Ink Fight?

Two Birds, One Response

In the just filed Defense Response to Motion to Intervene, Victor Zaborsky’s counsel Sean Edwards takes the opportunity to respond to both the media’s motion from November 2, and Covington’s Opposition that was entered on October 27.

On page four of the defense motion, the defense distills their basic argument: “Here, Defendants merely seek to enjoin counsel from speaking to the press.  They do not seek to enjoin the press itself from reporting on this lawsuit.” 

They maintain the DC Bar rules on professional conduct do not go far enough and they want all attorneys muzzled when it comes to talking with the media. 

Still stinging from Wone attorney Patrick Regan’s courthouse trash talking after the September 16 status hearing, the defense maintains that long after the ink has been splashed, the stains remain.

While referring to plaintiff’s previous  extrajudicial statements as, “patently untrue… inflammatory and fallacious…  not only misleading, but salacious and slanderous,” they zero in on Regan’s statement that, “Defendants don’t assert their fifth amendment rights if they are not guilty of something,” remains poisonous to the jury pool even though the trial date is remote (exactly eleven months from today).

To butress that claim, Edwards attaches as an exhibit, Keith Alexander’s September 17  Washington Post write-up of the status which featured the Regan quote and was headlined, “Wone roommates won’t testify in trial.” 

The story ran on B-4 of the Metro section, but the attachment is the online version which includes a number of reader comments; comments which the defense says,”provides an example of the negative effect that such ill conceived and prejudicial comments by Counsel has on the potential jury pool.”

“This is like the “OJ” trial all over-They know what happened, and may even be the murderers, but it looks as if they get away with it simply by refusing to cooperate.”  

“Ward, Price and Zaborsky have played the system and “won.” These three know (much about) what happened that night and are not telling. Their secrets and conspiracies bind them. I doubt it will be soon, but at some point their unholy pact will unravel.”

Singling out the hometown paper’s coverage, the motion says, “The publicity given in the Washington Post is just one example of many already provided of the media obsession with this case.” 

The fix, the defense says is this:

“The only workable remedy to prevent an unfair trial through pollution of the jury pool is to enjoin counsel from further filtering prejudicial information into the press for public consumption.  The injunction would not prohibit the press from reporting about this lawsuit, or from gathering facts from other sources. It just limits one of the sources that the media may otherwise utilize.”

Keith’s piece garnered 15 comments.  Whether the anonymous authors of those remarks are a representative sample of the jury pool that awaits the three defendants remains to be seen and is now in Judge Brook Hedge’s hands.

Defense Response

Exhibit 8

88 comments for “Ink Fight?

  1. Hoya Loya
    11/17/2010 at 12:23 PM

    The WaPo comments are not necessarily the result of Regan’s remarks — they can just as easily spring from the simple reported fact that the defendants are taking the Fifth. If the press can continue to report on the story, as Edwards acknowledges, and can continue to run comments sections with the online stories, then the “jury pool” will continue to form opinions and some in that pool will continue to post similar comments.

    If “patently untrue … inflammatory and fallacious … not only misleading, but salacious and slanderous” statements are the concern and all counsel are forbidden from speaking to the press, how will either side be able to set the record straight in the event of errors or distortion by the press (as alleged in the original motion with respect to reporting of the Ward affidavit and prosecutorial charges)?

    Compare the media coverage of this case compared to Gary Condit, the Ramseys, Scott Peterson, Drew Peterson, Casey Anthony, the Duke lacrosse team, Michael Skakel, etc. — it’s nothing. Lots of inside the Beltway coverage during the trial and now its back to just an occasional blip. this case isn’t even close to the level of Dr. Sam or Scooter. But somehow the D.C. rules are supposed to be insufficient to protect the current defendants?

    • Bill
      11/18/2010 at 8:43 PM

      Nothing changes here. Why don’t you all agree to line up at a hang man’s noose and get it over. You obviously aren’t interested in any new information and have VERY CLEARLY decided the fate of the three defendants. Now that I have expressed a clearly different opinion from the mainstream, bring on the hate.

      • AnnaZed
        11/18/2010 at 8:53 PM

        Did I miss something? Where did you articulate your reasons for thinking that the Swann St Three might well be not liable in the death of Mr. Wone? In a civil sense or criminal sense do you mean, or both? I would be interested in your reasoning or could you give me a link to where you posted your opinions previously. Sorry, there has been so much childish nonsense going on here recently that I have taken to skipping a lot.

        • Bruce
          11/18/2010 at 9:36 PM

          Bill, no hate here.

          There are many different people with different takes on things on this blog. I think I may be a bit out of the “mainstream,” as you say, since, while I do think that it is more likely than not that one or more of the defendants is guilty, or at least knows information that could lead to the murderer…

          … I have also expressed several times on here that I am not disregarding any possible theory, even the ninja assassin theory, because every single theory or opinion as to whom did what or knows what has some serious problems associated with it, either by logic or gut feelings, in my opinion.

          Because of this (ok, and also because I am a nit-picking ninny ass at times), I may be more “tolerated” than embraced on here, but that is fine with me.

          There are a lot of clever and articulate people associated with the blog, and if I were to bet, I would put money on the thought that not all readers are readying the rope for a hanging, as you suggest.

          • Rich
            11/18/2010 at 10:15 PM

            As for the Ninja Assasin Intruder theory, I had a long talk with Pat Collins (WRC 4 TV Reporter who covered the criminal case extensively and also an old neighbor)and it’s the only theory he has pretty much dismissed.

            Otherwise, all other theories are on the table.

            Pat was humored ny the Intruder Story.

            • Bruce
              11/19/2010 at 11:30 AM

              Hi Rich:

              Interesting. Well, if a reporter is “humored” (as you say) by, and is dismissive of, any intruder theory, then must we all (NOT) relegate it to things we must think about carefully only when we re-arrange our sock drawers.

              • Rich
                11/19/2010 at 12:11 PM

                Top Draw reporters like Pat Collins, a 10 time Emmy Award Winning Journalist, who is highly regarded for his reporting and analysis of hard hitting and breaking news, must have an opinion that is way more informed than anyone on this blog.

                So, yea, when you rearrange the underwear draw, thank him for his contribution.

                • Bruce
                  11/19/2010 at 12:41 PM

                  No disrespect meant to Mr. Collins or to you, Rich.

                  However, in this particular matter, I would prefer the opinion of a person on the street (informed as to the case) over a reporter.

                  The jury who is going to hear this case is likely, in my opinion, to be much more like the person you encounter on the street than a 10 time Emmy Award Winning reporter.

                  Just saying.

                  Not that I don’t find his take “interesting,” as I say in my earlier post, and not that I think you shouldn’t have posted it.

                  I like to hear all opinions, even if I don’t necessarily agree with them.

                  But I continue to be apprehensive to some extent about the person (reporter or not) that dismisses ANY theory in this case out of hand, as none of them, in my lowly opinion, completely satisfy logic, what most of us expect from human behavior, and, from time to time, gut feelings.

                  Oops. Need to rearrange my sock drawer. Talk at ya later.

                  • CDinDC (Boycott BP)
                    11/19/2010 at 1:03 PM

                    Never been a big fan of Pat Collin’s overly dramatic style of reporting.

                    • Rich
                      11/19/2010 at 1:07 PM

                      Me, too!

                      But, it gets ratings.

                  • Rich
                    11/19/2010 at 1:10 PM

                    The point of the post, was that Pat thoght all of the moving parts associated with the Intruder Theory was a few clicks off of center. From getting into the house, committing the crime and then leaving with no sign that he/she existed.

                    Fro now, he is all over the Levy case and will return after the Status Hearing on December 8.

                    • Bruce
                      11/19/2010 at 2:15 PM

                      I agree with Mr. Collins, Rich.

                      I agree that the Intruder Theory is a few (I would agree more than that)clicks off center.

                      The problem to me is that there is no theory I have heard espoused that has the clickslined up in the center.

                      For instance, the theory that one or more of the Swann 3 actually murdered Mr. Wone.

                      Some of the clicks off-centerinclude:

                      (1) Why kill someone like this in your own house?

                      (2) Why kill someone at that particular time of night,rather than later.

                      (3) Why kill someone on a “school night” with everyone working the next day.

                      (4) What exactly is the motive here to kill one of Joe’s good friends in your own house?

                      (5) If the defendants were drugged out, why does not that show on the videos of the interviews?

                      (6) If it was the Swann 3, why call the ambulance at the time they did, and not later,after hiding the ecstacy, Dylan’s toys and knives and Joe’s porno?

                      (7) What exactly was the murderweapon – the kitchen knife,Dyl’s missing knife from his room, another knife?

                      (8) And many others.

                      We can all have theories and opinions in this regard, but it is all full of “clicks” as you say.

                      Not that the other theories don’t have as many or more clicks.

                    • Bill
                      11/19/2010 at 6:53 PM

                      A response to Bruce — finally!!!! Someone asking better questions about obvious and unsupported issues.

      • CDinDC (Boycott BP)
        11/18/2010 at 9:46 PM

        Oh, boo hoo, Bill. Same silly comments you always make. Give us something else. This is old.

        In any event, none of us can predict the fate of the defendants but we are more than entitled to have OPINIONS on their guilt or innocence. Just as you are.

        So stow it.

        • Bill
          11/19/2010 at 6:54 PM

          Bite me!

      • Clio
        11/18/2010 at 10:23 PM

        Come to Jesus, Bill, but, as we have stated before, we’re all “too busy to hate.” After all, a hangman’s noose is so 1886, the year in which the “sardine can” of 1509 Swann was built. Instead, the readership of WMRW seems quite content to let the (legal) games continue to their eventual outcome — guilty verdicts, settlements, and/or a modicum of justice for all!

        • Rich
          11/18/2010 at 10:39 PM

          Elated to hear, “We’re Too Busy to Hate.”

          I was told as a kid, “All Good Things Come to Those Who Wait.”

          I didn’t believe it.

        • Bill
          11/19/2010 at 6:51 PM

          Bite me; the same old biter response you always have had.

      • Bill 2
        11/19/2010 at 8:02 AM

        Please try to understand, Bill, that if someone disagrees with you, that is not “hate.”

      • Hoya Loya
        11/19/2010 at 8:39 AM

        Bill:

        You obviously didn’t read my post. I said nothing about innocence or guilt — just that I don’t feel the gag order is justified because: 1) it won’t stop the press from writing about the case; 2) it will prevent defendants’ own counsel from correcting the record when necessary (in case you didn’t notice, I’m actually looking out for the defendants here); and 3) media coverage has been limited compared to other high profile cases, including the Shepherd and Libby cases cited in the briefs.

        Ihave taken some less than popular positions here (saying the “Catch-22” email was less than damning; that Joe should retain his law license if convicted; that the “missing knife” theory has been fully discredited; that Judge Liebo’s decision was correct, including with regard to the timeline).

        I remain open to the possibility that someone other than one of the defendants is the murderer. And until conclusively proven otherwise, that possibility is just as troubling as the possibility that they could be guilty of a friend’s murder.Assuming they are innocent, I feel some of their behavior and legal strategy is puzzling and/or misguided and don’t hesitate to say so.

        So don’t lump me in with your “lynch mob,” which doesn’t exist. Differing opinions, expressed with courtesy and tact have always been welcome here. Snide remarks, from both sides, do nothing but bring out the worst in everyone and bring down the site.

        Let’s get back to analyzing the civil case and maybe solving the crime, no matter who may be guilty.

        • Bill
          11/19/2010 at 6:52 PM

          I’ve read, I just don’t agree.

          • CDinDC (Boycott BP)
            11/19/2010 at 7:43 PM

            And you’re entitled to disagree. :>

          • Hoya Loya
            11/21/2010 at 10:52 AM

            Bill:

            If you disagred with my opinion that the gag order is misguided, then you should have stated “I just don’t agree” as your original response, maybe even giving reasons for your opinion, which I note you still haven’t done, rather than posting your standard lynch mob spiel.

            • Hoya Loya
              11/21/2010 at 11:07 AM

              Just want to confirm that is really me above — on another computer and must have mistyped my email, ergo no mascot avatar.

      • Bill
        11/19/2010 at 6:59 PM

        Notice below Bruce’s outstanding questions (Bruce on 11/19/2010 at 2:15 PM). I stay way for weeks only to return to the same old questions dressed up for a new dance. This is just lipstick on a pig, What is missing — and what Bruce presents so well — is a challenge for new and better questions.

        • AnnaZed
          11/19/2010 at 7:03 PM

          Then by all means pose some.

          • Bill
            11/19/2010 at 8:28 PM

            As I have stated above, read those questions presented by Bruce. Challenge your (and other’s) assumptions. So many of you were “shocked” by the criminal verdict b/c you would not allow yourselves to “see” alternative scenarios. Don’t set yourselves up for the same blindness wit the civil trial.

            • susan
              11/19/2010 at 9:05 PM

              Hi Bill,

              You don’t state what you mean by an “alternative scenario” but the criminal verdict by the judge dismissed the notion of a “ninja assassin.” Go back and read the judge’s decision. She suggests that one of the so-called “trouple” knows who committed the crime, etc.

              I think the point is, your posts will be more valuable to others if instead of just posting every once in a while to whine, you said something substantive. I’m all for hearing of new theories. All for it. But it takes more than just throwing something out there (e.g., the gardener did it). The information known must be employed to support the theory (the gardener is known to have had a key and was there earlier in the day). Or you could just come online every few weeks to create a scenario of you vs. everyone else, pout, and leave. But when you do that, you really don’t contribute anything.

            • CDinDC (Boycott BP)
              11/20/2010 at 9:50 AM

              Doesn’t change my mind. I’ve reviewed the evidence and LACK of certain types of evidence and still come to the conclusion that it was an inside job. The most damning evidence is the lack of evidence of an intruder. The switched knife. The defendants behavior. And the flimsy spider story.

              I don’t know the defendants and have no reason in the world to want to see 3 young men be blamed for something they didn’t do. But the things that don’t add up in my mind point to guilt. Not innocence.

              Sorry Bill. It is what it is.

              This doesn’t make me bad or mean or uncaring or stupid or narrow minded or anything else a pro-trio person would like to label me. I just see it different than you.

              • Bruce
                11/20/2010 at 1:51 PM

                Hi CD:

                You have had much time to review the evidence and lack of it, and I think your opinion is very reasonable and to be respected.

                What some of us may have a little difficulty with is your sentence:

                “The most damning evidence is the lack of evidence of an intruder.”

                In my mind, there are really two types of evidence in this regard.

                First, the evidence we can ascertain by normal reasonable deductions, our senses and based upon what people say and do in this case.

                Second, is the forensic evidence that can be determined by a professional and organized criminal investigation, including the use of scientific and laboratory testing.

                It is to that second kind of evidence that I am very suspicious about and concerned about.

                Frankly, I am kind of mad that the police and forensic investigators did not do their duty, in my opinion, in this regard.

                And if they had done their duty, maybe there would be even fewer people who do not fully endorse your opinions in this regard.

                That lingering doubt bothers me a lot. I realize that it may not bother others, based upon the first kind of evidence we have, described above.

                While I certainly think that it is more likely than not that this was an inside job, I just can’t yet embrace it as a firm opinion.

                • CDinDC (Boycott BP)
                  11/20/2010 at 2:57 PM

                  I certainly understand your feelings about this case, Bruce. Perhaps that’s why there was an acquittal for the trio.

                • Bea
                  11/20/2010 at 3:30 PM

                  Curious if Bill and any others who believe in the acquittal have an opinion as to WHO may have killed Robert Wone. I don’t mean whether there is evidence to convict in a criminal trial but in a GUT sense, after reading for countless hours about the available evidence and factoring in common sense.

                  The best I can see for the defendants – and I think the Judge all but said the same thing – is that each can wink and nod toward a different defendant and thus there is a circle of three, one or more of whom either stabbed Robert to death or watched as someone else did. Bill, thinking in terms of crime-solving, do you not agree?

                • Hoya Loya
                  11/21/2010 at 11:59 AM

                  The most damning evidence is the fact that the defendants’ own kitchen knife was the murder weapon and that Joe Price admits he may have removed it from Robert’s chest or did remove it (depending which version we believe); the single not too bloody towel, when Victor’s 911 call indicates there should have been two; Victor’s statement in the call that Robert was still breathing and that they heard the chime; the observations of the first responders that contradict Victor’s 911 statements about Joe applying pressure; and the lack of defensive wounds. Also crucial for me, though I know this is controversial, the presence of numerous restraints in the house that might have prevented defensive wounds. The mouthguard negates, I think, the theory that Robert was participating in any extra-marital hijinks.

                  The most exculpatory evidence is the lack of any direct physical or DNA evidence, eye witness testimony or evidence of intent of any sort against any of the three defendants.

                  It was not established at the criminal trial that the knife was switched or even that “Dylan’s knife” was ever in the house. Due to misapplication of Ashley’s reagent there is no admissible blood splatter evidence. Due to late/insufficient testing, there is no evidence of drugs in Robert’s bloodstream so that no conclusion can be definitely drawn from any non-EMT/ER needle marks. Cadaver dog alerts are not admissible. The lack of evidence of an intruder sheds doubt on the intruder defense but does not establish guilt against any one of the three absent additional evidence. The wide time-frame of the Maureen Bunyan newscast means the scream heard by the neighbors could have occurred as late as just past 11:30, the possibility of sound-alike might extend that even more.

                  It is very probable that Robert was stabbed just prior to the 911 call and that tamponade ensued or that he was already dead or near death from other some other cause, hence little bleeding out. One or more of the defendants may suspect or may know the identity of the killer. If so, they may not know for sure or have proof or solid leads or may have reasons, such as fear of reprisal or of self-incrimination on other related or unrelated charges, for not telling what they know or suspect. Or one or more may be guilty. There remains, IMHO, a halfway decent circumstantial case against at least one, but that would be very difficult to make stick in court and I’m not convinced myself, just think it could be alleged. So at the moment, little can be proven — hence the lack of murder charges to this day. And little can be disproved, hence the divergent opinions on this site.

                  • Bruce
                    11/21/2010 at 12:22 PM

                    Hiya Hoya:

                    Thanks for your thoughtful post.

                    As to your statement about 6 lines down in your post:

                    “….the fact that the defendants’ own kitchen knife was the murder weapon..”

                    I’m not so sure that after the criminal trial anyone now firmly believes that this kitchen knife is necessarily the actual murder weapon, and that this is a “fact,” as you say.

                    Lots of forensic expert testimony on that subject in the criminal trial, including testimony by the venerable Dr. Lee.

                    And if it was not the kitchen knife, and was not the knife from Dylan’s handy knife set in his room (didn’t his mother testify that she had that knife?)…

                    …then whose knife murdered Robert Wone, and where is it?

                    Just one of the clicks off-center, in my lowly opinion.

                    • Hoya Loya
                      11/21/2010 at 12:43 PM

                      Bruce:
                      Not one expert in the crim case would rule out the kitchen knife as the weapon — not the ME, not pork loin guy, not the MD ME, not Dr. Lee. I believe Dr. Lee and the other defense knife expertopined that it most likely was the weapon. All said it could be consistent with the wounds. I kept waiting for the prosecution to put on a witness to rule it out and it never happened. Joe says that is the knife he found at the scene (or possibly still in Robert’s chest). Robert’s blood,tissue and chest hair was found on the kitchen knife. And I believe Judge Lynn found that it was the likelyweapon. That’s good enough for me.

                      Likewise, not one said that “Dylan’s knife” was more likely, just that it might also be consistent with the wounds — but it was never proven that it was ever in Dylan’s possession, never mind used and then swapped out and hidden.

                      Let’s not complicate thingsunneccessarily further by opining that a mystery “third knife”might have been the weapon.

  2. BenFranklin
    11/17/2010 at 2:45 PM

    Clearly Wone attorney Patrick Regan must be gagged. He’s already polluted the jury pool and wants to continue to do so.

    Thankfully it will take years before the appeals on the SOL issue are resolved – enough time for the damage he’s caused to heal.

    • She did it
      11/17/2010 at 8:17 PM

      Ben, darling. Michael the gay sensual uber Massuer will be getting a new hip or two by the time this case and its appeals are finalized. During that time period, I hope Agnes and Vickie can heal from the damage and hurt that Michael brought to their lives. I remain skeptical that the decade that this murder and its fallout have cost Vickie will be enough time for healing, but I do believe a gag on Michael is somehow not out of the question.

      • Craig
        11/17/2010 at 10:32 PM

        SDI: Seeing you back here is an early holiday gift. And we’d be negligent if we didn’t alert the newer readers of Ben’s very own history of patently untrue, inflammatory, fallacious and misleading comments, e.g. the downright lies he tried to peddle here during the summer trial. Love to (almost) all.

        • She did it
          11/18/2010 at 7:51 PM

          Flattery will get you everywhere, dear Craig. You and your gang have stayed fabulous all this time; yes you Clio and CD. Keep it up! Off to an enema and a massage; love to all, even Lance.

          • CDinDC (Boycott BP)
            11/18/2010 at 8:34 PM

            kisses, SDI!

          • Clio
            11/18/2010 at 10:12 PM

            Enjoy, SDI: as you endure your regimen, smile and think of England!

    • galoon
      11/17/2010 at 10:27 PM

      Ben. No amount of time will heal the damage caused by 3 men who continue to pollute the human pool.

      • Clio
        11/18/2010 at 10:12 AM

        “The defense maintains that long after the ink has been splashed, the stains remain.” Isn’t that true with blood and other bodily fluids, too, Joe?

        BTW, in his current ad for one-on-one bodywork, Dyl pushes specific creams and lotions: can anyone verify his claims about these elixirs for the skin? Can they be that good?

    • carolina
      11/18/2010 at 2:14 PM

      Speaking of gagging.

      • Bruce
        11/18/2010 at 2:21 PM

        At least as to one woman’s lovely dress, I am sure that our former President Clinton would agree that “…the stains remain,” as you deliciously evoke in your post, Clio.

  3. Michael
    11/17/2010 at 3:00 PM

    Clearly the trouple is afraid to take the stand.

    Very afraid.

    Deathly afraid.

    Innocent or guilty, they are afraid.

    Very afraid.

    Deathly afraid.

    • Bruce
      11/17/2010 at 3:22 PM

      Good enough, Michael, but do you think they will be afraid?

      • dieter
        11/17/2010 at 3:58 PM

        when i think about how dumb my comments sometimes are, all i have to do to feel better about myself is read mikey’s

        • denton
          11/18/2010 at 1:04 PM

          mikey is ink fighting

  4. Bruce
    11/17/2010 at 3:16 PM

    First, we must be catty.

    I counted at least 5 clear typos and a page in a case citation left out for apparently no good reason. The typos in most part seemed to be where people changed or inserted items, and then failed to make the surrounding words synchronize with the changes.
    Someone forgot to do a last good reading (for mistakes) of the brief before it was filed. Oy veh.

    On the merits, I think it is a pretty good brief, and seems to tackle the biggest of the plaintiff’s and intervenors’ arguments. Of course, as always, I haven’t read the cases cited.

    It does seem odd to me that the parties, esp. the defendants, are mixing civil case law with criminal case law in their citations.

    This is a civil case, and certain constitutional and other considerations may not apply to a civil trial, compared to a criminal trial. For instance, we already know that civil and criminal courts treat 5th Amendment issues differently. In a civil case, most jurisdictions, as I recall, allow a special instruction to the jury that they can take it into consideration in their decisions, whereas that is forbidden in criminal cases, which treat the 5th Amendment religiously.

    • KKinCA
      11/18/2010 at 8:11 PM

      Bruce – I had the same reaction as you regarding mixing civil with criminal, particularly when the phrase “innocent until proven guilty” appeared in the brief. Should it be “not-liable” until “found liable”? I am neither a criminal nor civil litigator, and my law school years are far too long ago to admit publicly! P.S. I am a stickler for typos myself – they drive me batty, even with my kids’ schoolwork. With them I have learned to let go a bit! [but never professionally] Shame on the trouples’ counsel!

      • Bruce
        11/18/2010 at 9:19 PM

        Hi KKinCA:

        Don’t remember seeing your handle around these here parts before, but compared to many I am still a newbie. Welcome!

        I’m afraid that most of the published opinions on point are probably in the criminal area on these topics being batted about in the trial court. But this is a civil case!

        Since all the attorneys in this case are smart enough to know that, even a little footnote with the first cited criminal opinion, recognizing the challenge and explaining why you are using criminal case law for your arguments might have been a nice gesture to the judge, signaling that no one should think that she, or they, are bone heads.

        • KKinCA
          11/18/2010 at 9:52 PM

          It seems like every aspect of the quest for justice in this murder has no precedent. I often find myself scratching my head while reading the blogs posted by our wonderful editors. Thanks for the welcome (back) – I was around a little bit during the trial last Spring, but my elderly mother was admitted to the hospital shortly after the verdict and now I have very demanding caregiver duties (curse of the baby boomers).

          I lurk here occasionally but haven’t posted in ages. Bruce – I do enjoy your posts and even sometimes (!) agree with you. But mostly I enjoy you stirring things up (in a more tolerable manner than old reliable Ben Franklin).

          • Clio
            11/18/2010 at 10:06 PM

            And to think Ben had introduced Baron von Steuben to General Washington himself — given that fortunate introduction, his actions on this blog are unbelievable!

            For the ever hopeful Victor: “The only way a woman can ever reform her husband is by boring him so completely that he loses all possible interest in life.” Oscar Wilde.

      • KiKi
        11/19/2010 at 9:01 AM

        Hi KK,

        My take on it is that the citations to the criminal cases are to negate the statement that “defendant’s do not assert their 5th Amendment rights unless they are guilty of something.” Or in other words to prove the proposition that this statement has been rejected by the courts. I agree with Bruce too, that there is probably little “civil” law on the subject.

        But beyond all this, I think Regan’s use of the term “guilty” clearly demonstrates that he was only trying to inflame the public and the media. He knows full well that this trial has nothing to do with guilt or innocence. It was a very ill advised statement and I think it will come back to haunt him, if not here than in the appellate courts.

  5. Bea
    11/17/2010 at 8:10 PM

    My guess is that the Honorable Judge will admonish counsel to be careful to follow the DC rules and deny but I don’t feel strongly about it. If it’s granted, it will be interesting to watch defense counsel having reporters shout “since you’re client’s taking the 5th does that mean he murdered Robert Wone?” and not being able to say a word. What goes around comes around.

    • carolina
      11/18/2010 at 2:17 PM

      This…this might be worth it, Bea. Yes, I think it would.

  6. Bill Orange
    11/17/2010 at 9:32 PM

    I still don’t understand their argument here. The defendants seem to have their knickers in a twist over the statement that “defendants don’t assert their fifth amendment rights if they are not guilty of something.” Can’t the plaintiffs make EXACTLY that statement in open court?

  7. Bruce
    11/17/2010 at 10:13 PM

    Bill O:

    Very good question. But, if plaintiff’s counsel says such a thing at trial, you can expect a motion for a mistrial from the defense.

    It is an untrue statement, first of all. Second, what is said or conveyed in front of the jury regarding the 5th Amendment usage will be likely greatly scrutinized by the judge, and likely limited to a jury instruction that they can take it in to consideration in their decision making, but no more.

    Frankly, I doubt that a judge would grant such a motion for mistrial in this made-up instance, but the judge would likely rather advise the jury that what was said by plaintiff’s counsel is untrue and incorrect, and they should not consider it at all in their deliberations or considerations in the case.

    But I would be interested in what others think on the topic.

    • Bea
      11/18/2010 at 4:33 AM

      Bruce, I think you’re greatly underplaying the damaging effect of taking the 5th in a civil case. Yes, there will be an instruction, but I doubt that the instruction will be, as you say, that the jury can “consider” the assertion. The jury will be likely instructed that they may draw an ADVERSE inference as to the questions asked.

      I couldn’t quickly get my hands on the Standard Jury Instruction used in DC, but the US Supreme Court has stated that an ADVERSE inference can be drawn from the silence in asserting the 5th in a civil case. The adverse inference allows the jury to draw a presumption that the response to the refused question would have been adverse to the witness as to the question asked, and plaintiff’s counsel will push this as much as possible: invoking the privilege creates a strong inference that the answers would have been unfavorable and damaging.

      Baxter v. Palmigiano (1976)

      Moreover, before this case gets to trial, the defendants will have to pare down the questions they’ll get NOT to answer by getting specific as to WHAT is incriminating and why.

      And think of the impracticality in addition to the legal implication:
      Q: “Do you know who stabbed Robert Wone to death?”
      A: I refuse to answer on the grounds that it may incriminate me under the 5th Amendment.

      Too, if the motion is granted, the defense counsel will be in a very tough spot since the ONLY way to ‘get out there’ (italics) the defendants’ reasons for taking the 5th other than the ordinary conclusion is to talk to the press.

      • KiKi
        11/18/2010 at 9:48 AM

        I agree with Bea on this. I don’t know about DC precedent. However, before my husband went to work for the Man, he litigated civil trials in the 5th circuit. According to him, under at least 5th and 2nd circuit precedent is completely proper to comment on a party’s invocation of the 5th Amendment in closing arguments. He claimed that most judges he practiced in front of would have allowed an attorney to tell the jury exactly what adverse inference they should draw from the party’s refusal to answer. And it is standard practice for a judge to issue a jury instruction stating such.

        However, I agree with Bruce that the statement made by Regan would never get in front of a jury. It is patently untrue. There are numerous reasons a defendant would invoke the 5th Amendment even if he was not guilty, and Regan knows this and likely has advised clients to invoke the 5th amendment. Whatever the judge decides, I do think she will take some time to admonish Regan for this statement and “set the record straight” that this is an untrue statement.

        But as far as the trial goes (if there is a trial) I would expect a lot of comments from the plaintiff’s attorneys regarding the defendants invocation of the 5th.

        • Rich
          11/18/2010 at 10:20 AM

          “… a lot of comments from the plaintiff’s attorneys regarding the defendants invocation of the 5th.”

          Count on that one.

          Ben and I have talked and he is quite straight up and motivated.

        • Craig
          11/18/2010 at 10:23 AM

          It may behoove us to pull some DC civil jury instruction docs. Sarah Larimer @ TBDJustice just posted the Levy one.

          Although a murder trial, instruction 2.108 goes into BARD and mentions the different thresholds for DC civil trials: “In civil cases it’s only necessary to prove that a fact is more likely true than not, or, in some cases, that its truth is highly probable.

          There’ve got to be some DC civil instrux that go into invoking the 5th, like this criminal one does @ 2.208.

          • KiKi
            11/18/2010 at 10:43 AM
            • denton
              11/18/2010 at 11:55 AM

              Would LexisNexis search help? I don’t have an account with LNx but someone might have.

            • Craig
              11/18/2010 at 12:36 PM

              Thanks Kiki: Sean the Intern has moved on (to actual employment) so we’re a little short handed. Nonetheless, we’ll try and track this volume down.

              • Bruce
                11/18/2010 at 2:51 PM

                I did a quick check on the internet and could find no free resources to get model, standard or pattern civil jury instructions for DC.

                I did find, at http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=42533, the following:

                “Standardized Civil Jury Instructions for the District of Columbia”

                Availability: In Stock
                Publisher :Matthew Bender
                Format: 1 volume, looseleaf , BOOK
                ISBN: 9780820554495
                2002 $288.00

                if any zillionaires out there want to donate it to the blog.

                Otherwise, it is to the law library one must go!

                • denton
                  11/19/2010 at 8:10 AM

                  Bruce – Donald Trump wouldn’t mind to fund the research as Bill 2 has suggested earlier. /d.

              • Clio
                11/18/2010 at 10:16 PM

                Craig, dearest, are you looking for a replacement for Sean, who cannot ever really be replaced? Perhaps, one of our readers may come forth to volunteer their time and energy.

                • Craig
                  11/19/2010 at 8:02 AM

                  Clio: We’ll certainly staff up again as we get closer to trial, but in the meantime we’re OK. I think we’re starting to get the hang of this.

                  • Cat from Cleveland
                    11/19/2010 at 3:33 PM

                    Craig-

                    Please don’t tell us you want to go to law school? If any of you are considering it, you must watch this (all you lawyers out there should see it, too!)

                    http://www.youtube.com/watch?v=nMvARy0lBLE

                    • susan
                      11/19/2010 at 8:05 PM

                      Cat,

                      That is so funny!
                      Thanks for sharing.

                    • Craig
                      11/21/2010 at 11:22 AM

                      Cat: Hilarity. “It must be such a thrill to argue a constitutional issue.”

                    • denton
                      11/21/2010 at 12:37 PM

                      Going to law school “doesn’t get any better than this!” Brilliant “preview,” Cat. I’ve fallen off my chair a few times. Lol /d.

        • Bruce
          11/18/2010 at 11:19 AM

          Hi Kiki:

          I did my response to Bea before reading yours.

          Completely agree with you, but wonder if this will be taken up by the judge during motions in limine, and she may set some guidance for the attorneys on the issues of the 5th.

          • KiKi
            11/18/2010 at 11:35 AM

            I can’t speak to these lawyers, but from my experience I would almost guarantee that it would be dealt with in a MIL. I think that is the key to what, we on this blog, should be anticipating. At least in the crim world, the juicy stuff is often in the MILs.

            • Bruce
              11/18/2010 at 12:04 PM

              New Acronym for non-legal beagles: MIL means Motion in Limine.

              In every trial I have been involved in, each side files MILs, and the court usually sets a date for those to be filed, usually within a month or so of the trial (but this changes jurisdiction to jurisdiction, and sometimes judge to judge).

              Some of the motions may be what is sometimes called “routine,” by the parties or the judge. These might include such things as a MIL for the judge to enter an order that no one (witnesses or attorneys)should mention wealth or poverty of any party or witness, enter an order that witnesses called to testify (except for the parties themselves) not be in the court room to hear other witnesses testify, and order that no one should mention anything about insurance in front of the jury, etc.)

              But, sometimes MILs very specifically request that no witness or attorney say so and so, etc., and may go to the heart of some of the issues, may attempt to keep an expert or witness off the witness stand for certain reasons, etc.

              Thus, some attorneys might even tell you that they have won a trial or lost a trial because of rulings of the court on MILs, keeping certain things, issues or witnesses from the jury during the trial.

              If properly preserved in the record of the trial, rulings on MILs can be appealed after the trial, and can be the basis of reversals, so much attention is applied to them if dealing with controversial matters.

              MILs are not just for any one party. They are used by all to try to accomplish their goals and trial strategies, and can go to the benefit or detriment of any party.

              • denton
                11/18/2010 at 12:13 PM

                Bruce – I was going to ask KiKi, you, or Bea on the MIL? Thanks for not losing us (readers) in the legal jungle here.

                • Clio
                  11/19/2010 at 10:49 PM

                  MILs probably are better than mills or mls., and they apparently are more appropriate here than MILFs. At any rate, special thanks must be extended to Bruce for clearly decoding the legalese. XO, Clio.

            • Bea
              11/18/2010 at 12:47 PM

              That MIL will be hard fought by both sides. Assuming defendants are still trying to invoke the 5th by trial, plaintiffs will do somersaults to engender the imaginary of what Regan said without violating the MIL (not explicitly, which I agree is patently wrong, but certainly has some juice in the rhetorical, posed in front of the jury, including large visual aids of each question to which defendant(s) asserted the 5th).

              • Bruce
                11/18/2010 at 2:16 PM

                Agree, Bea:

                I would expect that with no controls on any of the attorneys through the ruling on an applicable MIL, that Mrs. Wone’s counsel will make a very big deal about the defendants’ taking the 5th before the jury, with visual aids, etc., as to all questions they refused to answer, and reasonable adverse inferences the counsel believe that the jury should take from that.

                Further, I would expect the defendants to call police investigators, etc., and show the jury how bad the investigation was here, that who can blame the defendants for taking the 5th under those kinds of circumstances, that they are only using rights given to them under the Constitution, blah blah blah.

                Not much of any doubt in my mind that Mrs. Wone’s counsel are going to beat the defendants on that issue, unless the defense counsel can perform some kind of miracle, and this may very well be the most influencial issue on the jurors minds in making their ultimate decisions.

                My guess is that the judge will put few controls on counsel prior to the trial regarding what they can say to the jury about the 5th, other than possibly banning the statement in front of the jury, words to the effect of what Mrs. Wone’s attorney said in the court hallway recently, that if you invoke the 5th, you must be guilty of something (paraphrasing).

          • Bruce
            11/21/2010 at 12:08 PM

            Hi Cat:

            You’re video link is hilarious.

            “I hate my blackberry. I would like to torture it until it begs me to kill it.”

            Just one of the gems.

      • AnnaZed
        11/18/2010 at 11:10 AM

        Thanks for this Bea, that was pretty much what I remembered (ok vividly remembered) from the two civil trials that I sat as a jurist on in New York State. Not being a lawyer I didn’t want to wade in and just muddy-up the conversation further, but my memory is of lawyers making a great deal of hay about invocation of the fifth, and this was with defendants who answered a considerable number of questions and only invoked these rights once or twice. I am trying to picture the near apoplexy that would have been induced in those particular legal representatives if a defendant had refused to even verify his telephone number.

      • Bruce
        11/18/2010 at 11:14 AM

        Hi Bea:

        I did not mean to indicate that I thought the pleading of the 5th will not have a greatly damaging effect for the defense in the case.

        I agree completely with you, it will be a tremendous issue to the jury, and most likely, in my opinion, may have the greatest effect upon any decision by the jury. And, again in my opinion, the issue of the 5th may be the factor that determines the guilt of the defendants by the jury, despite whatever evidence or testimony or theories are shown by the defense.

        And thank you for your correction to my post: I do think the jury instruction will likely say the jury can draw an ADVERSE inference from the pleading of the 5th as to the questions asked, as you wisely opine, rather than my milk-toast description: “…that they can take it in to consideration in their decision making, but no more.”

        Also, I agree that there will likely be much discussion as to exactly when and to what questions the defendants can legitimately raise the 5th.

        Someone on here posted a link to an article a month or so (sorry, can’t remember the poster or the name of the article), that was almost a guide to attorneys opposing a witness pleading the 5th, and it explained that you can’t just raise the 5th to any question, there must be a basis for raising the 5th.

        Cross-examination for this by Mrs. Wone’s attorneys will likely dramatize and emphasize the objections relating to the 5th, and in those instances where the judge does not allow it, point out to the jury that the defendants are trying to do more on this than the court will allow.

        The post I was making was more directed to what the attorneys may say to the jury in Closing Arguments about the defendants pleading the 5th.

        I do think they will likely be allowed to reference the jury instruction on the topic, and even put it on an easel for the jury to ponder.

        But, I also think that the judge will likely lay down some rules about what can and cannot be said about the use of the 5th, probably during the time of determining motions in limine (for non-lawyers, motions in limine immediately before trial usually try to limit what the opposing side or witnesses can do or say at trial, and can be as to a lot of issues in the case. I recently filed about 29 motions in limine in a case coming up for trial).

  8. susan
    11/18/2010 at 12:49 AM

    Getting Away with Murder in DC

    H. Jaffe in Washington Examiner, Nov. 11.

    http://www.washingtonexaminer.com/local/dc/Getting-away-with-murder-in-D_C_-1529941-107375418.html

    He makes some good points. But there is more to why the major suspects in both cases he mentions are, indeed, the major suspects. In the Levy case, the witnesses who came forward and testified were attacked around within the same general time period that Levy was attacked and murdered and in the same general vicinity. The person who attacked the women that lived was I. Guandique.

    In the Wone case, it is known as a fact that three men were in the vicinity when R. Wone was murdered: Victor Zaborsky, Dylan Ward, Joe Price.

    I agree with Jaffe that the police in DC often do shoddy work.
    Let’s hope he’s wrong about getting away with murder. The thing is, people who’ve murdered and remain on the loose probably always…have….to… look…over…their…shoulders….watch….what….they…say…to keep from getting caught. They may not be behind bars or doing the time for the crime of murder, but they may not be exactly getting away either.

    Time will tell. And/or maybe someone else will.

    • Bill Orange
      11/18/2010 at 9:15 AM

      He seems to be confusing Joe Price and Michael Price.

      I seem to be in the minority on the Chandra Levy case, but I still can’t understand why Gary Condit hasn’t been charged with multiple felonies. He somehow refused to answer questions at the murder trial without invoking his 5th Amendment rights. Based on what I read of his performance, if I were a jury member at the trial, I would be very inclined to think that Condit has provided reasonable doubt for Guandique.

  9. Craig
    11/18/2010 at 2:35 PM

    RE: MILs (because the comments were getting skinny)

    We saw a boatload of MILs during the criminal; so many in fact, we learned how to pronounce limine correctly. It does not rhyme with lime we found out (Thanks Themis!).

    I’m wondering if Cov has already sent the message to the defendants on how they may proceed in some fashion on the 5th.

    On page 8 of the Sur Reply is this: “In advance of trial, if Defendants persist in refusing to answer questions regarding their fraudulent concealment based on self-incrimination concerns, Mrs. Wone will seek a variety of relief under Superior Court Rule 37, including relief relating to Defendants’ statute of limitations defense. This relief will include an order precluding Defendants from offering evidence on the date Mrs. Wone had inquiry notice of Defendants’ involvement in her husband’s murder, see, e.g., SEC v. Cymaticolor Corp., 106 F.R.D. 545, 550 (S.D.N.Y. 1985)

    Can ‘variety of relief’ take the form of a MIL?

    • Bruce
      11/18/2010 at 2:59 PM

      It certainly can, Craig.

      But I would expect that the issue of any sanctions against the defendants for failure to follow court orders as to answering questions will be determined long before the time for filing of MILs will come to pass. But who knows?

      We have discussed on the blog in the past the possibilities of the defendants refusing to follow court orders as to answering questions and relying on the 5th, and the possibility of the plaintiff getting a default judgment against them as a sanction, with a trial only to determine proper damages to Mrs. Wone.

      There are a variety of sanctions and possible scenarios available as to what happens if…… Let it just be said that in my opinion, the judge is not going to be backed into a corner in dealing with these issues and will have a broad array of possible weapons at her disposal in doing so.

      Mrs. Wone’s attorneys are certainly attuned to the possibilites available, and the defendants are the ones in the corner on this one. Of course, no one has violated a court order of this judge (that we know of)…….yet.

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