young ones, was as a skinflint):

          When stuck up by a robber and told “your money or your life,” he pauses a looooong time and deadpanned, says “I’m thinkin’, I’m thinkin’.” But here, no contest.

          • Deb
            09/23/2010 at 5:22 PM

            I get Bennie … But can you help me with “skinflint”? 8o)

            • Bill 2
              09/23/2010 at 5:53 PM

              Jack Benny’s “character” on his radio and TV shows was portrayed as a miser, cheapskate, skinflint who played an awful violin. In real life, he was a generous man who played the violin wonderfully – but that wasn’t funny.

          • Deb
            09/23/2010 at 5:29 PM

            I think Paul is Dead was in I am the Walrus. Koo koo ka choo.

            • Hoya Loya
              09/23/2010 at 6:52 PM

              It’s at the end of “I’m So Tired” on the “White Album” (“Paul is a dead man miss him miss him miss him!”) And, played forwards, at the end of “Strawberry Fields Forever” (“I buried Paul” — though Lennon always insisted it was really “Cranberry Sauce”). “I am the Walrus” actually contains a substantial excerpt from King Lear!

              • Clio
                09/23/2010 at 11:12 PM

                Groan! Not another Shakespeare reference — say it ain’t so, Joe! LOL!

                • Kate
                  09/23/2010 at 11:23 PM

                  Hello Muse – we usually aren’t on at the same time.

                  Still wondering why you liked Lil Dyl’s green and white tennies,

                  • Clio
                    09/23/2010 at 11:32 PM

                    I heart green, as in How Green Was My Valley or Green Acres.

                    Indeed, all Dyl needed was a green carnation in his hair; the green carnation, of course, was a secret sign wore by elite gay men in Europe to identify each other during the 1890s.

                    • Kate
                      09/23/2010 at 11:49 PM

                      Ah-ha – thank you for the factoid – I’ve always thought it was in the lapel!

                    • Kate
                      09/23/2010 at 11:50 PM

                      Love green Acres, as well!

            • Kate
              09/23/2010 at 11:21 PM

              Thanks Deb and Hoya –

              Did something go amiss in the sequence?

        • Rich
          09/22/2010 at 6:13 PM

          I’ll go for a lifetime of retiring the debt.

          Prison is NOT pretty.

          Not even for our PRETTY BOYS who can get be in even more trouble, if they do not ugly up FAST!

      • susan
        09/23/2010 at 8:37 PM

        Bill O.: It seems you really hit the nail on the head with that observation/theory. But will the judge play along is the real question…….

    • denton
      09/22/2010 at 3:47 PM

      I can’t see any of defendants are “employable” because there is a question on a job application form asking if you have a pending charge (not to mention whether they have committed a crime and took the Fifth). Plus, potential employer WILL do “background check!”

      • CDinDC (Boycott BP)
        09/22/2010 at 3:56 PM

        Denton says: “because there is a question on a job application form asking if you have a pending charge..”

        But they aren’t charged with anything anymore.

        • denton
          09/22/2010 at 4:20 PM

          You are absolutely correct. Private sector, Federal and State application forms are totally different and many of them were updated constantly. I remember seeing below:

          Legal and Administrative Proceedings employment questionnaire

          Please list any lawsuits you or your spouse have brought as a plaintiff or which were brought against you or your spouse as a defendant or third party, or in which you or your spouse have testified at trial or deposition. Include in this response any arbitrations, mediations, and contested divorce proceedings or other domestic relations matters. etc.

          I can only see a red flag if I were to interview a potential employee reading their history in print.

      • Rich
        09/22/2010 at 5:10 PM

        Dear Denton:

        The following may have taken place prior to your arrival to WMRW. I cannot remeber.

        Go to the bottom of the WMRW Home Page and click on page Five for the following:

        Help Wanted?
        07/21/2010
        By Craig

        it may asnswer all of your, “Background Check,” questions.

        They will skate by.

        Just need to be upfront and forthcoming abut the matter They jefore the search begins.

    • Bruce
      09/22/2010 at 11:05 PM

      Hi Bea:

      Certainly agree with you. The defendants are taking a “blanket” 5th Amendment objection to each and every question, even those clearly that should be answered, as you point out (name of vendor or service com. for security system, etc.).

      Not aware of any precedent for such a “blanket” approach. Doubt the judge is going to appreciate that.

  5. Michael
    09/22/2010 at 2:29 PM

    re-arrange the letters in dylan, victor, and joe and you get…

    ACTOR JOY IN VELD

    more fun, after the jump: http://wordsmith.org/anagram/

    • denton
      09/22/2010 at 2:47 PM

      I kinda haven’t gotten over that police “blue light” yet, Michael. Now I think I kinda … gotta … ahh .. ahh .. an “epilepsy!”

    • Bruce
      09/22/2010 at 11:07 PM

      Hi Michael:

      I think you have found the answer to the question of this blog. More anagrams!

      Has anyone tried to listen to the tapes of the police interviews backwards?

      • Kate
        09/23/2010 at 10:26 AM

        Sorta like listening to the Beatles “Hey Jude” backwards?

        Although I was but a wee lass at that time, I seem to recall that if you played the song backwards, you would hear that, “Paul is dead.”

        Do I remember that correctly?

        It’s nice to know that Sir Paul is still alive and well.

        • Rich
          09/23/2010 at 10:40 AM

          Oh, yea.

          There were loads of stories of the Beatle’s demsise back then.

          All related to the same rumor.

          And, it got a lot of mielage at the time.

  6. Michael
    09/22/2010 at 2:39 PM

    In all fairness, most people caught up in such an extraordinary “situation” would also plead the 5th.

    It’s best to keep your mouth shut and let the attorneys do the talking. There’s a greater risk in prosecutors using your words against you. You could say something as simple as, “I ate a bagel” and they could dissect it for days. But if you keep quiet, all they can really do is point out the fact that you’re being quiet.

    With all that being said though, if I really was in this “situation”, I would man-up and tell my side of the story. The fact that my two buddies want to keep to themselves, that’s their problem.

    • Kate
      09/23/2010 at 10:38 AM

      Morning Michael – I concur regarding their reasons for pleading the 5th, especially when one considers how their words during their “Anacostia Dialogues” were used against them during the criminal trial. Also include the fact that by keeping quiet thereafter, they were acquitted by Judge L., albeit quite grudgingly. And then there’s that pesky open and active murder investigation going on ..

      If I found myself in this “situation,” I would man-up and tell my story, as well. But only if I was truly innocent.

  7. 09/22/2010 at 4:36 PM

    I am more fixated on the questions asked than the (non)answers. First, to what extent does it appear that the plaintiff’s questions were designed with a prior presumption that the defendants would “take the Fifth”? How would that informed presumption have impacted on the nature and/or wording of the questions?

    Q#2 and 10 are, as the defendants complain, overly broad. As a juror hearing these questions, I would be sympathetic to the defendants, feeling the plaintiff was harassing, conducting a fishing expedition. Could the scope have been narrowed, at least to exclude all “known knowns,” such as videotaped interviews with the police, the FBI lie detector test, discussions with their attorneys (knowing those would be protected under attorney-client privilege), etc?

    On the other hand, I’m surprised that the defendants invoke the objection of “irrelevance” on Q#11, 16, 17 where the answers (e.g., any prior break in’s, drug use) would be clearly relevant to the civil case. I could imagine other grounds for objections, but “irrelevance” seems inappropriate as an objection.

    Q#4b (means of transportation used by Robert that night): While the time of his arrival is relevant, I cannot divine the relevance of whether Robert walked or took a taxi. Why would the defendants know or care how he arrived? Since the plaintiff’s side is smarter than me/I, what might the plaintiff know or speculate about that detail?

    I keyed in on the use of the word “describe” in some Qs. Describe the basis of … , etc. sort of fits. But I question the employment of “describe” (rather than “explain”) why no blood-soaked towel/cloth was found. Is the use of “describe” there incorrect vocabulary or does “describe” have a legal implication? Also, like Bill Clinton’s definition of “is,” the use of “blood soaked” could be questioned. A towel with blood was found, but what constitutes “blood soaked”?

    Q#8: Reference is made only to telephone calls and only after finding Robert’s body. Does “telephone” here include the other devices itemized in Q#9? Q#9 broadens the timeframe to the whole day.

    Q#15: It seems unlikely that the police did not obtain information about (and from) the house alarm vendor in all this time. Assuming so, asking that question seems on a different order of magnitude than the other questions asked. Maybe not?

    I would have asked:
    About Sarah’s absence from the house that night. About Scott Hixson’s whereabouts and contacts with him that night. When we first discussed his observing the midnight scene from his window perch, I agreed that he should have stayed put, not interfering. On second thought (directly across the street, warm night, “connected” enough that Joe included him as a person to call to come to Anacostia), my reassessment is that he would have gone outdoors to inquire what had happened in his friends’ home. In describing messing with Robert’s body, I’d ask about any contact with Robert’s mouth guard. I guess the issue of telling Officer Durham that Robert was found on the patio is covered, right? Did Joe “tamper” with Robert’s cell phone that night?

    Finally, why are legal documents double spaced, especially when the margins already are wide enough to make notations? Is there no environmental consciousness in the legal profession? Or is there a commercial tie in between the justice system and paper or photocopying companies?

    • CDinDC (Boycott BP)
      09/22/2010 at 4:46 PM

      Re your third paragraph and “relevance”…….attorneys please weigh in…..is ANYTHING truly irrelevant in a civil trial? I can understand “irrelevance” in a criminal trial as many things can be and are excluded during the course of pre-trial proceedings, but in a civil trial?

      • Cat from Cleveland
        09/22/2010 at 8:00 PM

        OK, quick essay on discovery 101:

        The scope of discovery: a party may seek discovery regarding any matter (not privileged) that is either relevant or likely to lead to the discovery of admissible evidence.

        To use as an example the question about how Robert arrived: If he arrived in a cab, then the plaintiff could talk to the cab driver about whether he saw anyone or anything when he dropped Robert off. What if he were able to testify that when he dropped Robert off, he saw four men through the window? That testimony would be admissible, thus asking how Robert arrived is, arguably, within the scope of discovery.

        The scope of discovery is very broad. A court is not likely to sustain a relevance objection regarding any of the events at the Swann house on the night Robert died, in my opinion.

        A party may not properly object to discovery on the basis that the discovery sought is available through other means. That the police may have previously obtained certain evidence now sought by the Plaintiff has no bearing on the Plaintiff’s right to ask for the evidence directly from the Defendants.

        • CDinDC (Boycott BP)
          09/22/2010 at 8:34 PM

          Soo, pretty much, the sky’s the limit as long as they don’t wander tooooo far afield.

          • Bruce
            09/22/2010 at 11:33 PM

            Hi CDinDC:

            I like your “the sky’s the limit..” description. That’s pretty much the test…”don’t wander tooooo far afield.”

            You can ask for things in “discovery” that you can’t bring out at trial.

            The test for a trial on this issue is “Is it relevant to the issues in the case?”

            The test in discovery is “Is it relevant OR COULD IT LEAD TO RELEVANT EVIDENCE as to the issues in the case?”

            Sorry for yelling above.

            There are limits, and there are times when I object on relevancy grounds in answers to interrogatories or in depositions.

            Sometimes I will instruct my client to not answer a question if it is both not relevant and goes clearly for information the opposing counsel and party have no right to know.

            For instance, this has never happened in my cases, but if in a case that does not involve any gay issues, if a plaintiff’s attorney was to ask my client at a deposition if he or she is “gay,” I would wake out of my slumber and object and tell the client to not answer the question.

            I would also advise opposing counsel that if he or she continues on that line of questioning or further asks such ridiculous and irrelevant questions, my client and I will walk out of the deposition, and he can go to court and explain his or her behavior to the court (if he or she attempts to compel my client to come back to finish the dep.).

            On another topic, Dylan clearly states in answer to his interrogatory #21 that he has no insurance.

            Rich, your assumptions as to this were much better than mine.

            Looks like Joe did not add Dylan as an additional insured on his home owner’s policy through the endorsement I mentioned in an earlier post.

            Such an endorsement would probably cost around $100, I would imagine (speculating). Now, “Lil Dyl” and his family are having to pay hundreds of thousands for his defense.

            Nice going, Joe.

            • Bill Orange
              09/23/2010 at 12:19 AM

              “Looks like Joe did not add Dylan as an additional insured on his home owner’s policy through the endorsement I mentioned in an earlier post.”

              Does housing law come into play here? I have no idea what the laws are in DC, but I would imagine that there are laws on the books about renting out single rooms in your house. And in any case, I’m not sure if we even know if Dylan paid a dime in rent. In order for him to be added to the insurance policy, the insurance company would likely want to know who he was, which probably would’ve been more trouble to Joe than it was worth.

              • Rich
                09/23/2010 at 12:30 AM

                There was no lease, so, I do not think it would apply.

                Insurance poicies usually do not cover three ways! 🙂

                It’s old school.

              • 09/23/2010 at 12:33 AM

                Swann St. sort of qualifies as a group house, with 5 unrelated persons living in a home. (Excluding the two spouses situation.) Except the basement could be an official accessory apartment, from the looks of Sarah’s lair, but it would have to meet codes about egressing each room in case of fire, etc.. I have an accessory apartment in my house, and my leases always require that my tenant purchase insurance for their personal property (renter’s insurance). About $100. I do this mostly to impress on the renter, from the time of signing the lease, where my responsibility begins and ends as the landlady. If I did not include that clause, no one would buy the insurance, although I’m very careful in selecting responsible tenants. That’s why I felt that Dylan didn’t have insurance as a tenant. Do we know if he paid rent there? I never heard that mentioned, but that would have a bearing on his legal status within the house (I think).

        • Rich
          09/22/2010 at 9:16 PM

          Gee Cat:

          You may be picking up on where Chi Law left off?

          Train these non lawyers, woman…

          • Cat from Cleveland
            09/22/2010 at 9:27 PM

            I could not fill ChiLaw’s shoes!

            • Rich
              09/22/2010 at 9:29 PM

              You might have to. 🙁

            • denton
              09/22/2010 at 9:40 PM

              Yeah…it is not an easy task, BUT without you, Cat from Cleveland, WMRW is lawless!

              • susan
                09/22/2010 at 10:43 PM

                We have Bea and Bruce AND Cat and KiKi and whoever else is an atty and wants to jump in. And no one can really fill anyone’s shoes in my opinion because we’re not just getting legal advise we’re getting personalities, opinions–individuals making contributions to this site.

                • denton
                  09/22/2010 at 10:59 PM

                  Let’s put it this way, without in-house counsels (as Susan mentions all the names) and their legal advices, I have no clue of what is going on in this case … and worse yet, I don’t know where I am going with it.

    • Rich
      09/22/2010 at 5:08 PM

      Our girl Gloria is BACK!

    • Craig
      09/22/2010 at 5:22 PM

      G: RE: Q#4b (means of transportation used by Robert that night) – In the criminal case stipulations (which we’ll start posting soon-ish), Robert’s arrival by taxi was an agreed upon given.

      • 09/22/2010 at 10:16 PM

        So, why did the plaintiff use up a question asking what was already known? Given their reputation, I assume the answer is strategic, not an oversight or poor preparation.

        • Bill Orange
          09/23/2010 at 12:24 AM

          Just because it was stipulated in the criminal trial doesn’t mean it’s actually true.

  8. Rich
    09/22/2010 at 10:54 PM

    NO, “Reply,” key again.

    No clue why.

    Fortunately, the, “One Word Paragraphs,” disappeared too.

    I used to hate reading them and now I was posting one and have no idea how I did it.

    Anyway, Peter Dernbach Facebook page is going to get hammered.

    Yea, he looks like a member of the Swann 3.

    That look….

    • denton
      09/22/2010 at 11:08 PM

      Yum … yum …

      • CDinDC (Boycott BP)
        09/23/2010 at 10:17 AM

        Denton. Spare us, please.

  9. boofoc
    09/22/2010 at 11:31 PM

    This question has been bugging me for days, and I’ve just got to ask it even if it’s “stupid.” I won’t be able to sleep tonight without at least asking the question; maybe I’ll wait up for the answer. I’ve been a lawyer for more years than I want to admit, but never practiced – or been involved in – insurance law. In a case such as this, who is the “client” of the lawyer representing Joe; the lawyer representing Victor; the lawyer representing Dylan?

    Is it the insured (Joe, Victor, Dylan) or the insurance company paying the fee? The insurance company’s attorneys’ purpose is to protect the company’s money; what else? But, what duty is owed to the insured? For example, if Joe’s attorney becomes convinced by something Joe says (accidentally or otherwise) that Joe is responsible for Robert’s death, that it was an intentional act on Joe’s part (or Victor’s or Dylan’s), isn’t the company’s attorney obligated to convey that information – detrimental as it is to Joe – to the insurance company because of it’s benefit to the company; the company is not obligated to defend Joe inasmuch as there is no coverage for an intentional tortious act by the insured.

    Furthermore, the insured breached his responsibility when he lied in his report to the company of the cause of the damage for which he is being sued. If this is true, it must be as difficult for the company’s attorneys as it is for us to believe the “intruder theory” of the murder and to defend on that theory. Presumably, the company (ies) is (are) defending “conditionally.” If, on the other hand, the insured is the “client,” then all of the lawyer-client privileges apply. It’s not like a criminal case where the attorney’s duty is to defend his/her client whether he or she is guilty or not. Here, if Joe is guilty, the company paying the lawyer’s fee gets screwed.

    Even though Chilaw is no longer with us to help, I’m sure there are legal minds here who have the answer at their fingertips. I’ve seen ample evidence of that!

    • Rich
      09/22/2010 at 11:37 PM

      Didn’t quite get it all, but, you raise an intersting question:

      What if the Insurance attorney’s determine one of the boys or all are guilty of the criminal act.

      Is the lawyer obligated to tell the insurance company to advance the insurance company’s ball and disregard their client.

      I think that is what you said.

      Fascinating.

    • susan
      09/22/2010 at 11:52 PM

      Boofoc,

      Not stupid questions at all. If I recall correctly (and I do!) the very questions you pose above were discussed at length on this site right after the criminal trial. Do a search and you should find something. I will do a quick search now too. But the discussion is here on this site.

    • AnnaZed
      09/25/2010 at 2:24 PM

      I asked this question before, regarding what seemed to me to be the diverging interests of the insured and the insurer (though not quite as coherently as you have posed it here) and have yet to quite understand the answers.

      Are we in fact sure that the insurance company is representing Joe and Victor at all, or is that just an assumption?

  10. Bruce
    09/23/2010 at 12:14 AM

    Boofoc:

    You give me a challenge, I will try to step up to the plate. But I will be interested in the point of view of lawyers that activly practice in DC.

    I can only give the Illinois view, which I would speculate has similarities with DC law.

    In Illinois, the law says that an attorney who is hired by an insurance company to represent one or more of its insureds, has two clients: the insured and the insurance company.

    So, the simple answer to your question is that such an attorney has two clients.

    This causes many ethical issues to come into play.

    The attorney who is assigned the case wants to keep the insurance company as a client. The more cases the insurance company gives him or her to defend, the more successful the attorney and his or her firm will be. The practice of law is also a business. The courts in Illinois clearly recognize that.

    The attorney who is hired by the insurance company in this instance has his or her ultimate duties to the insured in defending that insured, above and beyond that attorney’s duties to the insurance company.

    In the civil context, the insured’s ultimate interest is the same as the insurance company’s. Win the case so that no one has to pay anything.

    But in a situation like the Swann 3, we all have good reason to assume that the insurance company for Joe and Victor have raised “reservations of rights,” listing reasons it doesn’t think it will ultimately have to pay money to settle or pay a judgment, but agreeing to defend the insureds, Joe and Victor, in the civil case.

    Under Illinois, these reservations of rights would create a “conflict of interest” for the attorney. The ultimate question determining whether there is a conflict of interest in Illinois is the following: Could the attorney hired by the insurance company do anything, say anything, or not say anything or not do anything, in the defense of the case for the insured that could assist the insurance company with its reservations of rights, to the detriment of the insured who, of course, wants that insurance to apply.

    Please note that the question isn’t “Would the attorney?”, the question is “Could the attorney?”

    If the answer to that question is “Yes” then there is a conflict of interest for the attorney and his or her firm.

    If I’m sent a case to defend for an insurance company’s insured, I have to ask myself the question above of “Could I?” In other words, is it possible?

    If the answer is “Yes,” I then have a conflict of interest and an ethical duty to write the insured, explain the conflict, and tell the insured that he or she has the right to hire the attorney of his or her choice to defend the case, the “reasonable fees” of his or her choice of counsel to be paid by the insurance company.

    Thus, this takes away “control” of the defense by the insurance company and puts it in the hands of the insured’s chosen counsel and the insured.

    This attorney chosen by the insured will still have to report to the insurance company of the status of matters, and provide the insurance company with normal documentation, etc.

    But what, as you enquire, happens if an attorney hired by the insurance company learns through his or her defense that the insured is not telling the truth, and did the fact upon which the case is based.

    And let’s assume that it is an attorney hired by the insurance company to defend the insured and there are no “reservations of rights.” Under insurance contracts, the insurance company almost always has the right to hire and “control” the defense (excpet in certain situations, including when they have “reservations of rights.”

    It’s the same issue for the attorney hired by the insurance company and an attorney hired by the defendant him or herself.

    First, as the attorney, you have to ask yourself, is what I believe now about the client a fact, or just an opinion, speculation, assumption or guess.

    If it is a “fact,” like the client tells you “I did it!”, then the result is fairly easy. You have to tell your client, well, now that I know this and you have represented it as fact, you have a choice:

    (1) Continue with me and we will admit the allegations which we know are to be true, and we will simply fight the case on the damages; or

    (2) I will withdraw as your counsel if you will now not allow me to admit to the allegations and simply fight the damages. I cannot perpetrate a fraud on the court. My law license means everything to me, and I will not be hauled in front of a legal ethics board where it may be in jeaprody for perpetrating a fraud on the court.

    Now, if you don’t know this “information” about your client as a “fact,” for instance: you “think” Joe did it, but he has always maintained his innocence, you also have choices as an attorney:

    (1) Do what you have been trained to do, and fight and advocate as hard as you can for your client; or

    (2) If you don’t think you can fight and advocate as hard as you can for your client, you should talk with your client and then, if you still feel you cannot best represent him or her, withdraw from representing that client.

    Hope that helps? Other legal beagles?

    • Rich
      09/23/2010 at 12:20 AM

      Way too much to to process. 🙂

      • Bruce
        09/23/2010 at 12:25 AM

        Rich:

        Here’s my respectufl suggestion. Don’t read it, and go to bed.

        🙂

        • Rich
          09/23/2010 at 9:49 AM

          I did.

          Thanks.

    • Bea
      09/23/2010 at 3:20 AM

      Bruce, I think your explanation is generally sound but I do note in your “two choices” if the attorney “knows” the client “did it” that it’s a bit too simplified and may miss the big point (and it’s late and I think you may have rushed through).

      If the client tells the attorney “I did it” then your two choices are that the attorney withdraws to prevent a fraud on the court OR the client admits liability and only fights damages. While I agree that the attorney CANNOT perpetrate a fraud on the court (such as letting the client take the stand knowing he’s going to lie) that is not to say the client will simply roll over. One still makes the plaintiff prove its case and meets its burden – ethically the lawyer is obligated to pursue a vigorous defense (without perpetrating an ACTUAL fraud).

      Easy example: if the plaintiff doesn’t meet its burden during its case in chief, the defense will/should move for judgment.

      In this case, purely as an example, let’s assume Joe tells his counsel that he intentionally stabbed Robert Wone to death. Joe’s attorney would still vigorously cross examine all plaintiff’s witnesses to discredit them. Joe’s attorney would put on its own expert witnesses to discredit the theories put forth by plaintiff’s experts.

      Do you genuinely believe the attorney must get Joe to admit liability and fight only as to damages? Perhaps it’s me who should admit sleep deprivation and go to sleep.

      • denton
        09/23/2010 at 8:21 AM

        Dear Bea and Bruce,

        And while Rich is resting his brain (sleeping) …

        I just want you two know that – as little as I know about the law (any law), I totally enjoy reading your posts. Your writing “style” makes it easy for a layperson like me to follow the “sequences” of the case and what is “under” it.

        Happy reader.

      • Kate
        09/23/2010 at 11:12 AM

        Great work Bea and Bruce!

        Many thanks for the excellent insights.

      • Bea
        09/23/2010 at 9:02 PM

        Bruce, I hope you reappear and respond. Not like you to disappear. What, you have a life?

        • susan
          09/23/2010 at 9:29 PM

          Bea, let me pose a hypothetical to see if I understand what you are saying:

          A man murders someone and confesses this to the atty. He also tells the atty where the body is buried and provides all manner of detail that only the murderer could know. The prosecutors charge this fellow using circumstantial evidence. Are you saying that under our legal system, the atty of the charged man has no obligation to the state or society to disclose any of this information and should proceed to poke holes in the prosecutor’s arguments? If so, is that really ethically pursuing a defense of murderer? Thanks.

          • Cat from Cleveland
            09/23/2010 at 9:52 PM

            Susan,

            Not only does the attorney not have an obligation to reveal what the murderer told him, but he is absolutely prohibited from revealing it. If the lawyer reveals it, then 1) the lawyer will likely be disciplined, and 2) the lawyer’s testimony will be inadmissible.

            The attorney client privilege is a bedrock of our system. It would be impossible for a lawyer to represent a client effectively without it, as no client would tell the lawyer the whole truth.

            There are complicated ethical rules dictating when a lawyer may, or is required to, disclose what a client told him. For the most part, the rules boil down to this – the lawyer cannot allow a fraud on the court (or anyone else), and cannot sit back while the client commits a future or ongoing crime, but a lawyer cannot reveal priveileged information regarding a crime (or anythng else) that has already occurred. The lawyer cannot present perjured testimony or false evidence, and cannot make false statements, but the lawyer can argue that the prosecutor has failed to prove beyond a reasonable doubt that his client committed the crime.

            There are volumes of books written about the benefits of our system. I believe in it with all of my heart and soul. And I understand that this sounds insane, given your hypothetical.

            • susan
              09/23/2010 at 10:50 PM

              Thanks for your reply, Cat. But if a crime has already been committed and the murderer-client obstructs justice by not giving the truth and commits conspiracy–by, let’s say, committing the crime with someone else, and tampers with the evidence–burying the body–then isn’t that committing an “ongoing crime”? Would the atty be obligated to share the info. in such a hypothetical?

              Otherwise, in this “sacred” institution we have known murderers or rapists, etc. out on the streets and able to commit more crimes. It seems wrong that an atty is doing the “ethical” thing by not reporting criminal evidence since there’s no “ongoing” crime.

              Unfortunately, in our system of justice there’s good and bad, because it involves humans making decisions. You can have two identical cases in two different jurisdictions and crimes of murder or rape, etc. One judge gives someone the death sentence and the other sentences the person to eight years. And then some are subject to early parole. Whatever system has been created by man-government, laws, etc.–can always be improved–in my opinion.

              • Cat from Cleveland
                09/24/2010 at 7:47 AM

                There is always room for improvements! Those of us within the profession who are active in the ethics field are always looking for ways to improve the profession and the system.

                One thing that won’t change, however, is the basic premise that the defense attorney’s obligations are to the client first and foremost, not to society. It is the police and prosecutor’s job to prove guilt and it is the police and prosecutor’s job to protect the interests of the people and society. It is the defense attorney’s job to protect his client, who is presumed innocent until proven guilty in a court of law (not in the mind of his laywer). By protecting the rights of the accused, the defense attorney thereby protects the adversarial system of justice and ensures that all accused (especially the innocent ones) are protected. The whole “better to set ten guilty men free than to imprison one innocent person” thing and all. . .

                Fwiw, I work exclusively in the civil law arena. I believe in the criminal system, but I can’t stomach to work within it.

                • susan
                  09/24/2010 at 7:32 PM

                  Thanks for your reply, Cat. And thanks to Bruce and Bea for their additional discussion about what a criminal defense attys responsibilities are in cases of admission of guilt by her/his client.

        • Bruce
          09/23/2010 at 11:24 PM

          Had an all day mediation. We settled!

          • Kate
            09/23/2010 at 11:42 PM

            Congrats to you. Methinks?

            • Bruce
              09/24/2010 at 12:22 AM

              Kate:

              Yes Yes Yes. Hard fought. Thanks for the congrats.

              The parties made a total of 15 demands and offers over the day, and finally agreed to settle the entire case for a specific dollar amount at the end of an exhausting six hour mediation, without lunch.

              For those not familiar with mediation, the parties can agree to go to a private professional mediator (usually, but not always, a retired judge), who will work with the parties and try to get them to reach a settlement of a case, so the case can be dismissed in court.

              Those in attendance are the attorneys, usually the parties themselves, and the people that actually hold the “money cards,” such as insurance representatives if the defendant is insured for the loss.

              It is a fairly informal process, not like in the court room, and the mediator usually starts by having everyone in one room, he or she explains the process, goes over the major issues in the case as he or she understands them, and lets the attorneys, insurance people and parties speak if they would like.

              Then, the parties go into separate rooms, and the mediator engages in what we call “shuttle diplomacy,” going from room to room, delivering demands and offers, and talking to the participants, trying to get them to a point of settlement.

              It is all voluntary, and the parties each pay the mediator 1/2 of his or her fee for doing this. Mediators usually charge in the area of $300 an hour for their services, sometimes less and sometimes more.

              Our mediator (a retired judge, known for his success in settling cases through mediation, and usually sought out by both plaintiff’s and defendant’s attorneys due to his fairness and reputation), agreed to by all parties, was well worth his fee, and is a miracle worker in this regard, and he performed a miracle today.

              Nothing said during a mediation can be used at trial, and no numbers offered can be used for any reason, if the parties don’t settle at the mediation.

              If you don’t settle at a mediation, it is as if it never happened, in terms of the court case.

              At about 3 hours in, the parties were $600,000 apart, and I didn’t think there was a chance in hell that we would be able to settle, and my client, insurance company representative and myself really felt it was becoming a waste of time.

              The best settlement is where both sides are not happy, but the case settles. Plaintiff feels that she accepted less than she or he deserved, and the defendant and insurance company feel that too much was paid for the settlement.

              That was certainly true with this case today, but I was able to shake the hand of the plaintiff at the end, and the plaintiff’s attorney and I were able to both say we looked forward to opposing each other in the future, because both of us felt the other acted professionally in our attorney’s roles, and we could trust with certainty what the other attorney said during discovery and the case.

              The subject of mediation may be relevant to the Wone trial. Some judges might order the parties in a civil case to go to mediation to try to settle the case, outside the courthouse.

              The judge can order you to go to mediation, but can’t order you to actually settle.

              Any legal beagles aware of any possibility that the DC judge could order such a mediation in the Wone case?

              Of course, there is no requirement for such an order. The parties can voluntarily agree to go to mediation at any time, as in my case today.

              • 09/24/2010 at 12:35 AM

                Other than wanting to call an end to the case if it drags on interminably (and so far, the Wones seem patient), how would they benefit from mediation? We’ve been assuming that the family’s motive is to get at the truth about Robert’s death and accountability on the part of the wrong doer(s). It appears that money is a secondary issue, especially if the insurance companies pull out, and there is not much money to tap. And I’d imagine the Wones would want public airing of the truth. Am I wrong that mediation involves both parties being bound not to reveal the terms of the settlement? If so, that probably wouldn’t salve the souls of the Wone family, as if anything could.

                • Bruce
                  09/24/2010 at 1:28 AM

                  Hi Gloria:

                  I don’t know what all the motivations are, but if the Wone suit is designed to find the “truth,” as you put it, it is the wrong vehicle, in my opinion.

                  If anyone is suggesting to Mrs. Wone that a civil trial will determine “truth,” I don’t feel they are necessarily giving good advise.

                  If they are suggesting that a civil case, with its liberal discovery allowances, will uncover more to answer the question posed in the name of this blog, than yes, there is that possibility, and I think that is a noble cause.

                  But we certainly haven’t seen that so far. Of course, we have to await the rulings, and the reactions to those rulings, of the good judge in this case.

                  If the defendants lose on their 5th Amendment applications, they may just go for, or end up with, a default judgment and the trial will simply be as to damages.

                  That is not really an advancement of the truth or real “justice” applied, in my view.

                  I am becoming more and more convinced that the defendants have placed avoidance of further criminal prosecution as the centerpiece of their approach to the civil case.

                  If that is the case, the civil suit may not gain much further evidence against the Swann 3.

                  But, certainly these e-mails, etc., may give us all, including Mrs. Wone, more information.

                  A settlement would not advance the interests that you suggest are the motivations of the civil suit. And I agree that the motivations you suggest are noble.

                  But a settlement may fund a memorial, scholarships and fund promotions of those things and ideals that Robert Wone felt deeply about.

                  There is at least a possiblity that a jury will not find the defendants responsible for the murder.

                  That downside does not advance any of the noble causes that probably spark the civil suit.

                  I’m sorry, I’m a cynic when it comes to civil trials. Usually, but not always, they end in something not envisioned by the parties at the beginning, and many times both sides are disappointed, or don’t feel the process and its emotional strain was “worth it.”

                  I personally wish Mrs. Wone success with her suit, and I most certainly hope we can all learn more about the murder.

                  But I have my doubts in the areas of “justice” determined or “truth”
                  uncovered at last.

                  Particularly in what we know right now, and the defendants’ possible plan of action as to the civil suit.

                  Sorry to be a real downer.

                  I’m hoping that the judge makes good rulings, and the defendants abide by those rulings.

                  My feelings on what this trial may reveal, and how they can advance the noble motiviations you suggest, are certainly subject to change.

                  • Bruce
                    09/24/2010 at 1:37 AM

                    Gloria:

                    As to your last question, settlements through mediation are not automatically confidential and secret.

                    Just as with any settlement, they are confidential and secret, only if all parties agree to that condition.

                  • 09/24/2010 at 12:44 PM

                    Thanks. I/we needed that splash of cold water in our faces. I keep thinking what would be if no attorneys had stepped forward to take this case on, pro bono. Much less the splendid array of talent and prestige on the plaintiff’s side.

                  • Bill Orange
                    09/26/2010 at 10:39 AM

                    I don’t quite agree with you here. While I don’t expect a “Perry Mason” moment to come out of this trial, I think it’s going to give us a lot of information–most of it indirect–about the guilt of the defendants. Frankly, they’ve looked even worse to me in the last week than they ever did at trial. When you’re pleading the 5th about your phone number, you’re looking pretty desperate. As a potential juror, if I’m told that I can hold a 5th amendment invocation against a defendant, and the defendant pleads the 5th when asked if he even tried to help the man that was bleeding to death in his guest bedroom, I’m going to find you guilty.

                    • denton
                      09/26/2010 at 4:49 PM

                      Count my vote on your verdict too!

      • Bruce
        09/23/2010 at 11:18 PM

        Hi Bea:

        Well, I think you are correct. A defense attorney who knows that his client “did it” in a civil case (and probably in a criminal case), can certainly do just about anything to defend his client, including cross-examinations, discrediting witnesses, etc.

        But the one thing that the defense attorney in a civil case can’t do is promote an absolutely untrue defense that the attorney knows for a fact to be untrue.

        That is a fraud upon the court, and I think virtually all Rules of Professional Conduct for attorneys disallow that.

        One of the problems in a civil suit is that the defendant’s attorney has to file an answer to the allegations in the complaint, admitting or denying each of those allegations. This is at the very beginning of the case, around the time you file your appearance for that client.

        For instance, imagine a civil complaint alleges that your client, a doctor, sexually abused the plaintiff, a patient.

        A paragraph of the complaint alleges that your client sexually abused the plaintiff. Before you filed the answer to the complaint for your client, the doctor, you properly spoke to him and he said that this allegation was an absolute lie.

        So, you “denied” that allegation in your Answer to the Complaint.

        No problems, everythings cool, you think that your doctor client looks and acts kinda creepy, just like someone who might sexually abuse a patient. But he denied it. Emphatically. No problem. You can do what you are trained to do and fight and advocate for him in this case. He also pays his bills timely and is otherwise a “good client,” having the firm handle a number of legal issues for his doctor practice and some corporations he runs.

        Then, one day during the case, your doctor client comes to your office and says: “Bea, I can’t stand it any more. The guilt is killing me. I did sexually abuse the plaintiff!”

        Your client just pimped you into a tremendous clear ethical dilemma.

        You can’t “unhear” what your client said.

        You have to explain to the doctor client that you cannot perpetuate a fraud upon the court. If the client wants you to continue as his or her attorney, you must amend the answer and now admit the allegation of the sexual abuse, you previously denied, because you now know that this previous answer to the complaint that you drafted and filed with the court and served on the plaintiff’s counsel was, in fact, false.

        If the client does not accept this, you must withdraw from the case as his or her attorney. The client can hire another attorney, and if he or she is smart, will not tell the new attorney what he told you. But you can’t counsel your doctor client to lie to any new attorney, because that would also be perpetuating a fraud. You simply can’t continue to be part of a fraud, now that you know the truth.

        If a criminal attorney knows as a fact that his client “did it,” that attorney can suggest to the client other defenses to the case rather than a straight denial of the action, such as “mentally ill,” “self defense,” etc.

        Neither a civil nor a criminal defense attorney can permit his or her client to go up on the stand and make statements under oath that the attorney knows as a fact are untrue.

        This almost happened to an attorney in my firm. It was a civil federal court matter she was defending. The client (not a doctor!) told her before a hearing that if called to the stand, he would lie. She told him: “You can’t do that. It is perjury, and illegal, and you are putting me in an impossible ethical situation.” He said: “I don’t care. I am telling you that I am going to lie.”

        What a dilemma! What to do?

        She immediately contacted the attorney at our firm who is in charge of “ethical” and conflict issues.

        It was discussed that she still had duties to her client, despite him telling her this, but she could not continue representing him in the case if he was going to lie under oath or perpetuate an untrue defense.

        It was ultimately decided that she should go to another federal judge in the same building, but not the one actually hearing the case. If she went to the judge hearing the case, it would ruin her client in that judge’s eyes. She couldn’t do that to her client!

        Also, under ethical rules, you are not allowed to have a private conference with the judge hearing the case without inviting the counsel for the other side (these are called prohibited “ex parte” communiciations).

        She explained exactly what the client had said, and what she had said to him, to this other federal judge in chambers (his office, not his courtroom).

        It all worked out, and she was allowed to immediately withdraw as an attorney from the case, and the firm immediately withdrew from all other cases and matters in which we represented the client, and we lost money because he refused to pay any outstanding bills.

        We “fired” the client from any matters with the firm.

        But, she did not have to stand in a court room and hear her own client say something under oath on the stand that was factually and unequivically untrue.

        She says that there is not a moment now when she walks into any courtroom that this whole incident does not come back to her.

        She just can’t “unremember” it.

        Sometimes, it’s not easy being an attorney.

        • Bea
          09/24/2010 at 3:02 PM

          I’d like Cat in Cleveland’s opinion on whether one has to go back to amend the answer. Frankly, so often the individual allegations are answered with such perfunctory prefaces that I don’t see how one would be forced to go back and restate that the client “admits” the allegation but I’ll leave that to Cat.

          Which leads us back to why attorneys in criminal cases often tell their clients that they don’t want to know whether they’re guilty or not. In civil cases, because one is rarely in my field dealing with ‘truth’ it just doesn’t come up much (trademark infringement/unfair competition).

          • Bruce
            09/24/2010 at 3:58 PM

            Hi Bea:

            I would like Cat’s take on the amended answer issue also in my post. If I say anything wrong in a post, please please please take aim and fire!

            For clarity, I did not mean in my post to imply or suggest that the attorney for the lying so and so client MUST, in any event, amend the answer to the complaint.

            In my opinion, that must be done only if the attorney does not withdraw as attorney for the client.

            In other words, if the attorney witndraws his or her appearance, he or she does not have to “correct the record” in the filed answer…….when filed it was reasonably determined to be true by the attorney.

            Let the new attorney deal with that headache if he or she is given a similar confession by the lying cheating so and so client.

            That attorney has two choices the moment he or she hears from the client that the answer, previously filed, was untrue when filed and is untrue now:

            (1) simply withdraw as counsel for the defendant in the case; and let the lying cheating so and so client get a new attorney; or

            (2) If you are going to continue representing the client, you have to explain why, and correct that untrue answer by amendment, and I believe that this would have to be a condition of the attorney continuing on as attorney for the client.

            If the client would not agree to that condition, then you simply withdraw and do nothing else.

            Hopefully, the client will be a bit more introspect in what he or she says to his or her next attorney!

            • Bea
              09/24/2010 at 4:49 PM

              Interrogatories are usually more general in scope – if asked “what did you do the night Tom Smith was killed in your home?” and you answer truthfully about MANY of the things and did not state “and that is all I did” I don’t know that you would be required to change the answer to THAT question.

              I’d have to look at the current Answer to this complaint to see if the legalese took care of the need to go back.

              • Clio
                09/25/2010 at 7:07 PM

                Yes, Bea, as Bill Clinton said once, it all depends upon the definition of is.

                How Jesuitical that the Law has become: one then might begin to sympathize with the Synod of Dort’s view of the Pope’s rhetorical Marines.

            • Cat from Cleveland
              09/27/2010 at 10:37 PM

              Trying to put together mble, but I seem to be losing the battle. . .

              On the issue of the amended answer:
              By way of background – in law school we learned two different sets of ethical rules – the Model Code and the Model Rules. The Code is the older version and is, generally, more aspirational and more vague. The Rules are more specific. States are now tending to abandon the Code in favor of the Rules (Ohio finally joined the trend a few years ago). There are substantial differences between them.

              Where am I going with this? Both the Code and the Rules require an attorney to take affirmative steps to prevent the client from committing a fraud on the court. If the complaint is well written with very specific factual allegations (Bea is right. Few complaints would fit this criteria), and the defendants file an answer specifically denying material facts, and the attorney later learns that the answer contained materially false factual assertions, then the lawyer is obligated to correct the record.

              The lawyer does not need to go to the court and say his client lied. The lawyer need only file a motion for leave to file an amended answer correcting a factual inaccuracy. Questions will come up, and the client will have to offer some reasonablee bais for the change in position, but it is all necessary to prevent the lawyer from being accused of participaing on a fraud on the Court.

              • denton
                09/27/2010 at 10:55 PM

                Cat – On Mr. Wone’s case, we’ve seen changing of attorney already, would we see some Motion for Leave coming anytime soon?

                • Bill 2
                  09/27/2010 at 11:29 PM

                  Denton, have you ever heard the term “Chill” or “Take a chill pill” or “Time Out”? Now I realize I asked you a question, but try not to answer my question. It would be the dawn of a new day if you could show some restraint for just a few hours. There’s another saying you may not have heard, “Silence is golden.” Please let us have some golden moments.

                  • denton
                    09/28/2010 at 7:33 AM

                    Bill 2 – I do not appreciate your butt-in this way to my post. Please same your words to others who need you more than I do.

                    Have a little respect!

              • susan
                09/28/2010 at 12:09 AM

                Cat,

                Just read about the Justice atty (Marsh) who committed suicide re the Stevens’ case. Is being “scrutinized” as the Post describes it, what would happen in a case where fraud is suspected? Thanks.

              • Bruce
                09/28/2010 at 12:41 AM

                Hi Cat, and welcome back.

                In your opinion, can an attorney withdraw his appearance once he or she hears the client admit (I did it!)to something that was previously denied by the attorney in the answer based upon the client at that time denying the allegation….

                and do nothing further? Meaning, not have to do anything about that answer?

                That was my conclusion in my posts, but much like Meryl Streep, “I have doubts.”

                • Bea
                  09/28/2010 at 3:28 AM

                  Bruce, maybe complaints and answers are different where I practice, but so much is in the details that it’s tough to make much sense of the hypothetical. I think if you look at the complaint and the answers in this case, maybe that would be a better place to start the question.

      • AnnaZed
        09/25/2010 at 2:29 PM

        Bravo Bruce and Bea, though you could still color me stymied as to why this is all permitted or even considered legal, let alone standard practice. I just can’t quite comprehend that.

        • Bruce
          09/25/2010 at 4:25 PM

          Hi AnnaZed:

          Your inquiries are very understandable.

          The best I can explain it is that the duty of an attorney to his or her client almost takes on a “religious” connotation among those practicing law.

          It is considered “sacred.” Some refer to it as a “sacred bond.” Among those in the legal field, it is the highest standard, and no other thing in being an attorney is more important than up-holding that attorney/client relationship, and protecting the interests of a client.

          If an attorney was not to do that, he or she would be scorned by the legal community. As if they had broken a very serious criminal law.

          It takes on a kind of “nobility” by some attorneys, and rightly so. Critics might abuse the advocacy system or question its morality or effectiveness, and criticize it because it is not fashioned to better the public good.

          But the attorney must suffer the scorn of those critics, the person on the street, the public and anyone, to uphold this relationship with a client.

          The attorney/client relationship is based upon trust. So shoot me full of arrows for doing what I must do to protect my client, because I will gladly so suffer.

          I think we see a bit of this in Cat’s previous post (to which I fully agree and commend Cat for its wording) where he upholds this relationship.

          The advocacy system does certainly have its faults. But the one question that can possibly make those that fault it understand it a bit better is as follows:

          If you were in any trouble with the law or need an attorney in a civil matter, don’t you want someone whose sole aim is to protect your interests against the other side, the public and the universe? Someone who is dedicating to promoting your interests only?

          If you were in that situation, I think most people would say “Yes.”

          Of course, attorneys have ethical considerations and Rules of Professional Conduct that they must follow or possibly lose their law license or worse.

          So there are some limits on advocacy!

          • AnnaZed
            09/25/2010 at 4:46 PM

            Thanks Bruce, I understand all that and it is because I understand all that that I question what seems to be a persisting scenario of necessarily divided loyalty in these kinds of proceedings.

            Thank you so very much for your time and extrapolation.

            • Bruce
              09/25/2010 at 10:51 PM

              The legal beagles on here would by the ones most likely to “respect” the attorneys representing the Swann 3, as well as the attorneys for Mrs. Wone.

              We don’t expect others to also respect them. It’s not our fault. Blame it on law school and To Kill a Mockingbird.

              Atticus Finch represented a very hated defendant in a criminal trial in the book and movie. Many people could not understand why he, a respected and popular attorney, a man of intellect, would do it.
              But Atticus did not budge, he walked proudly down the street of his town.

              Atticus is certainly a “noble” character. It is never absolutely certain that Atticus believes in the innocence of his client, until he is actually in trial.

              And that just adds to the richness of the book and movie, for me.

              Atticus was smart and lucky; his client was innocent.

              While the book would have never been written, and the movie would have probably flopped with the public, if Atticus’s client was truly guilty of the rape.

              But it wouldn’t change my positive feelings for Atticus Finch as a very noble man, a person who shows the absolute best in a preson, as well as an attorney.

              Atticus knew that it was important that those most in need of legal services, and the subject of hate and violence, need the best legal representation.

              Those that take on an unpopular case or client, and are certain to receive the scorn of many, are those most likely to be the most respected in the legal community.

              It is the hard case, the controversial case, the client who is hated by the public, that can test an attorney to the limit.

              The attorneys for Mrs. Wone can be proud in their pro bono representation, but their job is easier to do day to day, at least on an some levels, because in the eyes of the public, and their families and friends, and some judges even, they are on the side of truth, justice and the American Way.

              But it is the most hated, in my opinion, that most need the protections of full and vital representation by an attorney willing to “take the heat.”

              So, please don’t take offense if I or any of the legal beagles on here are not too critical of the Swann 3’s attorneys if they do things that may not further the search for truth and justice, but are making reasoned decisions that are in the best interests of their clients.

              • susan
                09/26/2010 at 12:10 AM

                Gosh, Bruce, I wouldn’t compare the story in To Kill a Mockingbird and A. Finch’s role to defense attys in general and “hated” clients. The focus of the story is primarily ugly racism and standing up to that. The black people in the courtroom are segregated. AF is admired for standing up to that hate and bias.

                No offense but to compare AFd to attys representing the “Swann 3”–just ain’t cutting it. Those are hired men doing their billable hour thing. That wasn’t the AF character. He was court-appointed.

                • AnnaZed
                  09/26/2010 at 1:33 AM

                  Well, in Joe’s mind the two stories are probably virtually indistinguishable; he is after all the beleaguered martyr of this action.

                • Bea
                  09/26/2010 at 1:57 AM

                  Agree. I think the Swann 3’s counsel did it for the money. And the civil attorneys are being paid by insurance (for most part). I don’t see anyone signing on here to ‘do the right thing.’

                  • Bruce
                    09/26/2010 at 6:35 PM

                    Hi Susan & Bea:

                    Susan, we see the themes in To Kill A Mockingbird differently.

                    Not unusual with great multi-theme literature.

                    To me, that peole see different themes, this adds to the richness of the novel.

                    Most likely because I am an attorney, I see the novel more as a noble attorney defending a much maligned defendant, with the racial issues being an important and necessary issue leading from that.

                    Others, based upon their background or influences, would see the themes differently.

                    I feel that your interpretationof themes of the book, as expressed in your post, is limiting.

                    But that doesn’t mean yours is wrong, or that mine are right.

                    Both Susan & Bea: I have no knowledge or information to come to a reasonable conclusion as to the motives of the defense attorneys for the Swann 3.

                    Money may very well be the ultimate and overwhelming motive, and you may be 100% correct.

                    But I don’t have any facts, knowledge or information to come to that conclusion.

                    Do you?

                    As I tried to indicate in my post, it is very understandablethat most people would dislike and disrespect the lawyers for the Swann 3, as they are associated so closely with the much maligned 3.

                    Mostly, I was trying to communicate that lawyers, including some (but certainly not all) on this blog, may view them in a different light, from their perspectives.

                    Your assumptions in this regard are not unreasonable, and I hope that mine are not unreasonable either.

                    • susan
                      09/26/2010 at 8:02 PM

                      Bruce,

                      In your posts you used the terms “sacred”, “nobility” and “respect” in characterizing how defense attys may see themselves. No doubt many have that narcissistic sense of grandeur. You used “respect” for the “Swann 3” attys.
                      I think by these characterizations you’ve proven exactly why there are many derogatory atty “jokes” out there. In reality, the “bond” btw atty and client is not the missing 11th Commandment. These attys, like yourself I’m sure, are in the billable hour realm. The costs are usually staggering for clients. You have the $ you get better representation. That wasn’t the deal in Harper Lee’s book. The fact that you would see hired defense guns in the character of AFinch says more about your reflecting the image of yourself in the book. Of course, I wouldn’t see that. My view is limited by the fact that I’m not a defense atty for hire. Yours is exxagerated in that you are, but the book’s character, however much you want to project, is not a “hired” gun.

                    • susan
                      09/26/2010 at 8:16 PM

                      BTW,

                      Bruce, the way I see most attys, on either side of the case, is that most are in it to win. Winning affects their future careerand hire-ability.

                      I think characterizations of “respect” etc. comes down to the person, not the profession. That goes for priests, rabbis, politicians,m etc.

                      Comes down to the person.

              • Rich
                09/26/2010 at 1:01 AM

                It had its moments….

                More, WMRW tomorrow. maybe, some, “SMUT?”

                Nah. The legal kids prefer the discussing the law and all its moving parts.

                Oh, well.

                • interestedobserver
                  09/26/2010 at 9:07 PM

                  Rich: Can you shut up? Your nonsense is annoying to us folks who want to read and discuss substantive issues.

                  • Rich
                    09/26/2010 at 10:09 PM

                    Fascinating Screen Name.

                    “Interested Observer.”

                    Dear Interested Observer,

                    Maybe you need to OBSERVE with MORE Interest and less HATE!

                    Why not go to my Guest Posting,requested by the Editors, on Page 5, July 21 called, “Help Wanted.”

                    As you will see, not only do I cover, “Substantive Issues,” but dozens of folks engaged me in discusson about my findings.

                    So, it looks like the only one here annoyed is YOU.

                    Maybe, you’re ANNOYED with yourself instead.

                    Go in PEACE.

                    Just GO! 🙂

                    • 09/27/2010 at 2:12 AM

                      Rich, you know me. You and Denton are driving ME crazy. I’ve begged one of the editors to find a tunnel for you two to play kissie face or whatever you’re doing, off the main line. I know they are planning something like that. I wrote: “That innovation cannot come soon enough.” TI am not hate filled, just really, really, REALLY annoyed. And yes, dear, at you (two), not myself. I know you to be much more mature than you’re presenting yourself recently, so please give it a rest or ask the editors to share each others’ identities and go at it directly without the rest of us. Thank you. Respectfully, Gloria

                    • AnnaZed
                      09/27/2010 at 2:52 AM

                      What the hell is going on around here?

                      While it is true that I did participate in the protracted avatar conversation that wasted space and time on the blog and for that I apologize, this is just getting absurd. I second Gloria here.

                    • denton
                      09/27/2010 at 9:26 AM

                      AnnaZed – I don’t have problems not whatsoever at all with your blogs (I’ve never had any reasons to). To be able to take our minds of subjects every now and then was a smart thing to do (we all need to go for a walk after serious debates). Keep posting.

                      P.S.: My reply key button is not working.

                    • Bruce
                      09/27/2010 at 12:44 PM

                      Susan:

                      There was no room to respond to your posts reacting to the “Atticus Finch” scenario and the attorney/client bond posts.

                      I can see I really touched a nerve, and that was not my intention in the least, and I apologize for that.

                      I merely wanted to explain why some, not all, attorneys might view the Swann 3 defense attorneys in a different light than the un-corrupted (meaning people that have not gone to law school).

                      The attorney/client bond applies to both plaintiff’s attorneys and defense attorneys. I was not trying to indicate that it just applies to defense attorneys.

                      You equate the attorney/client bond, which I described as being in many lawyer’s eyes, as “sacred,” and that an attorney can respect the attorneys for representing the defendants, with quite a bit of vitrol, by referring to it as a “narcisstic sense of grandeur,” amd the bond is not the missing “11th Commandment,” [By the way, is that the Commandment that Mel Brooks accidently dropped and broke, playing God/Moses in “The History of the World, Part I”, having first said that there are 11 Commandments, before the breakage, but then saying there are 10?].

                      You also state in your posts that what I tried to explain in my posts is just fodder for more “attorney jokes.”

                      I respect your opinions in this regard, and suspect that you may have had some experiences in the past that drive your posts.

                      I certainly wouldn’t want to foster any further “attorney jokes,” as I internally bleed just a little every time I hear one.

                      You state in your posts that my interpretation of Atticus Finch somehow portrays him as simply a money grubbing “hired gun.” You have very much mis-interpreted my feelings in that regard, of a novel I very much admire.

                      But you are certainly entitled to your opinions in that regard.

                      There is no inconsistency with an attorney wanting to “win” a case and up-holding the attorney/client bond and duties. They are entirely consistent.

                      You feel that attorneys want to make money and “win.” No doubt, many do. But I tend to think of people as a little more multi-dimentional, and I don’t like to place generalizations on an entire group.

                      Hey, I bet there are plenty of doctors that could care less about the Hippocratic Oath, could care less about helping anyone, and just want to make lots of money. But I would not color the whole profession in that way.

                      You end by saying that “respect comes down to the person.” No doubt. Don’t think I disagree with that at all.

                      Neither of us know, at least I don’t, what the defense counsel are like as persons. Excuse me if I tend to respect those that take on the difficult case, where they will be subject to ridicule and scorn. I also very much respect the attorneys for Mrs. Wone.

                      It was not my intent to be controversial, provocative or sensational in my posts on this topic at all.

                      I’m sorry I touched a nerve, and I hope that your posts don’t suggest that you hold it against me, or anyone, for simply being attorneys, when you imply that attorneys are all about “winning” and money, and not much else.

                      I also apologize if my references to Atticus Finch offended you in any way. He’s a multi-dimentional hero to me, and inspired me in some ways to go to law school.

                    • KiKi
                      09/27/2010 at 1:57 PM

                      I have very strong views about A. Finch (I named my first daughter Harper after Harper Lee). I go to work everyday for very little money and defend people who some would call the worst of the worst because of what was inspired in me after reading TKAMB. I am not saying that I view myself as A. Finch, in fact that is far from it, but I do hope that I model myself after the ideal set up by Harper Lee in that book. I agree with Bruce in the sense that everyone can get something different from that book and specifically that character. I would not however describe any of the attys in this case as A. Finch, but that is because we really don’t know what their motivations are.

                      Attorneys like everyone else need to get paid, but there are some motivated by money, some motivated by winning, and 100 other motivations that could explain any attorneys decision to take one case over another. As Joe Biden says (over and over again), you can judge a man’s actions but never judge his motivation.

                      But susan I do have to disagree with your one point. To me the attorney client privilege is not the 11th commandment; it is the only commandment. I have taken an oath to protect that bond and the constitution that allows that bond to exist. To me this is one of the most sacred relationships in our governmental system. Without it I think that the entire constitution fails.

                      I am sure Cat (in her role of dealing with ethics) has had to deal with lawyers like me who put that “commandment” above anything else. I can understand, susan why you think that it is an excuse or a rule to hide behind, but to me it is something much greater, I have in fact been held in contempt and spent the afternoon in a jail cell for refusing to give up an attorney client communication.

                    • Bruce
                      09/27/2010 at 2:33 PM

                      Hi Kiki:

                      A very personal and profound post. Thank you.

                      I do hope that neither you nor anyone on this blog thought that I was attempting in my posts to describe any attorney in the Wone case as being an “Atticus Finch.” That was not my intention.

                      I was just using Atticus as an example of the attorney/client bond and duty.

                    • denton
                      09/27/2010 at 4:05 PM

                      Kiki, Bruce, and Cat,

                      I assure you that, as an outsider looking in to this case and eager to learn more about the progress of it through the eyes of the counsels (you), all of you have been very rich and very generous in your thoughts and contributions to a happy reader like me.

                      … and I read, and think nothing else than what I see here.

                      Thank you.

                    • Kate
                      09/28/2010 at 8:57 AM

                      Bruce, KiKi and all who participated in the Atticus Finch discussion: Many thanks for the lively, profound and informative debate. Although it may be too late in this thread to discuss another example of a lawyer taking on a much vilified client, I was thinking of John Adams and his taking on Captain Preston and his soldiers following the Boston Massacre.

                      To me, it has always been a benchmark of true courage and dedication to the rule of law.

                      Your thoughts would be appreciated.

                      Cheers,
                      Kate

                    • Bill 2
                      09/28/2010 at 9:23 PM

                      Kate, I find the Boston Massacre to be fascinating. Last year, I watched a DVD of a 1950’s TV show “You Are There” with Walter Cronkite. It was interesting to see it played out as if TV reporters were right there. At one point when a “reporter” questioned John Adams about his differing opinions with his cousin Samuel Adams, he states (according to the script), “He’s a politician, I’m a barrister.”

                      History shows us that it was the fiery Samuel Adams, one of the most radical of the patriots, who turned the incident into a “massacre.” Feelings were so strong about the “massacre” that more than half the population of Boston marched in the funeral procession. For John Adams to take on the defense of the soldiers, it was truly a brave thing to do. He managed to safely cross a political high wire.

                    • susan
                      09/28/2010 at 9:52 PM

                      Luckily today the soldiers would have had court-appointed attys or pro bono attys (the likes of W. Kunstler, etc.) to represent.

                      Adams also called the rioting crowd “a motley rabble of saucy boys, negroes, and molattoes, Irish teagues and outlandish jack tarrs.”

                    • Clio
                      09/28/2010 at 10:30 PM

                      From John’s juicy description, that mob seemed to be absolutely fabulous. But I digress!

                    • susan
                      09/28/2010 at 10:37 PM

                      I agree with you, Clio. Sounds like they should have been having a party instead1

                    • AnnaZed
                      09/28/2010 at 11:25 PM

                      I thought he was talking about us (and became a bit disoriented time-space-continuum-wise).

                    • Kate
                      09/29/2010 at 9:42 AM

                      John Adams’ diaries/letters are full of such juicy descriptions, aren’t they? He is far and away my favorite Founding Father.

                      And yes, that mob description matches that of my best friends, although my friends are far more fashionable and practice somewhat better personal hygiene.

                    • Kate
                      09/29/2010 at 9:46 AM

                      Bill 2 – I used to watch the re-runs of “You Are There” as a wee lass. Great show! And I recall the John Adams episode.

                      Talk about taking on a tough client! Whew!

                    • Bill 2
                      09/27/2010 at 9:10 PM

                      Hi Kiki,

                      You can’t imagine how good it is to read about someone who has been so inspired by this amazing tale. Is your daughter old enough to know about Harper Lee and is she familiar with the book?

                      Many years ago in DC, I worked on a fund-raiser for the Kennedy Center and two of the participants were Phillip Alford (Jem) and Mary Badham (Scout). I had not read the book nor seen the film so I quickly read the book so I could at least know something about TKAMB when they were around – no DVD or videotape in those days. When I finally saw the film on TV, it just blew me away.
                      Since then, I’ve kept a watch out for news of Harper Lee and was glad to see that she got a Presidential Medal of Freedom several years ago. Did you know that Gregory Peck’s grandson is also named Harper, in her honor? She mostly kept out of the public eye since writing TKAMB, but she remained good friends with the Peck family.

                    • KiKi
                      09/28/2010 at 9:05 AM

                      Hi Bill 2,

                      That is a great story. What a cool gig. I knew a little about Harper lee’s post TKAMB life but I did not know about Gregory Peck’s grandson. My Harper is 6 so she does not really understand the implications of her name, but she certainly will as she gets older. She did however tell her kindergarten class last year that her mom says she is named after the greatest author ever but she thinks the book is pretty boring because there is not even one picture in it and it is just about a bunch of lawyers. (Much better than my son who told the same teacher a few years earlier “my mom helps bad people get out of jail.”)

                    • Bruce
                      09/28/2010 at 6:48 PM

                      Hey KiKi:

                      The little boy actor on “The Middle” tv show has as his real first name Atticus. Check the credits. Made me smile when I learned that!

                      Harper is a really beautiful name.

                      Uh oh, WMRW alert: wasn’t the character “Dyl” a little friend of Scout’s? And has not it been pretty much confirmed that “Dyl” signified Truman Capote, a childhood (and I believe lifelong) friend of Harper Lee.

                      But the biggest mystery, one that has caused a thunderstorm of speculation, is Harper Lee’s not writing any other novel or substantive work (its’ my understanding that she has written some reviews or small pieces).

                      But, I don’t care. Just don’t care who wrote it, who may have helped in writing it, or any other of the unproven speculations.

                      It is just a great damn book with truly haunting characters. And it should remain a great damn book for centuries.

                    • susan
                      09/28/2010 at 7:57 PM

                      KiKi:

                      I too have strong feelings about A. Finch, good feelings, which is why I posted quotes attributed to this Harper Lee character on this very blog a few months ago. I think Harper’s a lovely name and I commend you on choosing it for your daughter.

                      You wrote “I do have to disagree with your one point. To me the attorney client privilege is not the 11th commandment; it is the only commandment. I have taken an oath to protect that bond and the constitution that allows that bond to exist. To me this is one of the most sacred relationships in our governmental system. Without it I think that the entire constitution fails.”

                      That’s a fine viewpoint. Mine is too. However, just because you believe the atty/client “bond” to be “sacred” doesn’t make it de facto universally sacred. It’s sacred–to you. And that’s great. That for you it’s “the only commandment” means that’s true for you. No dispute there.

                      I was responding to Bruce’s generalizations about defense attorneys. Go back and read what I wrote. Or here, I’ll paste it here: “It comes down to the person.” It doesn’t come down to a class or a profession.

                      My belief and hope is that if you know your client is a rapist and gave you detailed evidence of a crime, you’d do what you could to prevent other people from becoming victims, if by keeping that confidence there remains a good chance your client will be a repeat offender.

                      And I’d hope that if the trouple/Swann 3 gave you evidence as to who murdered Robert Wone –I’d think the “sacred” above all man-made “sacreds” would be to save a life and redeem a life and punish a life taker–I’d imagine the sacred would apply to the murdered innocent person. Not the person with the big $ paying hourly fees. That’s my viewpoint. I hold that as “sacred.”

                      Re our Constitution there’s the Scalia-Breyer type of battle out there. It’s been amended, it’s organic and so is our legal system with it’s various jurisdictions of law and precedents and all that good stuff. Like I said to Cat, I think it could always stand improvement. That’s my viewpoint. Valid as yours.

                    • KiKi
                      09/29/2010 at 9:12 AM

                      Hi susan,

                      I agree that your viewpoint is every bit as valid as mine. But to answer your questions, if I knew my client was a rapist and i knew he was going to get off for a technicality I would do absolutely nothing, in fact it is my opinion that I cannot legally, morally, ethically do anything.

                      I believe it is the same, if not more so with the swann3. If I was their attorney and they told me a detailed account of what occurred, I would put on the best defense possible, without perpetuating a fraud on the court.

                      People may not agree, but it is not just a hypothetical in my line of work, it is something I deal with on a daily basis and I sleep very well at night (usually after a nice glass of red wine).

                    • denton
                      09/29/2010 at 11:15 AM

                      I would hire you as my (plaintiff or defendant) attorney! Good practice, KiKi.

                    • Cat from Cleveland
                      09/28/2010 at 10:57 PM

                      KiKi,
                      Your post made me wish for a way to send a private email. I work in the civil arena and typically represent the underprivileged, but on my best day my work is insignificant compared to what you do every day. The work you do is the foundation of our system. I applaud you for it!

                    • susan
                      09/28/2010 at 7:46 PM

                      Bruce,

                      You managed to flip everything I said on its head and adulltered my message.

                      Here’s what you wrote (numbers are mine):

                      1. You equate the attorney/client bond, which I described as being in many lawyer’s eyes, as “sacred,”

                      2.and that an attorney can respect the attorneys for representing the defendants, with quite a bit of vitrol, by referring to it as a “narcisstic sense of grandeur,” and the bond is not the missing “11th Commandment,”

                      3. You also state in your posts that what I tried to explain in my posts is just fodder for more “attorney jokes.”

                      4. You state in your posts that my interpretation of Atticus Finch somehow portrays him as simply a money grubbing “hired gun.” You have very much mis-interpreted my feelings in that regard, of a novel I very much admire.

                      ******

                      Please note that I never ‘equated the attorney/client bond” in glorified terms. It was you who did that.

                      Here’s what I actually wrote (see postings on 9/26. Actually read postings on 9/26):

                      1.[Bruce], in your posts you used the terms “sacred”, “nobility” and “respect” in characterizing how defense attys may see themselves.
                      2. No doubt many have that narcissistic sense of grandeur. You used “respect” for the “Swann 3″ attys.
                      3. I think by these characterizations you’ve proven exactly why there are many derogatory atty “jokes” out there. (I didn’t say your explanation was the culprit, I said it was your “characterization” (see above). I also didn’t say it was “fodder” I said it explained “Why” these jokes exist.)
                      Bruce, you couldn’t have twisted this more if you tried. I wrote: 4. “the book’s character, however much you want to project, is not a “hired” gun.

                      The thing about print and recorded text is that however much you want to twist it, it’s out there as record.

                      Good thing we’re not in court and this is more than circumstantial evidence. And good thing I wouldn’t be represented by a court appointed atty against the best defense money could buy. The scales of justice might be a little bit off then-no matter how excellent my court appointed atty might be.

                    • susan
                      09/28/2010 at 7:47 PM

                      “adulterated” (above, first line)

                    • Bruce
                      09/28/2010 at 10:06 PM

                      Hi Susan:

                      I like a good friendly back and forth as much as anyone.

                      But I have read your response above several times, and I find that we are not even debating the same issues.

                      I challenge anyone else on here to read our posts, re: attorney/client privilege and Atticus Finch, and come to a reasonable conclusion that I “twisted” your comments in any unfair way. Frankly, I’m just surprised that you would be so agressive and absurd in some of your attempted differentiations.

                      I should point out that, as you say, you never referred to the attorney/client privilege in “glorified terms.” You are absolutely correct. Heavens! I had a problem in sentence structure and did not use correct punctuation regarding that sentence in my post. I never meant to say that you glorified the attorney/client privilege. It is very obvious from everything you say in your posts on this topic that you would never never never ever ever ever ever ever do that. I apologize for that misunderstanding.

                      But your other differentiations between what you said and I said almost go to the level of being absurd.

                      For instance, the difference between “characterization” and “explanation,” in this context, is so minute as to be laughable to make a big deal about. I can only think that you didn’t mean what you said in this regard.

                      Yes, you didn’t use the word “fodder.” So what? That’s EXACTLY what you meant in your post, even by your explanation above! No other interpretation is logical.

                      You seem to be upset that I don’t use the exact same words that you do, so, in your view, I have misconstrued you or “twisted your words.” But that almost rises to the level of Sarah Palin logic.

                      We have a big beautiful English language, and no one is restricted to using the words you use, in debating or challenging you, if what the poster says means exactly the same thing you said in your post!

                      Your post started off (in the first paragraph) with the phrase “narcisstic sense of grandeur” as to the high level of respect that attorneys put to the “attorney/client” privilege. You have every right to feel that way as to how attorneys may feel. But this phrase was just the beginning of a running critique of attorneys, where you felt you had to attack them as mere hired guns, wanting to win and make money. Again, fine, that is your opinion. Many share it.

                      You mis-read my posts to interpret them as an advocacy of what attorneys think. All I can say is read them again. They were an explanation, not an attempt to say it was “right,” or to convert others to think the same thing.

                      I think I understand the “themes” of your posts in this regard. I think that you wanted to clearly state that you don’t like attorneys, and you feel that talking about nobility, sacred things and respect in the same sentence as the word attorney is essentially absurd.

                      Fine, you have your opinion on this, but please don’t say that I think that Atticus Finch is just a “hired gun.” It’s simply not true. Never thought it. Never expressed it. Frankly don’t have a clue as how you could come to that conclusion.

                      When I said above in this post that we are not really debating the same issues, what I mean is:

                      (1) My posts were designed to be non-controversial and non-provocative. In reading over them, I don’t feel that they are inviting any attacks or vitriol. PLEASE read them again.
                      This is why I am so surprised by your posts in reaction to them.

                      I was trying to simply explain why attorneys may have different views of the Swann 3 defense attorneys than non-lawyers. I don’t think that there was any absurdity in doing that, and I thought it might just touch on educational.

                      I wasn’t saying that what attorneys may think in this regard is “right” or “wrong,” “noble” or justifiably “sacred.” Please show me where I did that.

                      I did not try to convince ANYONE in my posts on this subject that they should also feel the same way attorneys do. Please show me where I did that.

                      My posts were just an explanation; I was not trying to recruit anyone to have the same viewpoint as attorneys. I stayed very far, in my opinion, from touching on that. You obviously think that I was, but please point out anywhere in my posts where I was trying to say what attorneys may think is “right,” or that we should all feel that way. In fact, I think I expressed that most people would not feel the same way as some attorneys, and that is very understandable.

                      But, Susan, you seemed to view my posts as provocative and wanted to attack them, or, in actuality, try to show that what attorneys may think in this regard is a crock of shit [Ok, ok. You did not use the words “crock of shit.”] But isn’t that what you mean?

                      Fine. You have every right to express your feelngs on here. None of my posts criticized you for taking that position.

                      And that takes me to the second thing:

                      (2) I have interpreted your posts on this issue to be an attack against me personally. Don’t laugh. I have reasons for this, as I will explain. I’m not sure why or what it is based upon. Maybe that I’m an attorney. Maybe that recently I have been posting alot, and maybe you resent that and think I am Bruce Toobigpants. Maybe a combination of things.

                      But it was you that made our friendly discussion “personal.”

                      For instance, please read again your post “susan on 09/26/2010 at 8:02 PM” In that post, you referenced that my characterization of Atticus Finch seemed to be “about your reflecting the image of yourself in the book.”

                      In that same post, you say: “These attys, like yourself I’m sure, are in the billable hour realm.”

                      Again, in that same post, you say to me: “however much you want to project,” in terms of your wrong interpretation that I feel that Atticus Finch is a mere “hired gun.” Which, by the way, I never have said, thought or written. Talk about “twisting” things.

                      How did it get personal, Susan?

                      You seem to be using these posts to (1) show perfectly clear that you don’t like attorneys, particularly defense attorneys (which is fine, I take no personal offense. Many people feel that way); and demonstrating and projecting hostility against me?

                      Again, why is that?

                    • susan
                      09/28/2010 at 10:33 PM

                      Wow, Bruce. Once again-major twisting of what I wrote. The best I could say, because this is a “back and forth” that is mostly circular, is that my 9/26 posts in response to your posts speak for themselves.

                      As to attorneys, your making categorical statements such as “you just don’t like them”–is unjust. You don’t make a good case for yourself when you throw out categorical statements and attribute them to others. In general, I can see nothing wrong with being a defense atty. They are a necessary part of our society. Just like plumbers and morticians. And everyone else. And there’s good and bad and assigned cases, billable hours and sleeping at night with maybe a dark secret about a murder or something. Now that last part–yes, I have a problem with that. It’s right there in my posts.

                      I’m honored to be the granddaughter of an attorney. Honored. Honored because of the man. It’s not the profession that makes the person. And I disagree with the characterization of a profession alone as “sacred,” privileged or any of the other terms YOU used.

                      It also leaves a bad taste to take what I would consider a sacred character of fiction and debase him as somehow representative of defense attornies and even put the character into the discourse of the Swann 3/trouple attornies. Sorry but eww. Fictional character–high bar. Billable hour law firm person– real, not fictional. Just not comparable.

                      I don’t know you Bruce. I have nothing against you personally (not knowing you) but do take offense at your taking my words and sentiments and turning them upside down in the attempt to elevate your arguments.

                      I’m done with this particular discussion. My prior posts speak for themselves in response to yours and I stand by them. I enjoy some of your posts and am glad you are on this blog. Just didn’t particularly enjoy this bit of back and forth and believing I was misrepresented in your posts.

                    • Bruce
                      09/28/2010 at 10:42 PM

                      Susan:

                      Agreed.

                      I’m done with this particular discussion also. We can’t agree. So be it. Let’s move on to, frankly, more interesting discussions, particularly about this here murder.

                      I enjoy your posts, always read them, and am glad you are on this blog, also, because you enrich it. Look forward to reading your posts in the future.

                    • susan
                      09/28/2010 at 10:45 PM

                      Thanks, Bruce. Looks like we were typing almost the same sentiment at the same time.

                    • susan
                      09/28/2010 at 10:43 PM

                      Read your post again, Bruce, and I want to emphasize that the posts had nothing to do with you personally. Only what seemed like a twisting of my words. I don’t think you are Bruce “toobigpants” as you put it and you can post all you want. I have no issue with that at all. In fact, I have nothing “personal” against anyone who has posted here. I like almost all the “voices” on here and the different viewpoints.

                      I really do mean that.

                    • Bruce
                      09/28/2010 at 11:20 PM

                      Thanks, Susan, and I should not have taken anything personally. I know you to be a fair person historically in your posts.

                    • Clio
                      09/28/2010 at 11:57 PM

                      The historical perspective is always the best bet, Bruce, but, then again, I am biased.

                    • susan
                      09/28/2010 at 8:25 PM

                      And Bruce,

                      Your references only offended me in that I think you distorted Harper Lee’s book and the character of Atticus Finch to make both in your own image. Using that character and the Swann 3 attys in the same reference–made me a bit queasy. They may be fine men, but again, billable hours, city law firm, not A. Finch.

                    • denton
                      09/27/2010 at 9:18 AM

                      Dear Gloria,

                      I am speaking now for “myself” (“by-line” by the name of “Denton”) that I “respect” your “opinion” toward Denton (I reserve my rights to withhold my real identity so my feeling will never be hurt by anyone’s ridicule or remarks regardless).

                      While we all have moments of heated argument, loosen up, serious and pro-active (all that different characters that each brought to this plate), I do step back many times to observe, listen, or just don’t engage because some issues I have no clue where I am going with it.

                      But if you pay attention to my “real interests,” I speak from the bottom of my heart that I do enjoy the “differences” that we brought ourselves into this site. I do not live to read WMRW 24/7. I don’t even know who you are . . . BUT I DO RESPECT YOU . . . and that counts!

                      This is a “mature” part of me (Denton, and it’s just a make up name). I just want to get along, if you would allow me! Cheers, D

                  • denton
                    09/26/2010 at 10:22 PM

                    interestedobserver,

                    If you find yourself interested in just observing WMRW, it is best to be restpectful to this community members – as an observer. If you want to contribute your interests, or your findings, to the case, I am certain that all of WMRW posters would love to WELCOME you to join.

                    We all listen to each other. We all have different opinions, thoughts, background, even different takes in how we contribute to this site.

                    Would you be so kind to our contributing members (I assume that none of us know who you are), as you would be so kind to yourself?

                    • Rich
                      09/26/2010 at 10:31 PM

                      Dearest Denton:

                      You got that!

                      None of us have even heard from him before.

                      He’s a NEWBIE and needs to learn how to use the site.

                      Thank you for your support.

                      I was a bit stunned.

                    • denton
                      09/26/2010 at 10:38 PM

                      Dearest Rich,

                      It’s time to SMUT!

                      Denton

              • denton
                09/26/2010 at 9:41 AM

                SNL Avatar 1D (not 3D) by Gov. Paterson.

                Bruce took bar exam since he WAS in the womb…just kidding

                …and no SMUT!
                no cyber stalking
                no boring stuff

          • Clio
            09/25/2010 at 6:57 PM

            Confessor is to sinner as lawyer is to client. But when confessor is sinner, the lines between lawyer and client become blurred.

            Bruce and AZ, I do wonder if Counselor Roswell is becoming tired of Counselor Price already; Bernie Grimm probably stopped returning Joe’s calls right after the last check cleared.

          • denton
            09/25/2010 at 8:42 PM

            Bruce and AnnaZed,

            I like the way you clearly wrote the answer to AnnaZed. (I admire myself sometimes for understanding the lawyer’s language.)

            Bruce wrote: It is considered “sacred.” … it is the highest standard, and no other thing in being an attorney is more important than up-holding that attorney/client relationship, et al.

            My question is:

            If the Motion to Compel is granted, Arent Fox would reveal all requested emails which will include the attorney/client privilege communications of Joe Price and his counselors.

            [I read again in the Motion to Compel and it listed 3 different privileges to Joe Price’s emails communication:
            – attorney/client
            – spousal, and
            – joint defense]

            Would this attorney/client privilege relationship, technically speaking, become temporarily “null” by Court Order?

            How often that the attorney/client privilege is revoked by something that is more “sacred?”

            • Bruce
              09/26/2010 at 8:00 PM

              Hi Denton:

              My best legal guess is that the judge will have to rule on all the privileges/objections raised by the Swann 3, because any one of them alone may bar disclosure of the e-mails to which they apply.

              First, I think, she needs to determine if Joe waived his right to any privileges, by Joe’s knowingly sending the e-mails in light of Arent Fox’s privacy rules as to e-mails.

              The simplest thing she could do is say that no privileges apply to the e-mails due to that, and all of them must be disclosed, subject to……

              Determining the 5th Amendment challenge as to disclosure of the e-mails.

              Then she needs, in my opinion, to go to the 3 items you raise.

              Looks like she will have an easy denial of any spousal privilege raised, as the e-mails are not “testimony” as stated in the actual statute or rule as to the privilege.

              But we can’t be 100% sure on that. I would hope that the Swann 3 attorneys have some good faith reason for raising that privilege, as is required ethically for filing such an objection.

              The judge will also have to determine if the attorney/client privilege asserted (which I find fascinating mostly because Joe is an attorney, and she will be naturally hesitant to allow disclosure of any attorney’s strategy or opinions) applies.

              That is almost as interesting to me as the 5th Amendment issues.

              And, the judge will have to decide whether the “joint defense” privilege may apply.

              Finally, as to some e-mails that Joe sent to himself, she will have to decide if the attorney work product doctrine applies.

              So, I believe the judge needs to decide first whether Joe waived all objections/privileges by using the Arent Fox e-mail system.

              If she decides in favor of Mrs. Wone on that, all other objections/privileges then may be rendered “moot,” but only as to the e-mails.

              If she accepts that argument, she need go no further on the motion to compel in front of her, limited to e-mails.

              But if she doesn’t buy that…..

              It is possible that if she finds any or all of these other defenses to the e-mail disclosures are not applicable, it is possible that they may be applicable to other evidence matters that come up later in the case.

              Right now, she is deciding the “e-mails” issue, and possibly the answers to interrogatory answers.

              It is quite possible that whatever reasoning she applies to uphold or disallow the privileges asserted as to the e-mails and answers to interrogatories would, by simple logic or by direct reference, apply to depositions, etc., but not necessarily.

              • denton
                09/26/2010 at 10:09 PM

                Bruce,

                Many thanks for your fine, crafted, descriptive, response to my question. I really appreciate it.

                I can’t wait to hear the Judge’s decision to this Motion to Compel. This is where I feel more than excited about the case.

                As a non-lawyer (but so curious about how are we going to get to the bottom of this murder), I have a burning itch to see the entire process unfolded.

                In Journalism school (I have multiple background in both legal support and in Journalism because my mind is so curious plus I love to read and write), I was taught that “every story has two sided.”

                I get to hear all sides at WMRW and it serves my curiosity very well.

                Thanks again, Bruce.

            • Cat from Cleveland
              09/28/2010 at 10:38 PM

              I do not know the law of the jurisdiction, but in Ohio, when a court overrules a claim of privilege, the party asserting the privilege is entitled to an immediate appeal (interlocutory, for the legal beagles). If DC law is the same, we may be in for a very, very long ride. If DC law allows an immediate appeal, and the court grants the motion to compel in any part, we’ll have to endure an entire appeal before we ever see the completion of discovery. Does anyone here know DC law on this point?

              • denton
                09/28/2010 at 11:05 PM

                Thanks Cat – I am already excited, meanwhile, to anticipate the Judge’s decision at this step. It will be fun to watch.

                • Bruce
                  09/28/2010 at 11:26 PM

                  Hi Cat:

                  I believe Illinois is similar to Ohio in these “interlocutory”appeals processes, but I don’t think in Illinois it is of right if privileges are involved. I believe the appellate court can still deny the appeal and allow the case to go to trial. Going to have to ask our appellate dept. about that!

                  Sure hope it doesn’t happen in this case, as we all want to get information as quickly as we can.

                  But, I am a bit of a pessimist on this. I’m afraid that if there is any opportunity to appeal, the Swann 3 may do it, simply to delay this case and the media attention.

                  But WMRW keeps marching on!

                  • denton
                    09/29/2010 at 8:38 AM

                    Not only WMRW audiences learn about out-of-state (Ohio and Illinois) legal systems, and once we get a good grib about local (DC) system which is about to unfold every minute of every new findings everyday, we will have richness and fruitful discussions as the case progress.

                    Cat and Bruce, I can tell you that (most) Asian audiences (I’d better start calling ourselves Asian, and not Chinese anymore) would like this kind of discussions more than anything as we relate to Robert and Kathy better than some others.

                    We are grateful for your contributions, Cat and Bruce.

  11. boofoc
    09/23/2010 at 1:57 AM

    Thanks, Susan. Bruce, thanks so much. Now I can sleep tonight what’s left of it.

  12. Craig
    09/23/2010 at 10:24 AM

    For the law jocks: Maybe this has been covered before, but do interrogs, like these actual docs here, ever get in front of a jury as evidence, or are they more for process?

    Also, what about the depos, especially if they’re videotaped? What from them will a jury actually see? The tapes, transcripts or nada?

    • Doug
      09/23/2010 at 10:45 AM

      @Craig: the way I understand it, from speaking with attorneys, is that Interrogatories do not necessarily end up admitted. They’re basically discovery, and one way to get the possibly entered is a motion to compel – which is exactly where we’re at. Still that’s not a guarantee, and there are limits as to who can seek their introduction. Short answer: they can end up in front of a jury – but only those questions which were not objected to, and of those objected, only those where the judge does not sustain the objection.
      -Doug, co-ed

      • Craig
        09/23/2010 at 11:26 AM

        Doug: How did you get so smart since the last time I saw you?

        Also to BillO: While we don’t know if he Ward had an actual lease, he did pay some form of rent. That was mentioned in one of the Price-Ward emails that were entered into evidence @ the trial. Those, too, will be published in the coming weeks.

        • denton
          09/23/2010 at 5:17 PM

          Doug … sure … have been around, Craig!

          • denton
            09/23/2010 at 5:20 PM

            Edited – “has” not “have.” Now, I need to start taking a “creative writing 101” again! eerrrrrr…..

    • Bea
      09/23/2010 at 2:29 PM

      Yo, Craig. Interrogatory answers and depos are often used to discredit during cross – as in “well now you say XYZ, but do you recall your interrogatory/deposition in which you said ABC” (and they haul out the transcript or cue to video depo). Rarely are they simply ‘read’ into evidence – there are specific exceptions.

      And Doug IS smart!

      • Jeana
        09/23/2010 at 5:45 PM

        The use of interrogatories, deposition transcripts, expert reports, etc., at trial can also be used to fluster a witness. A number of years ago I watched a video of a televised trial of a serial murderer in my hometown in which the prosecuter (now a federal judge) used this technique masterfully to demolish the defense psychologist – a well-known and very polished and experienced expert. There were such a stack of papers on the witness bench that she could barely be seen behind them. He moved from one document to another to another and then back again. She had transcripts in her lap, on the bench and on the floor at her feet. By the time her testimony concluded, the poor woman was a wreck!

      • Craig
        09/23/2010 at 5:58 PM

        Bea: Doug is smarter than he looks and far smarter than our best testing indicates. 🙂

        • Clio
          09/23/2010 at 11:21 PM

          And, Birdie just absolutely adored Doug’s purple umbrella: not many men, including Bernie Grimm, could get away with that exquisite accessory!

  13. Rich
    09/23/2010 at 10:50 AM

    Way Too Much to Follow.

    Does everyone realize, we still have another year of serious thinking and re-thinking to do before we see any activity.

    Are we up for the length of this analysis?

    Getting Nervous.

    • CDinDC (Boycott BP)
      09/23/2010 at 3:59 PM

      It happened with the criminal case. It can happen in the civil case, too.

  14. Rich
    09/23/2010 at 6:39 PM

    A Slow News Day for WMRW!

    14 postings in 8 hours.

    We have proven to do that much in one half hour.

    Did everyone get their life back today?

    • denton
      09/23/2010 at 7:29 PM

      Hello! Why do I get a new blog when I hit your reply button?

      • Rich
        09/23/2010 at 7:32 PM

        I’m the last to ask.

        I discover all new kinds of things on this site.

        I just learned what an, “Avatar,” was.

        Off to the theatre.

        • Kate
          09/23/2010 at 11:57 PM

          How was the show?

    • Bruce
      09/23/2010 at 11:33 PM

      Rich:

      I’m still looking for my life, so I can ask it kindly to please come back.

  15. denton
    09/23/2010 at 7:24 PM

    I think my brain is on vacation today, Rich.

  16. 09/23/2010 at 8:20 PM

    This article, from todays NYTimes, appears to be relevant to evidence discovery:

    Texas: Bloodhounds’ Evidence Ruled Insufficient
    By THE ASSOCIATED PRESS
    Published: September 22, 2010
    A man convicted of murder after bloodhounds linked him to the crime in a “scent lineup” should be set free because the evidence against him was not legally sufficient, the Texas Court of Criminal Appeals ruled Wednesday. The main evidence against the man, Richard Winfrey Sr., in the 2004 murder of Murray Burr was scent identification from bloodhounds named Quincy, James Bond and Clue. The dogs belong to a former Fort Bend sheriff’s deputy, Keith Pikett, who retired this year after being singled out by the Innocence Project of Texas, which claims he passes off junk science as legitimate investigative techniques.
    http://www.nytimes.com/2010/09/23/us/23brfs-BLOODHOUNDSE_BRF.html?_r=1&ref=todayspaper

    • Kate
      09/23/2010 at 11:32 PM

      Thanks Busy Reader – this is an excellent reminder why we should bathe every day.

      • 09/24/2010 at 10:23 PM

        I take this to indicate that when a trained dog “detects” blood, it cannot stand up alone without supporting confirmation.

        • Rich
          09/24/2010 at 10:25 PM

          Huh?

          Way to heady for me.

          • 09/24/2010 at 10:38 PM

            As reported here, of the blood detected in various areas around the house by [police] dogs; samples had to be retrived and tested positive for blood, then it would be solid evidence. Saying just that the dogs detected blood, would be “not legally sufficient.” That is how I see it.

            • Rich
              09/24/2010 at 10:42 PM

              Gotcha.

              I can go to sleep now.

              Thanks.

            • Kate
              09/28/2010 at 9:09 AM

              Busy Reader – it may be too late, but I realize that only part of my response to you got posted (darn cell phone).

              I read the article you suggested and found it fascinating.

              Without that info, my post seems quite flippant. Genuinely sorry for the miss-post,

              Cheers,
              Kate

        • denton
          09/24/2010 at 10:28 PM

          What? I was signing off but just saw this. I am going to have to read it this weekend.

  17. 09/23/2010 at 9:51 PM

    I wonder if Victor called Joe his blond Prince/King like Karla declared Paul in the ken and barbie saga. I hope-imho- Victor is reading this and can look in his soul and tell all. the law of physics and Karma are always in play–there is an HBO movie that needs to be made

    • Clio
      09/23/2010 at 11:24 PM

      No, it would be more like a made-for-Lifetime piece, if Ma’am had the leading role.

      • Kate
        09/23/2010 at 11:40 PM

        … with co-star Ms. Bertonelli, of course. Major sponsor Jennie Craig,

      • Bruce
        09/23/2010 at 11:50 PM

        I hear that Karen Valentine and Sally Struthers are both seriously and valiantly looking for a role, any role, Post Room 222 and the “9 to 5” tv show. I understand that they are reportedly fighting over the role of “Lil Dyl” in the Lifetime Movie Epic Event to be made of this matter.

        Genevieve Bujold, Isabella Rosellini, Yvette Mimieu and Charo, respectfully, have all been approached for the role, and all have reportedly turned it down, worrying what it might do to their careers.

        Hey! Just for fun, say out loud the names Genevieve Bujold, Isabella Rosellini, and Yvette Mimieux, in a row, using the accent of their countries of origin. Say it twice, and its almost like praying.

        • Kate
          09/23/2010 at 11:56 PM

          I’ve now discovered what it means to speak in tongues!

          Funny stuff Bruce.

          Oh no, my clock just struck midnight.

          Crap. I’m still not a princess … thank god my husband loves me as the shoe never fits.

          Cheers, Bruce,
          Kate

          • Clio
            09/25/2010 at 10:21 AM

            Bruce & Kate, Flo Henderson, though, should be approached to be Aunt Marcia: Betty White may be too busy these days!

            • Bruce
              09/25/2010 at 10:32 AM

              Clio:

              I’m still promoting Zombie Margaret Hamilton for that role, damn it! 🙂

  18. LegallyConfused
    09/23/2010 at 10:00 PM

    There is no real info in the answers when the trouple takes the Fifth or files objections to almost 95% of the questions.
    Gloria is correct that we have to focus on the questions being asked.
    As for their current occupations, the trouple’s prospects seem dim in this recessionary economy. JP lists attorney, but as Bea has pointed out that’s what he is; it does not necessarily mean he has a job producing income. DW is unemployed in WA state, and VZ is Self Employed so I’m assuming he is no longer employed by the Milk Producers’ Assoc. As a self employed (marketing consultant?), VZ will have to hustle to get the six figure income he supposedly was getting from the MPA. If they lose the civil case, it does not look like their will be much income to be garnished since none of the three is a salaried employee at this point.

    • susan
      09/23/2010 at 10:36 PM

      I wouldn’t be surprised if VZ was a consultant to the MP Assoc. he worked for before. The industry doesn’t have to have him on their public books as their employee (and thus endure any bad publicity) and they can still benefit from his expertise.

  19. LegallyConfused
    09/23/2010 at 10:02 PM

    Ooops. I meant “there will be much income” not “their” in the last sentence.

  20. boofoc
    09/23/2010 at 10:41 PM

    Bruce: After almost 24 hours, no “other legal beagle” has attempted to correct anything you said in response to my questions; a good sign. Furthermore, it seems like good law to me. A very complicated subject, I’d say. Thanks again.

    • denton
      09/24/2010 at 11:37 AM

      Bruce puts so many hours on this, boofoc. Now where can he “bill” you?

      Bruce and many other contributing bloggers,

      You won’t know until you are a “non-lawyer” like me to be able to say “Wow! what a richful resources we have here.” Thanks to so many of you who dare to “teach.”

      Rich, Happy Reading to you.

      • Rich
        09/24/2010 at 1:36 PM

        I skim almost all of it until we get to the, “Pay Dirt.”

        The fun stuff to read.

        You know, the all to well known, “SMUT!”

        • denton
          09/24/2010 at 7:02 PM

          SMUT! I am grinding my teeth, dear. “Do you know that SMUT is a four letter word?”

          • Rich
            09/24/2010 at 8:16 PM

            Yes.

            One of the best, “Four Letter Words,” out there.

            • denton
              09/24/2010 at 9:17 PM

              Rich – You have the best, genuine, lovely, sense of humor. You will live a very long life.

              • Rich
                09/24/2010 at 9:28 PM

                We’ll see.

                Sadly, at 30 something, I’m sure Robert Wone felt the same way.

                Tragic.

    • denton
      09/24/2010 at 6:58 PM

      Oh, I forgot to remind you, boofoc, that there may be some “overtime” on these “billable hours” to each one of Bruce’s counsels … lol… I’m just playin …

  21. Rich
    09/24/2010 at 9:54 AM

    Dear Denton:

    Reply key way too narrow, so, posting as new thread:

    Are you, “Cyber Stalking,” Peter Dernbach?

    An infatuation is one thing, but…

    Be careful.

    However, did Peter go to Taiwan to get out from under all the local hoopla?

    Does he live there now?

    • denton
      09/24/2010 at 11:47 AM

      Dear Rich,

      Thanks for your “reply” to my “reply key.”

      Am I “Cyber Stalking” Peter Dernbach?

      Naaayy! I waive my privilege to CDinDC. I think he is living in Taipei, Taiwan. Get your passport ready, dear!

      http://www.martindale.com/Peter-J-Dernbach/1280776-lawyer.htm

      • CDinDC (Boycott BP)
        09/24/2010 at 1:03 PM

        And why exactly did I get the cameo in your posting, Denton?

        • denton
          09/24/2010 at 6:44 PM

          Ah..aaa..hmmm … cameo … is that a legal term, CDinDC? lol…

          • CDinDC (Boycott BP)
            09/24/2010 at 7:21 PM

            Well, Denton, you are the one that found him “yum yum”…..I for the record don’t find men “yum yum.” So leave me out of the cyber stalking talk.

            • denton
              09/24/2010 at 7:37 PM

              No way in any meaning of that I referred to anything in a harmful or inappropriate. I apologize.

              • CDinDC (Boycott BP)
                09/24/2010 at 7:59 PM

                thank you denton. I appreaciate your apology.

                • CDinDC (Boycott BP)
                  09/24/2010 at 8:00 PM

                  my smily face disappeared. i’ll try again.

                  🙂

                  • denton
                    09/24/2010 at 8:50 PM

                    Smily face…come back again, soon.

                  • denton
                    09/24/2010 at 9:26 PM

                    Just so you know, I don’t understand why Rich has the same (not) smily face. Don’t you have a bigger, mouth wider open, smily face?

  22. Craig
    09/24/2010 at 11:04 AM

    Re: Mediation – Judge Hedge’s old scheduling order showed a March 15 – April 14, 2011 window for “ADR (Mediation/case evaluation).” I’m not sure what it means for this case, but since the trial was pushed back, those dates may shift as well.

    PS: No stalking is allowed, cyber or otherwise.

    • denton
      09/24/2010 at 6:56 PM

      Craig, Dear – Ain’t nothing is gonna happen (as long as you are keeping us in “straight” line … lol). No, I am “dead serious.”

      Mediation: Hhhmmmm,

      Hello there, legal beagles, could you please (when you have a moment from your busy lives) give us some pep talk about the Wone’s “ADR (Mediation/case evaluation)”? Thanks.

  23. Bea
    09/24/2010 at 4:52 PM

    A thought I just had – the Homeowner’s policy covers negligence. Let’s assume, hypothetically, that Joe intentionally murdered Robert and that Victor was not present. That said, assume that Victor delayed calling the police at Joe’s directing, even if Joe SAID Robert was already dead – at a minimum Victor’s actions are legally negligent. It would be interesting if the insurance company has to pay Victor’s damages but not Joe’s – and where would joint and several liability come into play?

    Obviously this is directed at the legal eggheads among us.

    • denton
      09/24/2010 at 9:14 PM

      At the moment, what is bugging me the most is that Motion to Compel and the blank (for me is the blank, for lawyers is the Fifth) answers that I am dying to beg Judge Hedge to “Please, please, please, Judge Hedge, we can’t move forward this case with all things “gray” this way.” Would Your Honor please GRANT it.

      I will cut/paste your thought above somewhere (I get lost in this jungle of information every time I try to find something) so I can check against other theories. (I don’t have a life and all I do 24/7 is reading WMRW. Am I being sarcastic enough everyone?)

      But “Who” Murdered Robert Wone?

      • Rich
        09/24/2010 at 9:25 PM

        Who Murdered Wobert Wone?

        What Concept?

        Whould elevate tha matter.

        • Rich
          09/24/2010 at 9:26 PM

          Yep.

          I talk good.

          Wobert?

          How Baba Walters of me?

          • denton
            09/24/2010 at 9:30 PM

            Hey, it’s not bedtime yet and you start Baba Wawa?

            • Rich
              09/24/2010 at 9:42 PM

              I kinda took a nap following our home run DR Dinner.

              I think it was the cocktails and hor dourves that did me in.

              Just served dessert following the nap.

              Monkey Lala.

              What on earth is that?

              Kate will tell you.

              It’s an after dinner drink served in Honduras.

              Bailey’s, Kaluha, Vodka, Half and Half, Chocolate Syrup, Coco Lopez–not served in that order.

              Licious.

              • Kate
                09/25/2010 at 9:43 AM

                I’ve had something like that before at Paya Bay… but only ONE, some four years ago.

                I only recently woke up from my coma!

    • Bruce
      09/25/2010 at 12:28 AM

      Hi Bea:

      I wanted to post something real easy and breezy. Something about autumn and stuff and happy things and people taking time off….

      But Rich is insisting upon and demanding a long complicated legal post on some obscure legal issue, thus he wants us to debate the legal issue you suggest in your post, being the effervescent “joint and several liability,” over 20 or 30 lively hot posts, and of course, we have to explain exactly what is this strange and intriguing “joint and several liability” thingy?

      So, “joint and…….”

      • Bruce
        09/25/2010 at 12:31 AM

        No, no Rich, no matter how much you plead….don’t lower yourself….

        While, Rich, I join you in your both loud and vigorous campaign against “smut” on this blog, I can’t agree with your insistence upon an exhaustingly long legal post.

        No. Not at this time. Not at this place.

        Sorry.

    • Bill Orange
      09/26/2010 at 10:55 AM

      Here’s a related question: IF (and this is all hypothetical) that’s how it went down, then Victor is guilty of both conspiracy and obstruction of justice, which he has already been acquitted of. However, the evidence at the trial made it fairly clear that Robert Wone was still alive in the ambulance and upon arrival at the ER, meaning that Victor’s crimes began while Robert Wone was still alive, AND Victor’s actions directly contributed to Robert Wone’s death (i.e., a delay in calling 911). So here’s the question: If this is how it all happened, can Victor be charged with murder under the felony murder rule, even though he’s already been acquitted of the actual felonies he committed in this scenario?

      • AnnaZed
        09/26/2010 at 12:30 PM

        What evidence makes it clear that Robert was alive in the ambulance? Tout au contraire the medical first responder found Robert’s person cold and in his opinion having expired sometime before his arrival.

        • CDinDC (Boycott BP)
          09/26/2010 at 1:51 PM

          although Robert showed no signs of respiration and had no pulse at the scene, an EKG revealed “pulseless electrical activity” (PEA) while in the ambulance and at the hospital.

          • AnnaZed
            09/26/2010 at 2:52 PM

            Oh that, I always chalked all of that up to semantic bullshit, but maybe not.

            • CDinDC (Boycott BP)
              09/26/2010 at 3:59 PM

              Yeah…me too, but the defense sure latched onto it.

              Seems to me PEA would be when relatives decide to use or not use life support.

      • KiKi
        09/27/2010 at 11:48 AM

        I think, Bill O – that what AZ points out will be the key in that scenario: The prosecution cannot prove Beyond A reasonable doubt that RW was alive on his way to the hospital. But lets assume for the purposes of your hypo that they could.

        The DC 1st degree murder statute has 3 components. The premeditated component, which is obviously not relevant in your hypo.

        DC’s “felony murder” statute is actually quite different than others I have seen. It seems to split felony murder into 2 categories:

        Purposeful killing “in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary.” This again would not seem to apply to your scenario as it does not seem that VZ was purposefully killing RW.

        The final felony murder component reads: “or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, … first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon” The problem I see with this is that the prosecution would also have to prove one of the enumerated felonies beyond a reasonable doubt.

        In some states the second degree murder statute would cover VZ’s action as many 2nd deg murder statutes allow for recklessness to be used as the state of mind. DC’s 2nd degree murder statute seems to require a state of mind above reckless but less than premeditated. (“aforethought and malice.”). (I will defer to any DC lawyers if I am misinterpreting the 2nd deg. mens rea)

        All that being said, I think in your hypo the only charge that could be sustained is Involuntary manslaughter defined as “lack of awareness or failure to perceive the risk of injury from a course of conduct under circumstances in which the actor should have been aware of the risk.” Boykins v. U.S. 702. A.2d 1242 (DC 1997).

        or in perpetrating or attempting to perpetrate a felony involving a controlled substance,

  24. Cat in Cleveland
    09/24/2010 at 6:52 PM

    Friends,
    Posting from my phone while in the passenger seat, so please forgive typos? I’m on my way to a rural retreat with family and friends for the weekend (see? I really do have a life. Lol!) It is likely that I will not have web access. If I do, I will respond to the legal ethics questions as time allows. If not, I did not want to cause speculation about my absence in our “community”. Be well!

    • denton
      09/24/2010 at 7:09 PM

      CfC, I don’t know if you can “receive” a message but “Have a Wonderful Time.” We see you when you get back. Cheers!

    • Bruce
      09/24/2010 at 8:22 PM

      Cat:

      How exactly can we be sure of the truth of your suspicious and….frankly unbelievable “story” of having a life, rural retreat, family, friends, and other such hogwash.

      Sounds to me like a fantasy.

      I bet you are really in the deep dark catacombs of your law office right now, hearing the thunder and lightning of a cold Cleveland autumn, pouring over documents, documents and more documents.

      Hey, but either way, have fun!

      🙂

      • denton
        09/24/2010 at 9:20 PM

        Bruce – Why is your smily face, not smiling!

  25. Rich
    09/25/2010 at 1:10 PM

    Okay, awake on my way to a Nats game. How I would rather be asleep. first of all, Bruce, I like SMUT! Kate, glad you remember the, “monkey.” Bruce, go ahead, knock yourself out. Bring on the legal discussion. I’ll watch the game.

  26. Rich
    09/25/2010 at 4:40 PM

    Yep! Bruce is back, 🙂

  27. Rich
    09/25/2010 at 5:31 PM

    That,s a hotsy totsy word. Now, try eschatological.

  28. Rich
    09/26/2010 at 10:46 PM

    Nah.

    We’ll leave the SMUT for a High News Day when we are re-evaluating all moving parts associated with the case.

    Knives
    Ninjas
    Anuses
    911 Calls
    Drugs
    Sex Toys

    You know, all the fun talk.

    • denton
      09/26/2010 at 10:55 PM

      Yes, we pledge:

      no SMUT!
      no cyber stalking
      no boring stuff

      Yeah, my reply key button is not working either. It’s time to retire.

      • Rich
        09/26/2010 at 11:05 PM

        Nite, Nite!:)

  29. Rich
    09/26/2010 at 10:48 PM

    Whoops.

    Thinks I didn’t hit, “Reply.”

    Just learned how to do that a few weeks ago.

    Sorry.

  30. TT
    09/27/2010 at 8:25 AM

    AnnaZed I agree as well.

    • Doug
      09/27/2010 at 8:31 AM

      @Gloria, AnnaZed, TT and others: we are working on getting the forums up and running. Sorry for the delays; hope to have them soon. Until then, I’m sure everyone will do their best to play well.
      Doug, co-ed

      • denton
        09/27/2010 at 9:30 AM

        Doug, the Editors, bloggers,

        You have my pledge:

        no SMUT!
        no cyber stalking
        no boring stuff

        D.

        • denton
          09/27/2010 at 10:08 AM

          adding:

          no self-restraint

      • 09/27/2010 at 9:59 AM

        Doug: I will bring you root beer or whatever else you need to stoke you while you (plural) get the forum function up and running. Please!! Some people cannot seem to exercise any self restraint from posting every little thought that enters their heads. If they cannot impose their own self restraint, the answer is fora (forum plural?)

        If you happen to run into Craig in your travels, tell him I’m waiting for the rest of the info from him re dates and one address. Thanks.

  31. Rich
    09/27/2010 at 11:51 AM

    Well, we’re not only, “Respectfully,” attacking one another, but, now, we’re going after the Editors.

    “Does anyone really care? And ,

    “Let’s not make these 3 into quasi-celebs – no Lindsay Lohan or Paris Hilton -like sightings, please.”

    Evidently, we’re all getting bored.

    I hung with all the,“Avatar,” conversation. And, there was a lot of it. And, I didn’t even know what an, “Avatar,” was at the time.

    Or, the long winded, detailed hash and re-hash of the legal aspects of the case that have been discussed dozens of times in the past…

    Let’s all move forward.

    And, Denton, I’m so disappointed your name is not Denton. I was sure of it.

    • denton
      09/27/2010 at 12:43 PM

      Rich – I sometimes call myself “Jane Doe” for the benefits of not getting hurt. Keep calling me Denton.

      • Rich
        09/27/2010 at 1:33 PM

        Done, Denton.

        It never occurred to me folks may make up names for themselves.

        From here on in, I’m going as Bruce.

        • CDinDC (Boycott BP)
          09/27/2010 at 1:43 PM

          Why don’t you guys exchange personal emails.

          • AnnaZed
            09/27/2010 at 1:51 PM

            Really, for God’s sake, please do.

            • denton
              09/27/2010 at 4:16 PM

              CDinDC and AnnaZed,

              I just want you to know that I feel “very uncomfortable” of your (both) remarks as there is nothing personal between/among me and anyone here. Please accept it as it is.

              • CDinDC (Boycott BP)
                09/27/2010 at 4:39 PM

                Denton, just so you understand my remark, you and Rich tend to stray completely off topic and address each other’s personal lives (i.e., boyfriends, evenings out, etc) on a frequent basis. This type of personal conversation is perhaps more suitable for private email or a chatroom, which this is not. Seems you and Rich have a bit of a commraderie, which is wonderful. And it’s evident to all. Nothing to feel uncomfortable about.

                • denton
                  09/27/2010 at 5:33 PM

                  Thank you for your explanation. I still feel uncomfortable to be publicly criticized in a harsh manner as there was nothing personal, no foul intention, or ill-interests from my part to any contributors here.

                  I really am Jane Doe and please accept me as who I am.

        • Bruce
          09/28/2010 at 6:23 PM

          I resemble that, sir.

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