Cold Comfort

Plaintiffs Win the Day at Status Hearing

Frigid weather and long, long lines greeted the Court Set at Moultrie on Wednesday morning.  Jurors, attorneys, defendants, media and even judges braved the cold and stood in lines that snaked around the building, some waiting nearly an hour just to make it to security and the mags.

Brother can you spare a Starbucks?The long lines are due in part to enhanced courthouse security efforts that were first reported during last month’s Levy trial and according to one AUSA, all the judges inside are aware and their schedules are adjusted accordingly to accommodate.

The delays also impacted Judge Brook Hedge’s schedule.  Waylaid attorneys slowly filtered into her courtroom and the hearing, set for 10am, began about a half hour late. 

But Hedge plowed through the packed agenda and just over an hour later, the retiring judge left a lasting impact on the Wone case and 2011 trial.

Wone attorney Patrick Regan and the Oregon based Ward counsel Ralph Spooner were the stragglers yesterday morning, standing on line and updating their colleagues who were already inside the warm confines of courtroom 517, by BlackBerry.

Plaintiff attorney Ben Razi and Ward co-counsel and familiar face Robert Spagnoletti, kicked off the action with oral arguments on the 5th Amendment issue.  Razi conceded a key point to the defense regarding DC Civil Rule 30(d),that allows counsel to speak on behalf of their clients, but only up to a point.  “If they want to invoke, that’s their prerogative,” Razi said, adding that there was still a need to get “proper 5th Amendment invocations.”

Hedge, signaling that her mind was probably made up on this issue interjected quickly and said she’s read all the documents submitted by counsel from both teams.   Noting the different “textures” of the deposition questions – how long did you know Robert, ownership of the cutlery set, and knowledge of the 1509 Swann alarm system, “…raise interesting 5th Amendment issues to be resolved.”

Spagnoletti, while never once revealing the underlying strategy to his 5th play, admitted his statements in the November 10 Ward depo were “carefully phrased.”  Hedge drilled down in particular onto page 15 of that transcript and remarked that, “…nothing is in the record of the witness invoking… counsel prevented him from answering.”  Spagnoletti maintained that DC civil rules allow for how he and Ward handled the depo but Hedge cut him off saying, “I don’t agree.”

Hedge then led a refresher course in criminal v. civil and the 5th and noted that adverse inferences can’t be drawn by a jury in the former but can in the latter.  Adding that in a civil, unlike a criminal case where a witness can decline to testify, “Plaintiffs are only left with the deposition and the jury is left with that record and that opportunity to see and view him… When only an attorney and not the witness make the claim, it makes for a very different proceeding.”

While Hedge was OK with attorneys making a claim of privilege, she insisted that must be followed by actual acceptance by the deponent of counsel instructions/advice, “…he has to answer personally on a question by question basis.”  She went on to say that case law regarding this issue is “not on point… the concept running through this is that the witness has a right to change his mind and must take the affirmative step.”

And showing concern for the Brave New Media World, Hedge warned counsel not to share anything until the issue is made public and brought before the Court. “I don’t want to see anything…on youtube… Discovery is not a public record and shouldn’t be leaked or divulged.”

Hedge admitted potential prejudicial blowback from the jury seeing tapes of a witness taking the 5th on over 400 questions posed and suggested maybe five get played to the jury and stipulations cover the remainder.  “Massive deletions,” she assumed, may be in order.  The simple upshot from this is that in the coming depos, the defendants will have to personally state that they are declining to answer the questions thrown at them.

At 10:45am, Regan finally arrived and apologized for his tardiness.  He was stuck in line for 50 minutes behind Judge Wright, Superior Court’s Acting Chief Judge.  Hedge said the long lines have gotten better lately, now averaging around fifteen minutes and compounding that was a recent power outage that struck the courthouse.

 She said that the Court wanted to erect plaza entrance overhangs to protect visitors and staff from the elements, “But the Architecture Review Board said no.” DC Superior Court was overruled.  Good luck visitors, with the forecasted cold rain and snow.

Zaborsky counsel Sean Edwards spoke first on the motion to restrain counsel from speaking to the media. Although officially referred to as a motion to enjoin, the shorthand term used here, gag order, was adopted today for the purposes of arguments.  “This is where the 6th Amendment collides with the 1st Amendment,” he said.  Hedge cut him short and asked if the criminal case defense counsel had made comments about the pending civil.  She knew the answer was yes, but Edwards said he was not aware of the “panoply of statements made.”

Edwards mentioned that Civil Rule 203 and DC Bar 3.6 were not sufficiently muscular and that the proposed gag pertained to the defense as well. “3.6 doesn’t remedy if inflammatory or prejudicial statements reach the jury pool… You can’t unring the bell and disciplining an attorney (after the fact) doesn’t help.”

Regan, the one who set off this skirmish was next to speak. “My comments teed up this issue and I never intended to taint the jury pool.  In my mind, my comments were less prejudicial than Judge Leibovitz’ decision; not nearly as prejudicial as her 55 pages regarding the culpability of the defendants.”  He tempered that continued stridency with a few words of contrition,” I apologize if I offended the Court… but the gag order is unnecessary.”

Zaborsky co-counsel Frank Daly argued next and wanted to hit the reset button.  “This trial is a fresh start.  What came before shouldn’t set the precedent for these proceedings… These comments help no one… What happened before doesn’t matter… Keep this neutral, keep this insular.”

Next, on behalf of the media intervenors, Ober Kaler’s Chip English, argued that 203 and 3.6 more than suffice, that the defense’s 6th claims don’t apply and there was no right, and that he’d be “shocked” if any depo material was leaked.  English said that 203 can’t “overcome the 1st amendment right,” and that the defense was overreaching with the gag order. “They’re going to the end of the line on just one comment.” 

Hedge reminded them of 203: Don’t speak to credibility of witnesses, motives of parties or characterization of testimony, though she admitted, “Easier said than done.”  She said Regan’s tough talk was “not needed,” and that this case was preceded by an “extensive history” of coverage.  She noted Keith Alexander’s WaPo piece on the September 16 status and the comments it generated (attached as an exhibit by the defense). “This is a different age in which we’re litigating.”

By denying the gag order, Hedge mooted the motion to intervene.  She “expects strict compliance and adherence (to the rules)… I don’t want the case tried in the press.  It’s fair to provide the media filings and explain in neutral terms, not sound bytes, with substance, not characterizations.  Keep it neutral.  You are not advocates for the press.  Bite your tongues.  In that regard you serve as officers of the Court.  Resist temptation to go beyond the facts.”  She even quoted Dragnet’s Jack Webb, “Just the facts ma’am.”  All counsel agreed.

Al 11am the motion to dismiss came up and Brett Buckwalter, on behalf of defendant Joe Price, argued that Holmes and Chappelle were on their side and the one year cause of action trigger for SOL was appropriate. 

Hedge wasn’t buying it and asked him what did Mrs. Wone know in August of 2007 that she didn’t know in August 2006?  In other words, what did she know and when did she know it?  Buckwalter said that reports of the alleged criminal activities were in the press.  “Do you believe everything you read in the press?” she asked.  She then wanted to know where was the unfairness to the defendants.  “Their lives were put on hold,” said counsel.  Hedge’s follow up was blunt. “You were the ones that asked for the (February 2009) stay.  “You’re the one who asked to put their lives on hold.” 

Covington’s Ben Razi was next up and he characterized the defense motion as “…an aggressive attempt to reshape DC SOL law to never apply tolling to unsolved murder cases.”  Fraudulent concealment was the real issue and that the defendants actions were “extensive, textured, rich oral statements… of hiding evidence, staging the crime scene and an elaborate effort to conceal.”  He added that SOL tolling for that is “routinely accepted.”

Razi then rattled off a tick list of the major factual disputes and why dismissal or summary judgment is not warranted.  “Defendants lied to Kathy Wone’s face…point blank.”  The MPD transcript from the night of the murder, attached to the defense exhibit, didn’t surface until the criminal trial.  He said plaintiffs did not have access to confidential grand jury investigations.  “The transcript has no bearing.”

Razi said that the August 2007, one year anniversary press conference that featured Mrs. Wone, Eric Holder and other supporters, was not relevant and at that point they still knew very little and that nothing was really known until late October 2008 when the Ward affidavit hit. “You forgot what a bombshell this affidavit was,” he said and that according to Rule 11, a good faith basis was needed to file a complaint.

No blood on the towel?  Razi said that was “a specific lie the plaintiffs became aware of,” and that allegation that Robert was showered, redressed and placed back into bed, “…was inconsistent with the intruder theory they told Mrs. Wone and that they (the defendants) spread across the city.” 

Not until late 2008 did plaintiffs have reason to disbelieve the housemates and subsequently they filed Razi said..

Razi mentioned that the needle puncture wounds found on Robert were initially thought to have been the result of medical intervention, and that only later did they learn of a possible injections.  It was “wild to suggest” that Mrs. Wone knew more ahead of the affidavit’s filing. “We allege these guys destroyed evidence… and had Robert survived he would’ve had claims.”

In from Salem, Oregon, for his debut in this case, Ward co-counsel Ralph Spooner warned Hedge not to be too quick to dismiss Chappelle, that it’s the law in DC.  “The existence of a cause of action was known… the stabbing gave rise to it… The fact that identities are not known doesn’t toll SOL.”  Hedge asked how the plaintiffs could’ve filed any earlier.  Spooner replied that it was possible – the defendants were the only ones in the house or they could’ve done a John Doe. “The plaintiffs did neither,” he said. 

Razi reminded Hedge that Chappelle was from 1982 and was superseded by Diamond.  What was at stake was not concealment of identification but one of wrong doing.  Buckwalter disagreed on Diamond and Hedge shot back, “Since when do we file claims based on something reported in the press?”  The Levy trial shows problems with a rush to judgment and filing suits.  The facts disputed are material issues… You can’t file suits in vapor.”  Hedge said “the plaintiffs accurately and satisfactorily pled” and the motion was denied.  And by 1145am it was over.

Media attending yesterday’s hearing included the Post’s Keith Alexander, Legal Times’ Mike Scarcella and the Examiner’s Emily Babay. Alexander has this on the pending judge calendar swap.  Is this the end of Hedge?  More on this development in the coming days.

“Wednesday’s proceedings in the Wone case will probably be the last for Hedge, who is retiring at the end of the year. Judge Michael L. Rankin, who currently oversees felony trials, will assume Hedge’s 2011 cases.”

Not So Soto Voce

During the summer criminal trial in Leibovitz’ jammed courtroom, there was always a protective screen of 50 other people that allowed for the most discrete whispering in the gallery during the proceedings.  Not so in a near-empty courtroom for a status hearing.

Your intrepid reporter’s barely audible, close order whispers with a colleague were notice by Judge Hedge yesterday morning during the SOL arguments.  She politely said, “No talking in the courtroom.”  Or so I was later told.  Your Chatty-Cathy reporter, still too busy whispering, didn’t hear that first warning which led Hedge to repeat the admonishment.

Apologies to the Court, Your Honor.

28 comments for “Cold Comfort

  1. Rich
    12/09/2010 at 11:24 AM

    With the Cold Weather and all the Delays, Glad I missed it.

    It seems all the decsion making was made before 12Noon.

    Was it a quiet afternoon?

  2. Rich
    12/09/2010 at 3:29 PM

    Readers of WMRW should read the stories the Editors have referenced from other media.

    In The Washington Post, Keith Alexander discusses Hedge’s retirement and states:

    “Judge Michael L. Rankin, who currently oversees felony trials, will assume Hedge’s 2011 cases.”

    • Rich
      12/09/2010 at 6:15 PM

      Judge Rankin and his wife, have both decided upon some fairly large celebrated cases over the course of their tenure.

      He’s up for retirement shortly.

      Obviously, not in 2011. 🙂

      But, he may go out on Robert Wone.

    • denton
      12/09/2010 at 8:45 PM
      • Rich
        12/09/2010 at 9:37 PM

        Out of undergrad in 1967.

        Yep, as I thought earlier, going to retire any moment now. Definitiely after Robert Wone.

        Probably in 2012.

        Thanks for the Bio, Denton.

        • denton
          12/15/2010 at 11:32 AM

          Rich,

          Not to confuse the bloggers/readers or WaPo’s lead. I also heard that there are 3 candidates on their way and one of them will be filling in the vacancy.

          Denton

          • Rich
            12/15/2010 at 12:02 PM

            Dear Denton:

            Glad I just logged on.

            My sources at Moultrie and on the plaintiff side have confirmed the same news byte.

            They even floated the names of the three candidates. Some scare me.

      • denton
        01/01/2011 at 9:43 PM

        Rich – WaPo was correct!

        As 2010 year was ended, gone was Judge Brook Hedge (currently is designated a Senior Judge – until it is confirmed by Mr. President). Meet the new Judge who will be presiding over the Wone’s case and trial – Judge Michael L. Rankin, and it was confirmed.

        • Rich
          01/01/2011 at 11:17 PM

          Denton:

          I know Craig said earlier on this page, “Cold Comfort,” that Rankin was not a, “Done Deal.”

          But, as I said earlier, from all of my sources on the plaitiff and courthouese side, it was pretty clear that the deal was done going inot December.

          Glad to hear The Post confirmed it.

          Not a great deal for the defendants. Rankin is fair, but, a hard ass. He will not entertain any theatrics.

          Thanks, Denton.

  3. Anon. in Arlington
    12/09/2010 at 5:20 PM

    Thanks for standing in the cold to report back!

  4. boofoc
    12/09/2010 at 7:07 PM

    Even here in FL with our “cold spell” (65 degrees F today!), we can appreciate your having braved the DC cold to report to us about the goings on at Moultrie; thanks to our Editors. Judge Hedge seems from all reports to indeed be a wise jurist. Is it true that she will not preside at the Wone civil trial, despite her announcement that she intends to elect “senior status”? Not sure I understand DC’s musical chairs policy.

  5. boofoc
    12/09/2010 at 7:29 PM

    If it turns out that Judge Michael Rankin is designated to relieve Judge Hedge of her handling of the Wone trial, it’s interesting to me that he “sits by Mayoral designation as a voting member of the DC Police Officer Training Standards Board.” Seems that board needs to be more effective training some of its homicide officers, huh? But then, lets keep an open mind about that for now

  6. Grizz
    12/09/2010 at 8:05 PM

    Good for Razi and good for Judge Brook! Too bad she’s not in for the duration, but her decisions count. All in all, a good (if cold) day in court! Let’s celebrate the wins along the way….

  7. Rick
    12/09/2010 at 8:53 PM

    Were any of the 3 defendants present in court? I know several of our posters felt JP would be sitting with the lawyers.

    • Rich
      12/09/2010 at 9:34 PM

      Craig reported earlier the Swann 3 were not in the courtroom.

  8. Nelly
    12/09/2010 at 9:03 PM

    Thank you for your continued coverage of the court proceedings.

  9. Clio
    12/09/2010 at 10:13 PM

    Huzzah for Brook! Both she and Lynn apparently run an efficient ship, but will the plaintiff’s case this time yield more than “cold comfort?” Running the table should shake Covington out of these procedural doldrums and into the real content of the case. Yet, Judge (and not Uncle or masseur) Michael must be better than Fred, Lynn’s bumbling predecessor: anyone would be!

    I guess Dyl’s massage hobby apparently took precedence over appearing in court. One cannot do too many outcalls! Or, perhaps the defendants never cleared the more intrusive security procedures — there, or at the airport. Their absence did seem strange: all day yesterday, I pined for some ShakyCam updates on Joe’s weight gain or Dyl’s Boehner-like tan. But, the Three have missed at least one previous status hearing in the civil trial, right?

    • Rich
      12/09/2010 at 10:45 PM

      There is absolutely no reason for The Swann 3 to go to any hearing until their trial.

      They are ahead of the curve if they remain absent at all times.

      Conversely, Kathy Wone scored huge points for being present with family.

      The sympathy vote prevailed.

    • Craig
      12/10/2010 at 10:18 AM

      Clio: WaPo’s Keith Alexander had the story behind the security story about a month ago during the Levy trial. He also had the Rankin scoop on Wednesday, but from what we’re hearing regarding a new judge helming the Wone case, it’s not a done deal. Yet.

      • Clio
        12/11/2010 at 6:09 PM

        As you have pointed out before, Craig, it looks like Mr. Alexander is not asleep at the wheel after all.

        One does get the continuing impression, however, that Dyl must have really pissed off Keith: note to self, do not provoke battles with reporters that you cannot win.

      • Clio
        12/12/2010 at 12:21 AM

        BTW, Craig, I want that sky blue hoodie worn by that random court employee or visitor in the photo above: who knew that Moultrie would be known for its winter fashions!

  10. Rich
    12/09/2010 at 11:21 PM

    Kinda Fascinating!

    NBC 4 just aired moments ago, a detailed story on the Robert Wone case. NBC 4 has been uncharacterisitcially uiet on the case since the criminal verdict. I even talked to thier lead reporter on the case, Pat Collins, who was somewhat in the dark on everything that is currently happening.

    The spry detailed this history of the case with loads of photos of The Swann 3 and film of Kathy Wone. As for the Civil trial, they simply said, “The judge refused to dismiss the lawsuit on statute of limitations grounds Wednesday and also refused to impose a gag order.” That’s it.

    Maybe, a slow news day.

  11. Michael
    12/10/2010 at 1:43 PM

    Couldn’t help but notice that Bruce has yet to comment on this.

  12. Bruce
    12/10/2010 at 3:42 PM

    Well, Michael, we all know I am a man of little words 🙂

    My comments regarding this are all under the “Running the Table” article, before “Cold Comfort.”

    It is a little confusing because if you go to the home page of the blog, there is no “Read More” button at the bottom of the “Running the Table” article. However, if you just click the title “Running the Table” it should bring up the article and all comments (I think there are over 40). Don’t mean to say this confused you, but I think it could confuse some, who might assume that if there is no “Read More” box to click that there are no comments, or it is a no-comments type of post.

    • Bruce
      12/13/2010 at 10:06 PM

      Actually, Michael’s post got me to re-read “Cold Comfort,” and guess what? I do have some comments.

      First of all, in terms of the motion to dismiss/summary judgment, it appears that the Judge was concerned about whether there was any “unfairness” to the defendants in the delayed filing of the lawsuit. Put in legal terms, she was really asking whether the defendants suffered any “prejudice.”

      I am not aware of prejudice to the defendants as being of any importance or recognized as any type of relevant argument on a statute of limitations issue such as this one. You either filed on time or not, or there is a question of fact as to whether you filed on time or not.

      Whether the defendants were prejudiced is simply not relevant. Kind of wondering where that came from. To me that is very strange, and will likely make an odd record on appeal. Of course, an appellate court can just ignore that language in the record, because the real issue is whether there is a material question of fact on the issue, and the judge appeared to say that clearly there was.

      Second, as to the gag motion, the judge seemed to be very interested in stating her opinion that the criminal attorneys had said things about the civil trial. However, it is not whether someone says something, it is whether they say something that violates the rules.

      The rules allow attorneys to speak to the press generally. In my view, what Razi said in the court hallway clearly violated the rules. I may be wrong, but I don’t think that anyone has argued that the criminal defense attorneys said something about the civil trial that violated the rules. I think Zaborsky’s counsel was correct to try to get the judge to focus on the present case and present attorneys.

      Finally, also as to the gag motion, Razi’s argument to the judge that his comment in the court hallway was less prejudicial than the criminal judge’s opinion was cute, but not relevant, and kind of watered down his apology (if it really was one) to the court.

      What relevance to the proceedings could that have? The issue here was not about judges’ opinions, but what the civil attorneys can say. We are seeing some real slight of hand here by Razi & Co.

      In any event, I don’t disagree with the judge’s opinions on all the matters before her.

      I think it was reasonable for her to find that there were “material issues of fact” left unresolved, such that she could deny the motion to dismiss/summary judgment. As I have mentioned in past posts, we should expect a portion of Mrs. Wone’s deposition to be directed to the issues of what she knew, and when she knew them.

      It was reasonable for the judge, in my opinion, to deny the “gag” motion, although I expected her to come down harder on Razi for what he said in the courtroom. As Bea predicted, the judge just “for the record” told him to tone it down.

      And I think it was reasonable for the judge to rule as she did on the 5th issues. I do think it would have been wise to order that deps of the defendants take place at the courthouse, where she can be easily reached if there is a disagreement. I don’t expect that we are going to get much of any answers from the defendants at the deps, and we are just going to get more motions to compel.

      While I do think that the rulings were reasonable, although the reasoning may be a little stretched, as expressed by the judge, I do think that Mrs. Wone was lucky and had a very good day. And good for her. On the record of the motion to dismiss/summary judgment, a judge could have found on behalf of the defendants, and the motion itself was not frivolous in any way, as I see it, and this will obviously be an issue on appeal after the verdict against the defendants.

      All in all, the comments of the judge re prejudice, on the SOL motion, and as to comments by other attorneys not involved in the civil case, as to the gag motion, make me kind of wonder a little about her. Frankly, makes me wonder if she may be a B+ judge, rather than an A+ judge. But, hey, I skated through college and law school on some grades worse than that, so what the heck?

      Cases are a culmination of a lot of battles, with the biggest being the trial itself, of course.

      Of course, everything in here is just my opinion, and I am sure that reasoned people (and posters) can disagree!

      Mrs. Wone and her attorneys have won some well fought battles, and good for them.

      • Clio
        12/13/2010 at 10:26 PM

        What is your grading rubric for a B+ judge, Bruce? Just because she did not rule once for the defense?

        I would give her an A for dispatch and clarity on her first major test in this course, although we have not even made it to midterm yet.

        And, dear, only C+ judges and lawyers get to make the Supremes: for instance, see David Souter and Clarence Thomas, the choice candidates of Bush the Elder.

        • Bruce
          12/13/2010 at 11:13 PM

          Yes, dear Clio, muse on the loose:

          You figured it out. The grading system was based simply on whether the judge ruled for the defense or not.

      • KiKi
        12/14/2010 at 2:06 PM

        Hi bruce. I was actually similarly confused by the no prejudice to the defendants ruling. I thought I was missing something when i read that in the post. It seemed almost as if she was making a policy argument for SOLs generally and not looking at the specifics of this case or the law. Weird. But I think we both know that judges often find the most beautiful song to be that of their own pontificating. So I agree with you that while it is likely the defense attorneys on appeal will plaster that quote across their briefs, the appeals court is likely to ignore it and decide on the merits.

        I will say this tho, if after KWs depo the defendants file another SJM based on the SOL, they should certainly address the misstatement of law. (I think I may start trying to write acronyms in every sentence of my legal briefs)

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