The Civil Complaint: Something Old, Something New…
With the turn of the leaves in DC comes a new turn in the Robert Wone civil case. (Cue legal filings falling to the ground…)
Filed this week a new motion; one that shuffles the deck for both plaintiffs and defense in the civil case. Submitted by Stephen Rodger for Ben Razi and the Covington team on behalf of the Estate of Robert Wone, the Consent Motion for Leave to Amend Complaint now sits on Judge Brook Hedge’s desk. Both sides are in agreement and this consent motion for the amended complaint is likely to be granted.
One month after Dylan Ward’s indictment and arrest in late October 2008, Kathy Wone’s civil team filed their first complaint. In may ways it was a cut and paste job that relied heavily upon the often shocking and lurid accusations of that warrant.
Covington and Patrick Regan seem to be jettisoning what didn’t work in the criminal trial and doubling down on what did. What did work in their estimation is simple: call it Judge Lynn Leibovitz’ Greatest Hits. That, after the jump.
In any other case the changes probably wouldn’t attract attention, but there are differences between the 2008 complaint and the one filed this week. Subtle differences, but ones that may shape the case, from the discovery process all the way through the October 2011 trial.
Regarding the parties in the case, the who of course remain the same. What’s changed is where.
There have been questions as to where the defendants are living. This filing suggests that Price and Zaborsky were each “…until recently a resident and citizen of the District of Columbia.” So make that whereabouts unknown for the domestic partners. Perhaps striking their current residences from this document was an agreed upon accommodation for the defense consent?
As to Ward: “…(he) is believed to be a resident and citizen of Florida, residing at 550 NE 94th Street, Miami Shores.” This is the home Price and Zaborsky own in Florida where Ward lived at the time of his arrest. We were perhaps misdirected by the State of Washington notary stamp on Ward’s interrogatory response, but now there are indications that may not be the case. The geography just got more confusing for Ward: on trial in DC, his lead attorney in Portland, Oregon, all the while living in the Sunshine State.
Both documents run sixteen pages and some sections they are nearly identical in many regards, namely the seventeen points of facts regarding Robert’s murder. From there the complaints diverge.
Generally, amending a complaint is a non-controversial motion as plaintiffs adjust and focus their argument based on new evidence and developments. In the Wone case, the criminal findings and evidence introduced inject a new, and unusual, element – namely suggestions of serious wrong-doing, but failing to meet the lofty BARD threshold.
The 2008 document had a section entitled, “New information regarding defendants’ conduct and their cover up of Robert Wone’s murder,” that cribbed much of the affidavit language that included sexual assault, swapped knives and the plethora of S&M toys found. The amended complaint does away with that but adds language with perhaps greater weight – Judge Leibovitz’s scathing findings from her verdict, to start.
In the criminal trial the defendants offered a wall of testimony – that they don’t know who stabbed Robert Wone, while maintaining that none of them committed the crime. However, paragraph 26 of the amended filings begins the recitation of Leibovitz’ hard-nosed findings:
“[t]he government has . . . presented powerful evidence to support its claim that Robert Wone’s murderer was either one of the defendants, or someone known to them who was able to enter without breaking.”
“[i]t is very probable that the government’s theory is correct, that even if the defendants did not participate in the murder some or all of them knew enough about the circumstances of it to provide helpful information to law enforcement and have chosen to withhold that information for reasons of their own.”
“…the murder of Robert Wone was not committed by an intruder unknown to the defendants…Overall, the defendants’ story that an intruder committed the offense is incredible beyond a reasonable doubt.”
“In the criminal trial, the court found that “Mr. Price very likely tampered with and altered the murder weapon, and that he lied about his conduct in this regard to police with obstructive purpose (United States v. Price, et al.,)”
This document is obviously written for Judge Hedge but the plaintiffs may have others in mind. The jury that will be seated next October will be reading this complaint word for word and those passages could be searing.
This amended filing cites the same four counts: Wrongful Death, Negligence, Spoilation of Evidence, and Conspiracy. Not necessarily new, but look through all the counts – gone are allegations of sexual assault, gone are discussions of fibers, gone are charges of chemical incapacitation and missing knives. In the criminal trial, these three avenues were losers, and they have now dropped from the plaintiffs’ road map.
So what does this mean? Legal scholars will weigh in, but what seems clear is that there is a metamorphosis occurring on the part of the plaintiffs.
Amended Complaint - September 29, 2010
Original Complaint - November 25, 2008