To Tell the Truth

Is long term memory really just a figment of the imagination?

Diane Ward was the only family member of the defendants to take the stand during the criminal trial last summer. 

Diane Ward leaving Moultrie

Dylan’s mother testified on the provenance of the “missing knife”, i.e., the knife that would have occupied the empty slot in the cutlery set box found in Dylan Ward’s bedroom.

There had been intense speculation regarding the whereabouts of the knife, given Dylan’s formal culinary education, and that the box was found stored in his bedroom, rather than more logically deployed as a utensil in the Swann Street kitchen.

Discussions with many courtroom observers elicited the response that Mrs. Ward was lying on the stand. Her testimony, tone, body language, etc., were in keeping with a mother trying to protect one of her offspring. 

 Her nervousness and weeping were completely understandable but many felt they had an air of theatrics. After all, her testimony could infuse additional doubt and keep her son free.

In looking at that sad day, a mother on the stand testifying on behalf of a son now publicly acknowledged as a “masseur” who dabbled in sadomasochism, perhaps the testimony was not false, but merely a mental fabrication of memories associated with the knife.

A study conducted by Cornell experimental psychologists Valerie Reyna and Charles Brainerd offers an interesting take on memory and recall.

Their publication, The Science of False Memory is available from many booksellers including Amazon.com. Memory researchers had already concluded there are two distinct types of memory: Verbatim, which allows us to recall what specifically happened at any given moment, and gist, which enables us to put the event in context and give it meaning.

From a news article titled “Total Recall…Or At Least the Gist” from the often thought provoking publication Miller-McCune:

“We were taught you extracted the gist from the verbatim memory,” recalled Reyna, an experimental psychologist and former senior research adviser to the U.S. Department of Education. “It was like husking an ear of corn. You threw away the husk, which was the verbatim, and you kept the gist, which was the kernel of meaning.” After years of research, though Reyna came to the conclusion that some of this theory was wrong.

After conducting numerous studies with her partner, psychologist Charles Brainerd, Reyna concluded that verbatim and gist memory are separate, parallel systems. So separate, in fact, that “there is some evidence” they occupy different sections of the brain. 

Reyna and Brainerd’s hypothesis, which they call “fuzzy trace theory,” explains how we can “remember” things that never really happened. Verbatim memories generally die away within a day or two, leaving only the gist memory, which records the event as we interpreted it.

“Under certain circumstances, this can produce a phenomenon Reyna and her colleagues refer to as “phantom recollection.” She calls this “a powerful form of false alarm” in which gist memory — designed to look for patterns and fill in perceived gaps —creates a vivid but illusory image in our mind. Mental snapshots soon fade; what lingers are our impressions of an occurrence, which are shaped by the meanings we attach to it. If you doubt it, ask Sen. Hillary Clinton, who is still the butt of jokes for her insistence she came under sniper fire at a Bosnian airport.”

“What she did (in misremembering the event) is very common, very ordinary,” Reyna insisted. “People assume motivation, but you don’t need it (to explain what she did). It happens to people every day. They think they’re recalling something accurately, but they’re not.”

Obviously there are significant implications when listening and interpreting testimony in the courtroom. According to Reyna, the good news is there are clues that indicate whether a witness is remembering a situation accurately. “There are things you can look for,” Reyna said. “There are circumstances that lend themselves more to accurate testimony…such as actually visiting the scene of the crime.”

The legal community has taken interest in this matter and the underlying studies. Judges are becoming more educated and Reyna recently authored a chapter in a handbook for lawyers.

We’ll never really know whether Diane Ward’s testimony reflected what actually transpired with the “missing knife” or if it was totally a figment of her imagination.  Even more interesting would be how Judge Lynn Leibovitz considered the testimony, if she considered it at all.

– Michael

35 comments for “To Tell the Truth

  1. Hoya Loya
    01/24/2011 at 11:19 AM

    My guess is not at all, given that the prosecution was unable to establish, even through its own experts, that the “missing knife” was the murder weapon, or even that it was a more likely muder weapon than the kitchen knife, which all experts opined could also be consistent with the wounds. She never needed to reach the issue of the knife’s whereabouts, so Mrs. Ward’s testimony was irrelevant.

    The only evidence that tended to point to the missing knife as the weapon was the observation by the Maryland ME that there were bruise marks around at least one of the wounds that would have been caused by the hilt of a shorter knife. But there was also expert testimony that the depth of the wound was hard to relate to the length of any given knife due to the epansion and contraction of the chest due to breathing.

    • Craig
      01/24/2011 at 12:35 PM

      Hoya: It makes a guy wonder what role the knife or knives may have in the civil trial, if any.

  2. AnnaZed
    01/24/2011 at 1:50 PM

    This whole knife thing just frustrates me so much because though (obviously) I’m not some sort of forensic knife wounds expert I see such considerable and observable difference between the incisions that I make in (for example) a pork loin with a long paring or “utility” knife ~ as the knife missing from the box is ~ and a curved bladed boning knife ~ as the knife purported to be the murder weapon is ~ that I really was surprised that the experts couldn’t be more definite about that. Frankly, I think that they fucked up a little there.

    • susan
      01/24/2011 at 7:34 PM

      Hi AZ,

      I recall in an early post around the time of the trial you mentioned that you had a set like the one LD had/has. Is that right? I recall your saying you have culinary experience, etc. Was the kitchen knife supposed to be “curved” etc.? With the kitchen knife wouldn’t the killer have had to stop short of using the full blade? I’m sure I’m forgetting a lot but I thought the forensic expert for the prosecution made a strong case for the likelihood of the knife being from the gift set, but protected himself by saying his mentor might disagree.

  3. Bea
    01/24/2011 at 2:51 PM

    I too wonder if the knife issue worked against the prosecution – sure seemed like a red herring given the inability of a single expert to say the knife on the nightstand was definitively NOT the knife. I was surprised, too, as it’s not easy to stab anything and NOT have the hilt hit the skin – but three time? But Judge Leibo wasn’t having it, not even the wiping of the blood on the knife. The photos sure looked to me to have a cloth imprint but she seemed to think Henry Lee’s explanation was satisfactory.

    I’m hoping for stronger testimony in the civil trial to build on the ME (who couldn’t be definitive but thought it would be a shorter blade) and to counteract Henry Lee’s suppositions. My issue with Lee is that he seems to be able to be “definitive” about things many experts are not.

    As for Diane Ward, I thought too that her testimony was iffy. She was NOT clear about the knife she allegedly kept (brought two, if I recall correctly) and had no reasonable explanation as to why. IF in fact that was the murder weapon, and not the one on the nightstand, I suspect the civil lawyers will do much more homework on establishing the knife, especially now that they know what Diane testified to and have her boxed into a position.

    • Hoya Loya
      01/25/2011 at 12:54 PM

      Bea:

      I know it’s been several months and things get fuzzy — but I rechecked the order and Judge L. actually discounted Lee’s testimony that the marks on the knife were made by Robert’s t-shirt and agreed that the knife blade had been wiped with a towel, likely by Joe, but could not determine Joe’s exact actions or intent in wiping the blade BARD. She noted that there was no evidence or expert testimony presented to show that the handle had also been wiped and that wiping the blade, but not the handle, “would have been of little value to someone trying to destroy evidence.”

      Agree that there needs to be much stronger expert testimony regarding the knife or knives at the civil trial. Should Razi & company decide to further pursue the “missing knife” theory, Diane is indeed “boxed in” by her earlier testimony and doubt that she would be treated with kid gloves this time around. However, my instinct would be to stick to the knife at hand — more time and effort showing that it had been tampered with and why might pay greater dividends than more speculation about the knife Dylan may or may not have had, which may or may not have been used and may or may not have vanished — unless of course, the knife turns up and is not one of those Diane brought with her from the west coast.

      • Clio
        01/25/2011 at 11:36 PM

        The knife at hand is so key, Hoya: what kind of murderer would perch it “just so” on the nightstand, as if it was a prop to be interpreted by Salvador Dali, or as if it was a sculpture deemed to be “art” by one of Dali’s Dadaist rivals — Marcel Duchamp, the notorious nonconformist who, in the 1910s, declared a urinal to be a work of art? Certainly not one who may have been a garden-variety DC burglar (enrolled in the night school at Montgomery College) such as, perhaps, Uncle Michael! Perhaps ones, though, who had been educated at research universities such as Culuket and Sparkly Cat? Hmmmm.

      • Bea
        01/26/2011 at 4:28 AM

        Thanks for the refresher, Hoya. I do recall frustration over why she thought that any blade-wiping (likely by Joe) had little value in destroying evidence. If it’s not “the” knife then putting blood ON the knife is quite damning. I go back and forth on the value of the extra knife theory – the evidence will have to be more solid if the plaintiffs don’t want the defendants confusing the jury that a “win” on the knife means more than it is – I’m with you on that. But it makes sense that the kitchen knife’s hilt would have left bruising (and who could plunge a knife in a man with such force three times and NOT reach the hilt?). If the kitchen knife was not the murder weapon, and it is sufficiently established, then it is powerful evidence.

        • Craig
          01/26/2011 at 10:22 AM

          Depending on how many knives are brought into play and introduced as evidence in the civil – Is how the jury may process the sometimes confusing and conflicting testimony part of the Cov and Regan formula?

          Judge Leibo, with years on the bench and a strong suit in med mal, was in a position to juggle and digest the disparate elements of the weapon(s) testimony, but can a jury of peers do the same?

          The knife/knives piece of the criminal trial was pretty complex and I wonder if Plaintiff counsel will steamline it for easier juror consumption.

          • Bill Orange
            01/26/2011 at 12:57 PM

            I think it was pretty convincing that the knife at the scene had been wiped down. My understanding of the judge’s opinion was that she wasn’t convinced BARD that the intent of wiping the knife had been malicious. I don’t think the plaintiffs should even bother trying to prove that there was a knife swap. They just need to show that Price tampered with the knife, and then let him invoke his fifth amendment rights when they ask him why he did so.

            • Hoya Loya
              01/26/2011 at 1:34 PM

              Bill O.:

              As indicated, that’s my instinct as well. I do think that Joe’s tampering was the one area where Judge L. had some wiggle room and could have found Joe guilty without being overturned on appeal. Just as she found that wiping only the blade would have little value to one intending to tamper, she could have found that removing the knife, wiping the blade and placing it “just so” and without leaving fingerprints on the handle could only have been done with the intent to tamper with the crime scene and evidence.

              If Razi & Regan stick to one knife, they can rely on the facts already established in the criminal trial (that Price admitted to removing and wiping the knife etc.) and concentrate on establishing a stronger case for tampering. If they decide to go for the Dylan’s knife theory, they need to prove not just that the kitchen knife was wiped, but that blood was wiped on the knife, rather than off, which strikes me as a very tricky proposition, even for the most talented expert. Plus establish that the knife was in the box, in the house, used to commit the crime, swapped out and disposed of or hidden.

              • Clio
                01/26/2011 at 9:55 PM

                Yes, Hoya, why would one wipe a knife off or with the victim’s blood, a knife that was not the murder weapon, while that close friend lay already dead? Was Joe or Dyl worried about dripping hard-to-remove stains on the hard wood floor? Why would anyone place it on the nightstand — for staging purposes and/or for helping the police to investigate red herrings? Joe’s priorities may have been just as, if not more, inappropriate as his receiving dress that evening, I am afraid.

  4. Clio
    01/24/2011 at 10:08 PM

    How exactly did Diane’s testimony have a theatrical air? Did wearing all black (with fabulous shoes) lend her an ascetic gravity not possessed (seemingly) by her bohemian son? Did one of Spag’s style consultants tell her which outfit to wear and which one not to wear?

    The knife or knives, to me, are the most mysterious components of this case. The knife perched just so on the nightstand, to me, is far more vaudevillian than either Mother Ward’s or Henry Lee’s testimonies. And, thus, who was reading about Shakespeare that night, again? Hmmmm. John Wilkes Booth, telegraph your office!

  5. 01/25/2011 at 1:08 AM

    yeah independent recollection can vary but when you have a printed docuement to support you

  6. She did it
    01/25/2011 at 8:40 PM

    She’s not a ninny; I can tell that from her photo (and from her self-serving non-sequitors). Her work product makes me wonder how she would describe herself as a mother. Where did she hit it out of the parenting park; and where, if at all, did she crap the parenting bed. I wonder if Michael the Massuer is living the life that she dreamed of for him? Here’s hoping that she inserts herself in the civil case too.

    • AnnaZed
      01/25/2011 at 8:52 PM

      Ah, this is one of the things to love about WMRW.com; we are people that will form opinions based on self-serving non sequiturs and sartorial style and are not the teensiest bit shy about it. She Did It, I have missed you.

  7. AnnaZed
    01/26/2011 at 1:35 PM

    Why does this post keep posting to my RSS feed over and over and over again (mods?) are you guys editing it or something?

    • Craig
      01/26/2011 at 5:04 PM

      AZed: A few hiccups on the server. Trying to fix as we speak.

      Hoya and Bill-O: If the plaintiff’s go with the Single Bullet Knife Theory, that probably means no return to the stand for Diane Ward, right?

      • Hoya Loya
        01/26/2011 at 7:28 PM

        Exactly. No more tears.

        • Bea
          01/26/2011 at 8:08 PM

          I suspect plaintiff’s counsel will have to feel extremely confident of their experts on the “Dyl knife” before they’d dare trot that theory out. Agree that Judge Leibo HAD Joe if only she wanted him on the knife-touching since SOMEONE touched a towel to the blade for some reason (correction to someone above – Joe did not admit to wiping down the knife).

          That and his bizarro world comments about pulling it from Robert’s chest versus finding it lying on his chest were solid evidence of tampering if nothing else. If she’d “accepted” that Joe indeed pulled the knife out of Robert’s chest and then place the knife on the stand, then it would necessarily follow that he had to be the one to touch fabric to blade. Wiping on or wiping off, he was trying to make something look different than it was.

          And if the blood volume/clean up is the backdrop, the jury’s not going to think highly of Joe – especially without the need to reach BARD.

          • Hoya Loya
            01/26/2011 at 10:14 PM

            My bad on the wiping — though didn’t Joe implicitly admit to Tara Ragone that he wiped up blood (in general, not necessarily on the knife) because he was “freaking out?”

            • Craig
              01/26/2011 at 10:36 PM

              That’s my recollection Hoya.

            • Bea
              01/27/2011 at 12:08 AM

              You’re right that he strongly implied wiping up blood. I think he used language (possibly even “wiping up”) that suggested something other than wiping the knife as you suggest. He said to cops that the knife was ON Robert but told two others (not cops) that he pulled the knife FROM Robert’s chest. We’ve gone over and over and over the language and the logic, but I just can’t fathom “forgetting” which it was. The BEST interpretation is that he’s a sympathy/attention whore, and the WORST, well, you know.

              • Hoya Loya
                01/27/2011 at 11:56 AM

                Indeed, not something one is likely to forget. And does it make any sense for the knife to have been left on Robert’s chest after three stabs? I can see the killer leaving it in the final wound, particularly if that was the necessarily forceful sternum wound, or taking the knife away, but casually leaving it on the victim’s chest? If the kitchen knife is the weapon, surely it was pulled from Robert’s chest by Joe.

                • Craig
                  01/27/2011 at 2:26 PM

                  Ragone testimony on Price wiping Robert’s body + confliciting Price statements on where he found and/or placed the knife + evidence that knife was wiped + lack of blood on bed + lack of blood on Price = Are the Plaintiff’s approaching critical mass with those elements alone?

                  PS: Hi SDI!

                • Bea
                  01/27/2011 at 3:19 PM

                  Craig – I think the jury will have a very tough time NOT finding Joe complicit and with no one able to point to a different murderer, they will see what they see. BARD is not a problem here.

                  Hoya – assuming the kitchen knife is the murder weapon and giving Joe all benefit of the doubt, I agree that “the killer” would leave the knife in place for the third stabbing. With that knife, the murderer was careful to stop an inch before full insertion so as to not leave bruising from the hilt (again – WTF). So Joe walks in and sees the knife in Robert’s chest AND decides to pull it out (WTF, Eagle Scout), why then would there be any fabric markings on the knife? I know we see this similarly and thus this is rhetorical, but why would innocent Joe wipe off the blade under such circumstances? I know that shock could set in, but on “automatic pilot” one typically performs logically and that simply is not logical. How many times have we all driven long periods of time being “checked out” but drove beautifully?

                  In periods of my life under extreme duress (granted, not finding a knife in my friend’s chest) it seems I can act rationally while emotionally short-circuited. I have “found” a suicide victim and had to be the one to inform the police and loved ones (parents, fiance), had to travel at the family’s request to the morgue to get the suicide note and scan-email it to them, talk with apartment manager, etc. It was a very long and difficult day, and by the end of it I was emotionally exhausted but DURING the day I was completely “on task” and was able to push emotion aside. I don’t think this was an aberration of human behavior – the guy was my friend and I was horrified but I HAD A JOB TO DO. Same with Joe that night – I can’t see “innocent” Joe pulling out the knife nor can I see him wiping off the blade if he had done so.

                  The jury will use their own experiences to judge the actions of others.

              • CDinDC
                01/27/2011 at 3:41 PM

                Wasn’t his wording something to the effect of “there’s a difference between wiping up a little blood and cleaning up a crime scene”…? Something ilke that?

                • Bea
                  01/27/2011 at 8:49 PM

                  From this site about Tara’s testimony during the criminal trial:

                  “She said to Price, ‘I hate that I have the questions I’m having. If the scene was tampered with, I’d have a real problem, Joe.’ As mentioned earlier, Price’s response was, ‘There’s a big difference between tampering and wiping away some blood, freaking out about a crime scene.”

                  • CDinDC (boycott BP)
                    01/27/2011 at 10:30 PM

                    That sounds to me like implicating himself.

                    • Hoya Loya
                      01/28/2011 at 8:34 AM

                      Which is why Bea and I think Judge L. could have found Joe guilty of tampering, but instead opted to give Joe the benefit of a reasonable doubt, applying a very strict standard.

        • She did it
          01/27/2011 at 7:50 AM

          Do you mean crocodile tears, Hoya?

      • Clio
        01/26/2011 at 10:03 PM

        If Mother Ward will not testify, then will her husband do so as a character witness for either their son or their (sorta) son-in-law?

        • She did it
          01/27/2011 at 8:16 AM

          Clio – Perhaps Mother Ward’s husband will remain cheerleader-in-chief (handing out the “atta girl” pats on the dumper to brains of the defense operation). Can Dianne really stay off the stand? Maybe she will be called on to take the sting out of some of the more prejudicial evidence. “I can’t be certain but they could be my butt plugs. The dildos are heirlooms from the old country. I keep an enema and nipple clamps at the house for when I am on the East Coast, I am not certain but those could be mine”. Such testimony could be very help to the trouple if delivered with an appropriate gravitas that only Dianne could bring to the stand. I would not cross her name off the witness list just yet.

  8. Deb
    01/27/2011 at 9:19 PM

    Dear Friends:

    I’m back and have just enjoyed a wonderful post and some thought provoking comments.

    My absence was not by choice, although it did take a lot of self control!! I had some medical issues going on and had to limit my computer/television time to 4 hours a day.

    But all is, if not 100% well, back to a new normal, and I’m glad to have had my time restriction lifted. FINALLY!

    I have a lot of catching up to do, so please be patient with my stupidity.

    As for this post — being from an Irish background, story telling is a huge part of my family life. The same stories over and over again, embellished with new adjectives, verbs, images by each new story teller.

    In our family, you will often hear one of us asking if our “memory” of an event is “Live or Memorex”. This is because we have heard the same stories over and over since infancy.

    I can honestly tell you that there are some stories where I would swear to you I had been present at the event . . . but I wasn’t even born yet.

    I know that’s not really the direction the subsequent conversation here has taken, but just in response to Michael’s great post directly, memory is sometimes funny like that.

    More in keeping with the conversation (maybe only a little bit) I would want to ask Diane, from the Plaintiff’s side of the table, if she recalls any “knife-set” discussions with Dylan in the months ahead of August 2. Something like, “Mom, I really love this set and would love to use it in the kitchen, but I kind of feel weird because one of the knives is missing. Do you know where it is? Didn’t you once tell me . . . ”

    Believe me, by the time my mother was Diane Ward’s age, if I had suggested, “Didn’t you once tell me . . . ” my Mom would rely on my memory rather than hers.

    Peace, and glad to be back
    Deb

  9. dianne
    10/20/2012 at 8:01 PM

    i wonder to all the mothers out there how would you handle youre self on stand she was a mess first of all she had to hear about her sons private life wich no mother needs to or wants to know what her son chooses to do in bed i hope all you mothers never have to walk in my aunt diannes shoes the whole reason of being there was horrible for the wones and my family so stop judjing it could be any of you on that stand you never know.all of you make me sick!

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