On the Menu

12/06/2010
By Doug

A Look Ahead to Wednesday’s Buffet

Wednesday’s 10am status hearing finds us back at Moultrie for the first time since September. Originally set to hear arguments on the Defendants’ 5th Amendment privilege plea during depositions, several other issues have been added to the agenda.

One of them includes the future media coverage of the case.

A total of five motions are lined up for potential argument before Judge Brook Hedge; much of this business set off by plaintiff counsel Patrick Regan’s smack-talk following the September 16 status. 

His post-hearing comment that “defendants don’t assert their fifth amendment rights if they are not guilty of something,” caused no small amount of consternation for Team Swann.

Their filing of a Joint Motion to Enjoin Legal Counsel from Making Extrajudicial Statements led to a Plaintiff’s Motion to Oppose.   This led to a Motion to Intervene helmed by this site, and joined by other media partners.  Other menu items and the hearing notice follow.

Other matters include the defendant’s Joint Motion to Dismiss Counts One, Three and Four of Plaintiff’s Complaint, or in the Alternative, for Summary Judgment, and the more recent plaintiff’s Motion to Compel Deposition Testimony.

It’s been addressed before, but the essence is this: on November 10 Dylan Ward, his attorney Robert Spagnoletti, plaintiff Kathy Wone and her attorney Ben Razi and other legal hangers-on met for Dylan’s deposition.  Nobody was expecting much in the way of new information…but not even a word?

Ward’s mute act led to the unusual intervention by Judge Hedge herself via phone, but even that wasn’t enough to clear the impasse.  Hence the argument on Wednesday: defense says precedent is on their side to allow each to remain silent, plaintiffs argue that only a defendant can actually invoke their 5th Amendment rights.

Why does this matter?  As others have pointed out, this may be an effort on the part of defense to keep the civil jury from hearing that their clients invoked the 5th – which, depending on the instructions, the jury may use as information to draw adverse inference.  After all, if Ward never said he invoked the 5th, can the jury know that?

Given that each motion may hear argument from both sides, this status hearing probably won’t be short.  As always, we’ll be there from start to end, and update as often as possible.

Two last notes.  First, some have asked if it’s slightly awkward to simultaneously be covering this trial and a part of its business?  In the matter of the gag order only, not so much.  Sunlight is everyone’s business.

And speaking of awkward, how must Joe Price and Victor Zaborsky feel about not being on the invite list?  Well, of course they are, as is Dylan Ward.  However the DC Court seems not to know that none of the original housemates currently live at 1509 Swann, where hearing notices were mailed. 

A similar error was made for Ward for the September status hearing, but they at least seem to have figured out his current residence.  Quelle horreur!

11/23/2010 
Notice for: Status Hearing Issued on: 11/12/2010 Notice Mailed to: 
Joseph R. Price Address: 1509 Swan Street NW Washington, DC 20009
Notice Returned to Court on: 11/19/2010 Reason: Unable to Forward 

11/23/2010 
Notice for: Status Hearing Issued on: 11/12/2010 Notice Mailed to: 
Victor Zaborsky Address: 1509 Swan Street NW Washington, DC 20009
Notice Returned to Court on: 11/19/2010 Reason: Unable to Forward

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38 Responses to “ On the Menu ”

  1. Anonymous on 12/06/2010 at 11:07 AM

    Can’t the plaintiff simply call the defendants to the stand during the trial and force them to invoke the 5th amendment privilege live in front of the jury? In a civil case, defendants can’t avoid being called to the stand entirely, can they?

    • Bea on 12/06/2010 at 1:26 PM

      In a word, yes. But trials are all about being careful – it would be strange, of course, if one went on the run or died of an early heart attack. Then all that would be left are the depositions to play for the jury.

      Also, if there is ever an inconsistency, best to have the records complete on the depositions.

      Finally, sooner or later there will be a refinement as to which questions the 5th is applicable and the plaintiffs want to force the defendants to try to make that determination earlier – if, for example, they answer a particular question in a depo by taking the 5th then later try to answer it with some self-serving answer, they will be asked by plaintiff’s counsel “didn’t you take the 5th when asked during your deposition?” – possibly even keep out the ‘answer’ at trial because they’d stonewalled at the depositions.

      Maybe it seems like a silly tactical move, but it is very important.

      • Anonymous on 12/06/2010 at 1:29 PM

        I see — Thank you for that very helpful explanation.

    • Cat from Cleveland on 12/06/2010 at 5:07 PM

      They can be called to the stand – and then testify. Plaintiff’s counsel would then have nothing with which to cross examine them, and no idea what they are going to say. Plaintiff is entitled to know now whether they will refuse to testify at trial, and if not, what they will say, so Plaintiff may prepare her case.

      • Anonymous on 12/07/2010 at 12:01 PM

        Thanks, great point. I was more concerned with the “how will the jury know Ward invoked the 5th if he doesn’t say it himself” argument over the necessity of determining whether the attorney or client has to invoke the 5th at the depositions. It seemed obvious to me that the jury will hear him invoke it when he gets on the stand live and does it.

        But your point is well-taken — obviously the plaintiff is entitled to depose the defendants in advance of trial for all the reasons you mentioned. And, in the event the defendants do testify, of course it will make for cleaner witness impeachment to have the 5th amendment invocations on the transcripts/videos coming straight from the defendants’ mouths.

        • CDinDC (Boycott BP) on 12/07/2010 at 1:45 PM

          Whether or not Dylan et al invoke the 5th for themselves….whether the say it or not….if they sit on the stand and refuse to answer ANY question, if I were sitting with the jury, I would question their reasons for doing so. Simple as that. To me, it’s nothing more than semantics.

          • Craig on 12/07/2010 at 2:09 PM

            Will they even make it as far as the witness stand next October or will it just be made clear to the jury they simply refuse to testify? There’s nothing to compel them to actually take the stand is there?

            • Bruce on 12/07/2010 at 5:00 PM

              Craig:

              I have never been faced with this situation in any of my cases, but everything I have read and heard indicates to me that taking the 5th on the stand at trial is a question by question process, since many questions won’t necessarily raise, prompt or involve the 5th.

              As defendants, The Swann 3 have to take the stand if called by the plaintiff’s counsel to do so in the plaintiff’s case in chief.

              Here we can be sure that each will be called by plaintiff’s counsel in plaintiff’s case in chief, and plaintiff’s counsel will get them to continually raise the 5th Amendment claims, so he or she has a very good record, and can then make a big deal of their refusing to answer those questions, with adverse inferences, etc., in closing arguments to the jury.

              If they refuse to take the stand when called by the plaintiff’s counsel, or refuse to answer what the judge determines to be non-5th Amendment questions, then the issue of sanctions for violating court orders come in…

              …including the ultimate sanction of a default judgment, and if so, the trial magically changes on the spot to one simply determining the proper actual monetary damages to which Mrs. Wone and her attorneys can convince the jury.

              It is my thought that if this default judgment happens, the judge would still allow the defendants’ counsels to cross-examine damage witnesses, put up possible witnesses going to damages of their own, and do closing arguments as to damages only.

              Next up?

              Who thinks that whatever the judge rules on the current motion as to Ward’s dep that this dep is going to be a sweet love song when it reconvenes?

              The defense will raise 5th Amendment objections to questions that don’t (in the plaintiff’s counsel’s eyes or our’s) trigger the objection. So Ward will not answer the actual questions asked, other than the most basic.

              So, what can happen when the Ward dep reconvenes?:

              (1) Will they all be calling the judge again, stopping the dep until the judge can give more guidance on what questions properly trigger the objection?

              (2) Will the judge suggest this week that the deps of defendants take place at the court house so she can be immediately available to rule upon or determine challenged 5th Amendment objections?

              (3) Will the dep proceed with its up to 7 hours limit with essentially a vacant record except for objections, and the plaintiff’s counsel will have to file another motion to compel answers to all the preserved questions?

              (4) Or will the judge issue orders in the mean time on the other motions before the court which could influence the dep?

              The defense would probably like to delay any depositions and further discovery, but push for rulings on pending motions.

              If the judge grants the motion to dismiss or SJ motion, it would surely change the posture of the case and change the relevancy of questions at any deps if limited to the one count left. If no criminal charges could apply to after-murder activities of the defendants, the 5th Amendment objections may not even be available to the defendants.

              Which also makes me wonder if this week we might hear some actual rulings (or at least get some ruling dates) on these pending motions.

              • Bruce on 12/07/2010 at 5:07 PM

                Sixth paragraph down, I have an awkward phrase:

                “…. ,put up possible witnesses going to damages of their own,….”

                Defendants have no damages. What I meant is that the defense might have witnesses to try to combat Mrs. Wone’s claims for damages, such as an economist, etc.

                • Bruce on 12/07/2010 at 5:08 PM

                  Course, I do realize that this last post assumes that someone would actually make it to the 6th paragraph :)

              • Rich on 12/07/2010 at 9:50 PM

                I think we’re going to see quite a firm position taken by the Judge and all game playing and legal manuevering will cease because she will not accommodate any more posturing from either side.

                This Judge will play for keeps.

                Just Watch.

  2. Gloria on 12/06/2010 at 1:28 PM

    It appears to me that the three legal teams decided (or defaulted) that Dylan Ward’s defense (aka Dr. Ward’s money) would be the “point” or the stalking horse for the legal maneuvering around invoking (without voicing) Fifth Amendment rights. It does not appear that the insurance company’s lawyers, representing Joe and Victor, are putting in or billing for the hours to pursue this legal strategy. Earlier, our in-the-know editors wrote that Dylan’s attorney in the criminal trial (Schertler, repeating in the civil case) appeared to be the lead attorney, setting the overall legal strategy for the three sets of attorneys. If so, it appears he (or his firm) is front and center on this Fifth Amendment strategem.

    Although I hate these legal technicalities (sometimes yearning for a Star Chamber for this case), I have been very impressed with him. He is not a hack, intent on piling up billable hours by chasing vacuous technicalities. And Dylan, with his limited earning potential and freelance business model, seems the least likely of the three defendants to need to delay the trial on the basis of staving off a possible wage garnishment penalty.

    I was very curious to know how the three legal teams, each representing one defendant, interacted in the criminal case but am even more curious about the relationship among the three firms in the civil case, where I presume the DC firm (representing Ward) has no prior colleagial or friendship history with the two Maryland legal firms (representing homeowners Price and Zaborsky).

    Also, picky point: The Superior Court’s Order mentions that the new guy on the Wone team, Charles Kitchen, was not sent the order via the court’s efiling system because he’s not registered on it (Case File Xpress). Yet he is not listed as one of the attorneys being sent the Order via postal mail. You can be sure that Covington has gotten him registered (or has showed the Court their error).

    • AnnaZed on 12/06/2010 at 2:33 PM

      Gloria, as always I am grateful for your insight, analysis and excellent memory! Thanks.

      This reminded me though:

      “… Dylan, with his limited earning potential and freelance business model, seems the least likely of the three defendants to need to delay the trial on the basis of staving off a possible wage garnishment penalty.”

      That though in the short term this is certainly true I am pretty sure that the Ward family involvement and its attendant considerable expense must in part be a effort to protect Dylan’s future benefit from a large monetary potential inheritance or maybe they simply think that a negative civil judgment might act as a trigger to commence a murder indictment and must be battled back for that reason alone.

      In addition I believe that Ward attacked and murdered Robert, acting alone or with a confederate who fled and the others have covered for him.

      • CDinDC (Boycott BP) on 12/06/2010 at 2:46 PM

        This makes me wonder…..since Papa Ward is paying for Baby Ward’s defense, could Papa Ward be liable in any way for damages (if the Wone estate wins the lawsuit)?

        • Bea on 12/06/2010 at 3:29 PM

          I don’t think so, CD – Dyl was on paper an adult man living away from his father. But this is all very intriguing, as to why Dyl’s Dad is doing the heavy lifting on the defense payment wise (there may be an agreement where the insurance pays a sizeable portion to avoid impropriety – often the insureds want outside counsel not paid by the insurance companies for obvious conflict of interest reason).

          But I’m curious just how wealthy the good doctor is, and how much ‘inheritance’ would be left over for his eldest son once the savings are divided by 5 sons (or is it 4?) – usually the expenses during lifetime come out of the share given upon death, so I don’t know if Dyl’s brothers are going to be screwed or not.

          • She did it on 12/06/2010 at 9:51 PM

            I would not be the least bit surprised if our sometimes blue Michael the gay sensual masseur was able to secure some type of liability coverage on Ma’am’s homeowner’s policy (perhaps a defense only, with a reservation of rights on liability?); either as a resident, or an additional insured or some similar endorsement. In which case, the wealthy doctor may have splurged for the delicious and talented Spag’s representation at the deposition only (perhaps to make our diplomat less anxious); yet perhaps other, more modestly priced, insurance counsel will cover the some of the other deps on Dillian’s behalf – yes, you Ms. Morgan and my favorite interior designer.

            With respect to Dyl’s brothers being screwed (or not), my heart says it is very possible; though I don’t think we are on the same page, Bea. Pottery? Really?

            • Bruce on 12/06/2010 at 10:47 PM

              Wow SDI:

              We understand that “…our sometimes blue Michael the gay sensual masseur…” = Dylan.

              And we understand that “Ma’am”
              = Joe, right?

              But what are the other hidden codes?

              Actually, I agree with you on the insurance bitness.

              • susan on 12/06/2010 at 11:31 PM

                Would the “other, more modestly priced counsel” be Spooner? His (Spooner and Much) website has the tagline “*Law is Complex. We know how to make it work for YOU.” Does he mean, “Law is complex. We know how to make it more complex for you”?

                Maybe that is the Spag’s tag.

                He (Spooner) and Heather Nelson (for Price) seem to be out of their usual jurisdictions. Does HN represent the insurance agency? I note in her bio that she studied Shakespeare at Columbia. Perhaps she can be called upon at the trial stage to explain that stabbed Shakespeare scene from the New Yorker and the similarity btw the illustration therein, as displayed on LDW’s floor the night of Aug. 2 and RW as he was found stabbed in a nearby room.

                • Bruce on 12/07/2010 at 12:37 AM

                  Perhaps, Susan:

                  I would like nothing more than for Heather Nelson to explain that whole Shakespeare/New Yorker thing for me.

                  Seems too eerie for me to think it is just a coincidence.

                  If it had an unconscious effect, well that seems too eerie for me too.

                  Yet, what does it mean?

                  Did Dyl alone or with other housemates decide to play “Let’s re-inact scences in photographs or illustrations in the New Yorker?”

                  Did they do this with each weekly delivery of the magazine?

                  And if this murder was somehow tied in any way to that New Yorker, why wasn’t the first thing the Swann 1,2 and/or 3
                  disposed of when cleaning the house immediately after the murder?

                  • susan on 12/07/2010 at 12:59 AM

                    Hi Bruce,

                    I don’t know. It’s one of the many unusual coincidences and oddities of that evening. The door conveniently unlocked, the downstairs resident conveniently staying away that evening, the murder taking place conveniently after RW arrived in a home full of a self-proclaimed family that remained unscathed. A clean murder room, the “intruder” only heard on the way out, no one hearing footsteps on the old, creaky wooden floor, etc., etc., etc.

                    There was only so much time I suppose for whoever murdered RW to remove certain evidence. Along with that magazine being a mystery is the reason LDW went back into his room when the police and EMT arrived. I’d think that would be the time to not retreat. Then again, why sit on a couch in another room “worried” that there was an intruder in the house and not barricaded behind closed doors. So many questions.

                    • Bruce on 12/07/2010 at 10:19 AM

                      Susan:

                      Well put!

                      Those questions and many more are at the heart of the name of this blog.

              • Craig on 12/07/2010 at 7:37 AM

                Bruce: Ma’am = Zaborsky. 911 dispatcher mistook him for a woman on the call and referred to him as “Ma’am.” Interior designer = Scott Hixson, Swann Street neighbor/witness/F Buddy (?) who testified at the trial.

                Clio: Good catch on the misspelling of Swann. So obvious, yet I totally missed it. Morrison’s was a good guess. The pic is of the Georgia Avenue Scholl’s Cafeteria in DC, circa 1946.

                • gertiestn on 12/07/2010 at 9:10 AM

                  Aha! “Scholl’s,” I said to myself when I saw that photo.

                  I still miss Scholl’s.

                • Bruce on 12/07/2010 at 10:15 AM

                  Thanks, Craig, for the correction and further codes for my decoder ring.

                  Boy, I certainly got “Ma’am” wrong. Should know better. Sleeping at the wheel.

            • Clio on 12/07/2010 at 9:20 AM

              Croquet, SDI, came actually before pottery in one brother’s pursuits!

              Poor Needham and Di, that’s all one can say!

              • She did it on 12/07/2010 at 7:04 PM

                So poor; yet so rich. The Countess taught me that money can’t buy you class; my heart tells that apparently money can’t buy effective parenting either. Elegance is learned. Love to all, especially Craig. I will be waiting patiently for your update tomorrow.

                • Bruce on 12/07/2010 at 8:24 PM

                  I do find it interesting that many seem to assume that le pere de Dyl is an unlimited ATM machine, when it comes to Lil Dyl’s support and defense.

                  I’m sure as a successful doctor he is very well off, but with a number of children supported, where do we get anything to assume the Midas touch?

                  We don’t know if there is old money in the family, or not.

                  We don’t know if Dyl’s dad was supporting him in any way before the murder, right?

                  And we don’t know if an insurance company could be lurking or involved in some manner with the defense for Dyl, as SDI suggested, and to which I agree as being a worthy speculation.

                  Poor Little Rich Girl, Dyl may be.

                  But then, maybe not.

                  • Clio on 12/07/2010 at 10:31 PM

                    Bumblebee tuna probably had never tasted so good to Mr. Ward, who (in his mid-late 30s) still called his parents first when he got into hot water.

                    • susan on 12/07/2010 at 11:07 PM

                      I missed your post Clio!

                      Bruce, thanks for your posts about the 5th and the possible outcomes.

                  • susan on 12/07/2010 at 11:02 PM

                    Bruce,

                    You should Really, Really go back and read the old posts. You wrote “where do we get the assumption…”

                    I didn’t write the above posts, but I would say that rather than making assumptions, the above posters have read what I’ve read about the W’s “old” $ connection.

                    the dark than the posters.

                    Way back, after a few posts, AnnaZed posted back that I should do some background reading. She was right. It was good advice. If you do the same, you will learn things like “Ma’am” is not J. Price, and that LD’s family apparently has some “old” money connections. There are many many posts with “Ma’am” references. You’ll also learn more about LD’s fam., etc. I’d suggest that you go “fish”ing on this site.

                    • susan on 12/07/2010 at 11:05 PM

                      Please excuse the broken sentences in the above post. When the space to type gets thin so does the quality of my posts! (Excuses, excuses!)

        • Bruce on 12/07/2010 at 10:31 AM

          Hi CD:

          Despite the attempts of the hard right to try, in effect, to transmit responsibility upon those representing, or supporting the representation of, Guantanamo prisoners, no liability applies to those who pay for, or support, the defense of someone in criminal or civil courts in the US, thank God. Can’t speak for other countries.

          Imagine an extreme: Grandma, stricken with arthritis and in her late 80s, uses her social security and slim savings to try to get her son a defense in a civil case asking him for millions, or a criminal case where he could face life in prison.

          Kind of unfair to poor old grandma, isn’t it, to assess damages against her or to throw her into the prison cell for her adult son’s sins, just for helping him with her money to get a defense?

  3. Gloria on 12/06/2010 at 1:48 PM

    I may as well add here the following, not knowing where else to place it on the thread. I attended the first public hearing with Judge Hedges presiding — the one with the trash talking in the hallway. The only searing memory for me from inside the courtroom was the Judge’s quick and repeated retort to defense counsels’ strategems, that she had available to her to “compel” testimony. Call it my women’s intuition, but I felt she was putting down a marker right then and there as to what she could and would do, if it came to it. Apparently, the defense lawyers (all male) were not as impressed with her firmness, no nonsense retort, as they tossed around legal threats. “We could do x.” “But I can compel.”

    • Craig on 12/06/2010 at 2:11 PM

      Thanks for the recall Gloria. Maybe we need to start getting transcripts for these status hearings. And who knows how many more will be scheduled.

      • Doug on 12/06/2010 at 2:41 PM

        Transcripts: yes. We’ll work on that.

        • Rich on 12/06/2010 at 9:09 PM

          Count on plenty more status hearings before trial.

          As for transcripts, plan on 40 pages per hour at $6.06 per page if you want it next day. Or, if you’re willing to wait 30 days, which is really 60 days for DC Superior Court, plan on $3.65 per page.

          It can be a very expensive proposition.

  4. Clio on 12/06/2010 at 10:03 PM

    What an appropriate photo that that is for the routine, impersonal, cafeteria-style lottery that is our “justice” system! Perhaps, Moultrie should be renamed Morrison’s, after all. For her own sake, I just hope Brook does not have lunch-lady arms.

    Why doesn’t the Court have the current addresses of Joe and Victor? And, why did the Court functionaries incorrectly spell “Swann?” Or, is this another defense trick to delay, delay, delay? Sigh!

  5. susan on 12/08/2010 at 1:16 AM

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Purpose of this Site

On August 2nd, 2006, Washington attorney Robert E. Wone was murdered at 1509 Swann Street. Over two years passed before any criminal charges were filed - and then only conspiracy, obstruction of justice and crime scene tampering charges were brought against the Swann Street housemates, all present in the home on the night of the murder: Joe Price, Dylan Ward and Victor Zaborsky.

On May 17, 2010, a DC Superior Court trial got underway and all three defendants were all acquitted in that bench trial on those pending charges.

Nearly four years later, very little seems clear about what happened that night and who murdered Robert Wone. A cloud of suspicion remains over the Swann Street defendants who have denied any involvement in the murder of their friend or in the alleged cover up.

Judge Lynn Leibovitz found a moral certainty in their collective guilt, but not evidentiary certainty. Civil proceedings in a wrongful death suit filed by Robert's family is the next chapter in this tragic story.

We continue to work together seeking answers to the mystery of Robert Wone's murder and in finding justice for his memory and legacy.

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