5th Amendment: Round II

What We Have Here, is a Failure to Communicate

Wasn’t it just the other day that we remarked how slow the paper chase in the Wone case was going?  

There had been no new filings since early December, and little or no activity according to the Court database. 

Late yesterday afternoon, a four page filing trickled in.  OK, we have a little post for Tuesday, we thought. 

Then a few minutes later, another filing came in.  That one tipped the scales at 150 pages.  So today’s post won’t be that little after all.

The last real action we saw in the Wone civil case was on December 8, at the status hearing that Judge Brook Hedge ordered so both sides could argue 5th Amendment issues.  At issue was the near complete silence of Defendant Dylan Ward in response to questions at his November 10, 2010 deposition.

At that depo, Ward refused to answer most of the questions posed to him by Plaintiff counsel Ben Razi of Covington.  Ward counsel, Robert Spagnoletti, did almost all of the talking that day and leaned on 5th Amendment privilege claims to protect his client.  Not only that, but Ward remained mute when asked if he was accepting his counsel’s advice.

That impasse, or game of legal chicken, led to a hasty call to Judge Hedge’s chambers.  Unable to reach agreement, she scheduled the December status hearing to hammer it out, along with one or two other ancillary issues.

The upshot of that status was the defendants’ had to mouth their 5th Amendment claims themselves, and not through their mouthpieces.  The next Ward deposition was quickly scheduled.  How quickly?  One week later, on December 15, he was back inside Covington and facing his inquisitors.

A month later, Ward’s former housemates/roommates/whatevers found themselves in the same hot seat for their depositions in the Covington offices on Pennsylvania Avenue.  All three of the depositions got a little bumpy according to yesterday’s filing by Razi.  How bumpy? Fasten your seatbelts.

Filed yesterday in Superior Court were two documents, the shorter Plaintiff’s Consent Motion to File Certain Documents Under Seal, and the behemoth Plaintiff’s Motion to Compel Defendants to Provide Answers to Deposition Questions Not Protected by the 5th Amendment.  According to Team Razi, Ward, Price and Zaborsky are still not providing answers to the deposition questions. 

In addition to the seal order below, is the larger Plaintiff filing, which includes the motion to compel, a proposed order, and a memorandum in support of the motion.  Attached to this memo are 26 pages of an entirely redacted document – a log of the 504 questions asked to the deponents. 

Exhibit A, which we’ll post later this week, is the entire transcript of the December 8 status.  Also attached are single pages noting the sealed documents – the depo transcripts of the Ward, Zaborsky and Price that were conducted on December 15, January 7 and January 11 respectively.

The final exhibit is the transcript of the aborted Ward depo from November. For background and review purposes, that document is here.

Simply put, Razi argues that there is no reason for the defendants to hide behind any 5th Amendment claims and that the threat to them for further prosecution is very unlikely.

“By the time this case reaches trial in October 2011, Mr. Wone will have been dead for more than five years.  At this late stage, Defendants face no reasonable prospect of criminal prosecution.”

This was hardly a vote of confidence in either the MPD or US Attorneys Office to bring additional charges against the threesome, by Covington.

Instead of answering questions, Cov maintains that, “All three Defendants refused to answer the overwhelming majority of the questions they were asked.  Instead, they chose to follow a rehearsed pattern of waiting for their counsels’ objections before reading a prewritten statement declining to answer.”

And then Covington ticks off the topics of the line of questioning that was conducted:

Deposition Preparation
Relationship with other Defendants
Relationships with Mr. Wone
Relationships and Communications with Mrs. Wone
Conduct for which Defendants have been Acquitted and Cannot be Prosecuted Again
Defendants Price and Ward’s relationship and Violent Conduct
Activities on August 2, 2006
Defendants’ plans to testify or other Evidence at Trial
Additional Questions

The arguments hit on a handful of basic points, of course backed up by reams of precedent, according to Razi:

I:  The Court Should Reject Defendants’ Attempts to Hide Critical Evidence from Mrs. Wone based on Overstated 5th Amendment Assertions

A. The Information Mrs. Wone Seeks is Properly Discoverable and Cannot be Obtained from any other Source

B. The Court Should Reject Defendants’ 5th Amendment Privilege Claims Because they do not Reasonably Fear Future Criminal Prosecution

II:  Defendants’ 5th Amendment Claims are Overbroad

A. Defendants Cannot Refuse to Answer Questions Related to the offenses for which they were Acquitted

B. Defendants have no 5th Amendment Basis not to Respond to Questions regarding their Deposition Preparation

C. Defendants have no 5th Amendment Privilege not to Respond to Questions Regarding their Relationships with Defendant Ward, and Defendants Ward and Price have no 5th Amendment privilege not to Respond to Questions regarding their Violent Sexual Practices

D. Defendants have no 5th Amendment Privilege not to Respond to Questions Regarding their Relationship and Communications with Mrs. Wone

III:  If Defendants do not Provide the Discovery that is Exclusively within their Control, Mrs. Wone will seek, and will be Entitled to, Adverse Inferences and other Relief.

And it is here we learn about possible next steps.  The obvious first next step is for the Defense to file a response in opposition to this motion, of course, and to expect a Plaintiff reply to that, but Razi goes on to warn of other possible action:

“Adverse inferences, and other penalties – such as default, burden-shifting, barring introduction of evidence and permitting counsel to draw jury’s attention to defendants’ incriminating silences…”

Finally, Razi asks the Court to set dates for argument:

“…a briefing schedule so that the parties may address what counterbalancing remedies are appropriate. 

Because the potential for defendants’ refusals to provide crucial evidence central to this case may have significant effect on the shape and focus of remaining discovery and trial, Mrs. Wone submits that the Court should establish a briefing schedule in order to address such issues as soon as possible in order to minimize any unfairness to Mrs. Wone.”

Perhaps we should keep an eye open for more paper, and another status hearing or two.  And depending on how the new judge on the case, Michael Rankin, rules on this motion, perhaps another set of depostions.  Round III?

 
CONSENT MOTION TO SEAL

PLAINTIFF MOTION TO COMPEL

104 comments for “5th Amendment: Round II

  1. Bill Orange
    02/01/2011 at 12:18 PM

    On the question of whether or not the defendants should be able to invoke their fifth amendment rights, I would have to say the answer is yes. They just went through a trial where a big chunk of the evidence against them was their own statements to the police. Robert Wone was found stabbed to death in their guest bedroom. Just about anything they have to say that’s even remotely connected to either themselves or to Robert Wone is going to be incriminating. I also think that the plaintiff’s lawyers are being more than a little disingenuous when they say that there’s little chance that any of them will be prosecuted in the future.

    That being said, I can’t see how any jury is going to tolerate this. The “violent sexual practices” (nice touch by the plaintiff’s team there!) is going to come up over and over and over, and I think that the defense really blew it here. I think they should have just said that they had a creative but consensual sexual relationship, but that this isn’t really relevant to the complaints in the civil suit. That argument MIGHT have allowed them to keep this away from the jury. Invoking fifth amendment rights here is an admission by the defense that this information is potentially incriminating. Taken another way, one could argue that the DEFENSE thinks this issue is potentially relevant to the murder of Robert Wone. That’s going to give the plaintiff a way to bring in the trunk of full of S&M gear. That plus uncooperative defendants equals an 8-figure judgement, in my mind.

  2. AnnaZed
    02/01/2011 at 12:21 PM

    “…By the time this case reaches trial in October 2011, Mr. Wone will have been dead for more than five years. At this late stage, Defendants face no reasonable prospect of criminal prosecution.”

    I know that he is just making an argument, but that is very sad reading. Can that actually be the case?

    • CDinDC (boycott BP)
      02/01/2011 at 3:45 PM

      Agree, AnnaZ…..I actually exclaimed OUT LOUD “What?!? How can he say that??!” I took comfort in knowing that it’s just one of the myriad opinions about this case.

      And, thank g-d there is no time limitation to filing murder charges. Who knows? Maybe pillow talk some sleepy Sunday morning with a trick du jour or a drug/drink-fueled weekend with a gaggle of party boys will result in disclosing the tiny detail the MPD needs to break this case wide open.

      • mw
        02/01/2011 at 4:03 PM

        Well, it would be fun to hear defense argue that no, the trio are in fact in SERIOUS risk of being prosecuted again if they have to answer questions about that night. Maybe with a footnote that says, (“seriously, just trust us on this one.”)

        • Hoya Loya
          02/01/2011 at 4:16 PM

          Exactly! They can’t really argue that . . . or can they? As we’ve seen previously, the chutzpah in this case knows no bounds.

          • susan
            02/01/2011 at 9:23 PM

            Chutzpah, esp., by the Spag. and his playing games re the 5th, which was really insulting to Judge H. Did he really think she’d buy his twisted reasoning re his being the mouthpiece for the 5th? Well, it’s LD’s father’s dime, I guess, and it really backfired because it doesn’t make LD look very sympathetic. Makes him look like he’s hiding something when he takes the 5th through a mouthpiece and for the most banal of questions.

  3. Hoya Loya
    02/01/2011 at 4:10 PM

    “The plaintiff’s lawyers are being more than a little disingenuous” … “‘Defendants face no reasonable prospect of criminal prosecution’ … Can that actually be the case?” … “Thank g-d there is no time limitation to filing murder charges.”

    Bill O., AZ and CD I think you are all intuitively grasping what is going on here, in what I find to be a brilliant piece of written advocacy by Razi and Regan, but let me spell it out a bit more:

    The three defendants maintain they are innocent of the murder and not liable for damages in this civil case. They have been cleared of related criminal charges. So what can they possibly have to fear, unless . . . ?

    Yes, I think Razi and Regan have their tongues firmly in cheek and the “unless” part is implicit, leaving the defense and the judge to fill in the blank.

    • Bruce
      02/01/2011 at 9:17 PM

      Hi ya, Hoya Loya:

      Agree completely with your analysis. What we are seeing in the brief in support of their motion is great salesmenship by the plaintiff’s counsels, as well as great advocacy, although in this context salesmenship and advocacy really mean the same thing.

      They are trying to sell to the judge the ideas that:

      (1) Defendants’ don’t really have any 5th Amendment privileges here, because the DC police are not going to arrest any or all of them for any further criminal charge, but the plaintiff’s counsels don’t really provide any legitimate argument in support of that message to the judge. If there was, they would have cited it. The big ole’ elephant in the room (at least in their brief) has two parts: (a) murder charges have no time liimitation (SOL); and (b) the DC police have specifically and publicly stated that it has NOT closed this investigation, and the press remains real interested.

      (2) You don’t raise the 5th Amendment unless you are guilty of something. To me, this message dominated the brief. Now memorializing it in print, it is just the courthouse utterances of plaintiff’s counsel of plaintiff’s attorney, but on the page and louder.

      (3) “Violent Sex Practices.” “Violent, Your Honor, I tell you they are violent!” These guys are animals with violent tendencies and that puts them right in league with whom we are not surprised to hear committed a murder.

      What exactly does violent mean? At least in the crime area, I always associated with non-consensual, improper, acts resulting in damage, either to humans or property. But http://www.webster-dictionary.net provides definitions that do not require those things, although some definitions listed there include the words “forcible,” “unjust or improper.”

      Of course, a fire can rage violently, can’t it? So, let’s give up on a concise definition……

      Whatever the case, the plaintiff’s counsels’ putting the word violently into this brief was pretty smart. If anyone complains that the word has definitions that includes non-consensual acts, unjust or improper behavior, the plaintiff’s counsels can just say: “No, it doesn’t have to mean that. Look at Websters.” But they got it in the brief, and I believe most of us, in the crime area at least, would associate the word violent with a non-consensual act.

      As to (1) above, I was most interested in the following from page 8, 1st paragraph of the brief:

      “…, Defendants are not likely to face future prosecution…”

      Is that the test? Likelihood? If there is a 51% chance of further prosecution, are the defendants reasonable in their concern of future prosecution, but at a 49% chance, is it unfounded and unreasonable?

      Not a lot of logic to their arguments in this regard, but a great way to try to sell a message to the judge, to try to weaken any possible sacredness to the 5th Amendment.

      As to the motion itself, plaintiff’s counsels are correct, I believe. The judge should look at it question by question. I previously posted my thought that the judge should consider ordering that the depositions of the defendants proceed at the courthouse for availability to the judge. The motion is correct to demand answers to questions that don’t impact directly and possible future criminal charge.

      The motion could have been half its size if it stuck with the real issue, rather than the salesmenship matters, discussed above.

      And, despite all of the above: The non-essential arguments in the brief were pretty clever of the plaintiff’s counsels.

      OK, enough.

      • susan
        02/01/2011 at 9:29 PM

        Bruce,

        Hi. Doesn’t the introduction of that term “violent” also open the doors for introducing JP’s interest in “torture” the little prison thing or whatever was in LD’s room, LD’s S&M for Dummies (something like that) with highlighter marks, etc. into the record?

        • Bruce
          02/01/2011 at 9:50 PM

          Hi Susan:

          I just don’t know the answer to your question. I do think it likely that the defendants will file a motion in limine to try to forbid the plaintiff’s counsels from using the word “violent” at trial in front of the jury. The judge will then listen to all arguments and briefs, and make a decision.

          I would imagine that the sexual paraphernalia will come in at trial some way. That’s bad for the defense, of course, but the plaintiff’s counsels should be careful when they do so. Overdoing it could engender some sympathy for the defendants. All of this is just my opinions.

          • Bruce
            02/01/2011 at 9:59 PM

            Susan:

            In reading over my post, I realize I should say that the expected motion in limine would just be to bar the word “violent” as used to describe the defendants themselves.

            Certainly, as to the murder, plaintiff’s counsels should be free to use the violent word as much as they want, to describe his murder.

            While it might seem odd to be allowed to refer to the killers of Mr. Wone as “violent,” but not refer to the defendants as “violent,” since they are accused of the crime…

            ..remember that they deny they did the crime, so the use of the word violent is as to whomever the murders were, not necessarily them.

          • susan
            02/01/2011 at 10:34 PM

            Hi Bruce,

            I suppose that if they preclude the use of “violent sexual conduct” there’s always the term “torture” used by JP in his ad expressing an interet in sexual torture, the torture chamber in the home, etc.

            • Bruce
              02/02/2011 at 1:30 PM

              Susan, you raise a good point.

              While I am still hung up a bit on applying “violent” to consensual acts, I also realize that I may very well be in the minority. Also, if the jury can hear about the “torture” regarding the JP ad, I guess they can make up their own minds on the topic.

              Much of this is bound, in my opinion, to motions in limine that will be filed right before trial.

              The rulings on those motions in limine will determine, to some extent, what the attorneys and witnesses can and cannot say in front of the jury regarding certain topics.

              A lot of this will depend upon the discretion of the judge, who may allow most everything in, or take a more restrictive approach.

              • susan
                02/02/2011 at 8:23 PM

                Thanks, Bruce. I was going to ask someone to thank you by proxy but I thought I’d go ahead and speak for myself…. ;=/ (that’s my attempt at a winky emoticon)

          • Craig
            02/01/2011 at 11:30 PM

            Bruce – If I recall correctly, a defense in limine successfully precluded any mention of sexual histories in the trial. Don’t you think the D will try for one that broad again in the civil, and not just a narrow motion to strike ‘violent?’

            I expect we’ll see the D’s response to this by early next week.

            • Bruce
              02/02/2011 at 1:42 PM

              Hi Craig:

              Snow day in Chicago! My firm, and I believe most businesses, have the day off, but I, of course, am trying to diligently do some work over my home computer.

              Great point about the motions in limine in the criminal trial.

              As a general statement, I think it is fair to say that usually a civil judge will allow more things in at a civil trial than a criminal judge for a criminal trial, but not always.

              I would seriously doubt that a civil judge would disallow any mention of sexual histories of the defendants with each other in this case, because those relationships go to the “meat” of the connections between the defendants, and could lead or at least touch upon possible motives for the claimed acts against them in the civil case.

              But, I would expect the defendants to dust off all the motions in limine filed by them in the criminal case for the civil case, and will likely file similar ones in the civil case applying civil law, as well as new ones.

              Because motions in limine can be pivotal in a civil trial, I would suggest that the plaintiff’s counsels, with their latest brief, are trying to sell or send signals to the judge as much as possible, in an attempt to influence how the judge may rule on those important issues in the future. Which, by the way, is a very legitimate legal strategy.

      • Deb
        02/03/2011 at 10:19 PM

        If they’ve denied every point in the complaint, then they weren’t involved. This is some very simple logic to me.

        So in answering the Complaint, they have said
        “I did not do it.”

        Then in deposition:
        “Well, then, having stated you did not kill the man, what DID you actually do on the night of August 2, 2006?”
        “I can not tell you because I will not incriminate myself.”

        This is not logic at all to me. Simple or complex.

        • Bruce
          02/03/2011 at 10:54 PM

          Hi Deb:

          Technically, I don’t think the defendants denied the allegations in the civil complaint, but raised their 5th Amendment objections in their answers. At least that is my recollection.

  4. jeana
    02/01/2011 at 5:41 PM

    Like AZ and CD, I was amazed – and dismayed – to read that plaintiff’s counsel believe the defendants face no reasonable liklihood of criminal prosecution. Loved mw’s response 🙂 as seconded by Bill O and Hoya. As to the “violent sexual conduct” – WOW. Plaintiff’s attorneys are pulling no punches. Clearly they are also delving into the relationships among the housemates – perhaps that will lead to those on the periphery as well (i.e. Sarah Morgan, Hixon, et.al) – AZ’s ever-widening circle from her previous post. They certainly managed to pack a lot of discomforting (to the trouple and perhaps others) into the non-sealed portion of their filings. Go Covington!

  5. Bill 2
    02/01/2011 at 8:49 PM

    I think this also gives their neighbor, famed Dupont Circle interior designer Scott Hixson, a preview of some of the questions that will be coming in his direction. After all, Hixson experienced play time with the two who are being asked about their “violent sexual conduct.” I still wonder if Hixson’s only view of the men in white bikini undies that night was really from across the street or if he actually got that view from inside their house. It’s not as if the camera equipment at 1509 Swann Street grew legs and walked away into the night. Perhaps Hixson has a clue about that part of the mystery.

    • CDinDC
      02/02/2011 at 12:16 PM

      Bill2 says: ” I still wonder if Hixson’s only view of the men in white bikini undies that night was really from across the street or if he actually got that view from inside their house.”

      I still find it more than odd that Hixson claimed he couldn’t tell who was standing outside in their underwear.

      I remember when I lived on Riggs Place….same kind of street….if the neighbors had their curtains open and they were cooking in the kitchen in the back of the house, I could identify who it was. I just don’t beleive he couldn’t identify who was standing IN FRONT of the house directly across the street from his window. I’ve always wondered if he was in the house at the house at the time of the murder. I’ve always wondered if he was involved.

      • Bill 2
        02/02/2011 at 10:23 PM

        You’re absolutely right CD. When I lived on the Hill, if the neighbors across the street had their drapes open after dark, I could identify people in the house — even without my glasses. That’s why I’ve felt that Hixson’s testimony doesn’t hold up. I’m not saying he was over there at the time of the murder, but at some time that night, I think he had a closer look at those men than he claims. I think that his claim that he saw someone from looking out his window could be a way to distance himself from the actions of trio — or a coverup for some involvement.

        • susan
          02/02/2011 at 11:15 PM

          Hey Bill,

          Read the posts by “Dee Dee” on this page. One of them mentions that SH is one of her “dear friends” and another mentions how easy it is to see across the street.

          http://whomurderedrobertwone.com/2010/06/14/day-14-updates/#/high_2

          • susan
            02/02/2011 at 11:24 PM

            “She Knows Something” makes an interesting point on that page too. Although SH lives right across from 1509 and so that’s an argument for being woken up by all the ambulances you do have to wonder if anyone else was woken up and looked out their front doors/windows too. It’s such a narrow and close street.

          • AnnaZed
            02/02/2011 at 11:54 PM

            What I have never been able to reconcile is Hixon saying that he saw a person on the stoop in his knickers (whom we have presumed was Joe) and DeeDee saying that Scott told her that he only went to the window because the police cars were making a racket.

            It can’t be both because wasn’t Joe upstairs with Robert when the police arrived and wasn’t it Ma’am in her terry robe on the stoop? Then didn’t the lady cop ask Joe to cover himself up?

            So, when exactly was Joe on the stoop? (I sometimes think he wasn’t)

            I thought that maybe it just meant that Joe was out reconnoitering in his skivvies before the cops came (because we know that he certainly wasn’t doing a thing to help or even comfort Robert), but that doesn’t square with Hixon only being drawn to the window by a commotion.

            • Craig
              02/03/2011 at 11:17 AM

              AZed – You’re right. The sequencing of what we know about Price’s movements and the Hixson testimony doesn’t seem to mesh.

              • AnnaZed
                02/03/2011 at 11:44 AM

                Yes, in my current mood it makes me wonder if Hixon erred in mentioning seeing a person clad in underwear (probably Joe) because it leads me to consider that the only way that he could have seen that on that night was if he was across the street himself inside the house ~ not as he claims just drawn to his window after the Emergency Services personnel made noise.

                • AnnaZed
                  02/03/2011 at 11:48 AM

                  Also, (come to think of it) wasn’t Dee Dee’s nearly hysterical insistence that Hixon was just being neighborly when he picked up Joe at the police station and that he had “no emotional ties” (shouted in all caps if I recall) to the trouple just the littlest bit of a strain on credulity given that we know that he was fucking Dylan before and after Robert’s murder?

                  • CDinDC
                    02/03/2011 at 12:04 PM

                    That’s “her” AnnaZ. She blew a gasket and began to spill all her CAPS.

                • CDinDC
                  02/03/2011 at 11:56 AM

                  Absolutely, AnnaZ….Joe never mentioned going outside (if my memory serves me). He was stationed right by Robert the whole time. From the moment he entered the room after hearing the groans. As you point out, it was Victor in his bright white bathroom. Big difference between tidy whities and a robe.

          • Bill 2
            02/02/2011 at 11:57 PM

            Thanks, Susan for pointing me in that direction. I noticed that DeeDee says, “Scott was not emotionally involved with any of them.”

            Isn’t it a little more than just being neighborly if a guy is having a sexual involvement with two of the three people across the street? Having that type of relationship with people involved in a murder case would make most people want to dismiss the notion of a close connection once a body was found in their house.

            On the Day 14 updates, it says that Hixson had sexual encounters with Ward several times before and after the murder. The “after” the murder encounter is chilling to me.

            • Clio
              02/05/2011 at 10:01 AM

              After! OMG!

              Well then, was Scott Dyl’s planned exit strategy from 1509 Swann? A strategy that was aborted with the unexpected events of August 2, 2006? And, thus, was Mr. Ward’s initial “shyness” over a threesome just there to placate Joe’s big ego? An ego that may have went “over the top” (literally!!) on August 2?

              • Bill 2
                02/05/2011 at 10:21 AM

                That’s a very interesting thought, Clio. He may have been grooming Hixson to prepare to take him in. Moving across the street is a lot easier than having to hire a U-Haul to move in with some other trick who lives across town or out in the burbs.

  6. Bill Orange
    02/01/2011 at 10:00 PM

    I’m a bit curious that only Price and Ward are mentioned in the “violent sexual practices” section. Did Zaborsky answer those questions, or did the plaintiffs simply not ask him?

  7. Bruce
    02/01/2011 at 10:17 PM

    Bill O:

    Just guessing, but using the word “violent” around Zaborsky, after his female chipmunk imitation on the 911 call, probably won’t work with the jury for Zaborsky, a near-fact that the plaintiff’s counsels probably have already figured out.

    I also think the plaintiff’s counsels very much like the Price/Ward relationship, and Mildred Pierce Zaborsky gives it a real zest of drama to entrance the jury.

    Best guess: the plaintiff’s attorneys soon learned from the 911 call, investigations, his police interview, etc., that Zaborsky is a fairly timid nice guy with whom the jury may very well sympathize. And, they like the story like it really is, so it probably wasn’t even asked in the deposition, but that’s just a guess, of course.

    • Clio
      02/02/2011 at 6:23 AM

      I love any reference to my girl, Mildred Pierce! And, her status-climbing daughter would be played by Mr. Price?

  8. christy love
    02/02/2011 at 11:04 AM

    How come taking the 5th is seen as having done something wrong? Even if you are saying “I might incriminate myself” it doesn’t mean you have done something wrong, it could mean you are afraid the police/court might twist what you say and use it for their own purposes. When the trouple was cooperating, everything they said WAS used against them.

    At this point the dude is dead(sadly) but I need to look out for myself. I would feel like I have to protect myself now. Especially, when it’s obvious EVERYONE thinks I am guilty.

    Also, how come the defendants can’t just say when asked a question at the deposition “on the advice of my lawyer, I plead the 5th?” It would be coming from their mouths, but putting the blame on the atty’s.

    • TT
      02/02/2011 at 12:08 PM

      Did the trouple really cooperate? Your statement “but I need to look out for myself” made me laugh. The trouple have always looked out for themselves. Why stop now?

      • Christy Love
        02/03/2011 at 10:59 AM

        Ok, “cooperating.” How is that?

    • Hoya Loya
      02/02/2011 at 12:47 PM

      “No person … shall be compelled in any criminal case to be a witness against himself …”

      This is not a criminal case.

      “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb …”

      The defendants have been acquitted of obstruction, tampering with evidence and conspiracy, cannot be tried again on those charges and should feel free to talk about facts that might otherwise lead to such charges.

      It is well-settled law that if one “takes the Fifth” in a civil case, that the trier of fact can make an adverse inference about guilt. If the defendants can’t be tried for obstruction, tampering and conspiracy and one is permitted to infer guilt when the Fifth is invoked in a civil context, then it could be logical to assume that the defendants are guilty of something other than the charges on which they were acquitted. The defendants can overcome the adverse inference by testifying. If they choose to continue to take the Fifth, whether out of fear of police persecution, word twisting or anything else, then they are also choosing to bear the consequence that many will think them guilty of crimes worse than obstruction, tampering and conspiracy.

  9. alternateguy
    02/02/2011 at 12:42 PM

    christy love on 02/02/2011 at 11:04 AM
    “How come taking the 5th is seen as having done something wrong? Even if you are saying “I might incriminate myself” it doesn’t mean you have done something wrong, it could mean you are afraid the police/court might twist what you say and use it for their own purposes. When the trouple was cooperating, everything they said WAS used against them.”

    christy my love, you are entirely correct.

    I’m quite familiar with the police/court system’s attempts to use out of context words against a convenient suspects. My advice to all is; when questioned about anything criminal; where you could at all possibly become a suspect, first get a lawyer. Then carefully follow that lawyer’s advice. Some say that only the guilty need lawyers. But I say that only fools believe that they never need them.

    Yes, much of what the trouple said was used against them. As were impressions of their body language and emotional demeanor. Hardly objective observations. If I were pleading the fifth after such treatment, I’d surely prefer having my attorney appear in my place whenever possible. After all I might make a body language mistake or display a frown at the wrong time or show a nervous tick or tear that could be worked against me. Gun shy? Not after they’ve repeatedly tried to shoot me down this way.

  10. mw
    02/02/2011 at 3:36 PM

    Defense lawyers have done a good job convincing people that utilizing 100% of your criminal rights is always the 100% moral/right thing to do.

    But it’s not true. If your friend is murdered, you’re innocent, and your cooperation could help bring peace to Wone’s family, and the offenders to justice – you should try to help. Even if it means that people will talk bad about you (they do already), and even if the authorities will then suspect you for the crime (they do already.)

    • Bruce
      02/02/2011 at 9:56 PM

      Hi mw:

      I know your opinion is heartfelt, and I would guess it is a high majority opinion. I respect it, of course.

      But I would also guess that criminal defense attorneys could point out cases where their clients maintained their innocence, cooperated with authorities, and then got out of jail (or death row) years later due to DNA or other evidence exculpating them from the crime.

      So, I guess I would just pose a question to you.

      You are a defense attorney and you are hired and paid big bucks to protect your client at every ethical angle and for every ethical purpose, in combatting charges or claims against your client. You have a duty to protect your client to the highest degree. Your absolute goal is to keep your client from being found guilty and to keep them out of jail. If you don’t do it right, or subject your client to exposure, you might be sued in the future by your client for malpractice, and/or have your license taken away by the state regulatory board.

      What advice do you give your client, Joe Price, in this case?

      (Hint: “Don’t go to law school” is not an available answer.) 🙂

      • AnnaZed
        02/02/2011 at 10:08 PM

        That hint was extremely funny Bruce, you are on form.

    • Christy Love
      02/03/2011 at 10:58 AM

      mw, you are naive. Sweet, but naive.

  11. Bea
    02/02/2011 at 3:37 PM

    My favorite part: forcing the defendants to have to use the word “murder” in their response as to why the 5th is still relevant!!! Brilliant!!!

    I suspect Plaintiff’s counsel will have a bevy of witnesses to support the “Violent Sexual Practices” theory – and, with no viable rebuttal – that alone will gobsmack the jury.

    • christy love
      02/02/2011 at 10:05 PM

      Why is that brilliant?

      • Bea
        02/03/2011 at 1:07 PM

        It would have been very easy for the plaintiff’s counsel to say “unless they are brought up on murder charges” but instead did not. To prepare the appropriate response, defense counsel will have to say to the judge “our clients could still be charged with murder, especially since there is no statute of limitations on murder and thus must claim the 5th”.

        • KiKi
          02/03/2011 at 4:33 PM

          I think that the defendants will be able to draft a reply that does not include Murder at all. How about this:
          “There is an ongoing investigation into the death of RW by the MPD and USAO. In connection with this investigation it is possible, indeed probable, that due to the MPD’s tunnel vision and attempt to cover up their clearly inept investigation, the MPD will once again levy misguided and unfounded charges against the defendants.

          While the defendants appreciate the plaintiff’s assurance that they are not likely to be recharged in relation to this investigation, the defendants are unaware of any of the plaintiff’s attorneys becoming deputized by the USAO. If the plaintiff’s attorneys have a special channel to the USAO and would like to ask their special friends to grant immunity to the defendants for any criminal charges stemming from the investigation of the death of RW, the defendants would certainly consider answering any and all deposition questions.

          However, until such an agreement is made, the three charges, for which the defendants were charged and acquitted, certainly do not prohibit the MPD or the USAO from continuing their misguided crusade against the defendants.”

          • Craig
            02/03/2011 at 5:29 PM

            Good point Kiki, but won’t laying blame at the feet of the MPD and USAO for their failures be neutered somewhat by Judge Leibowitz’ dicta – if that comes into play in this anywhere? She did after all express a degree of moral certainty (but not evidentiary certainty) that the threesome could’ve indeed been guilty of the criminal charges, and/or quite possibly, the murder.

            Doesn’t that in effect say that MPD/USAO were not necessarily barking up the wrong tree(s)? Or am I mixing apples and oranges / ducks and swanns?

            Lastly, although the conspiracy/obstruction charges did not result in conviction, they took nearly two years to be leveled. That’s hardly a rush to jugement. And can those three charges be realistically characterized as ‘misguided and unfounded,’ when considering Leibo’s strong language?

            • Bruce
              02/03/2011 at 6:05 PM

              Indeed, Kiki, if the plaintiff’s counsels are so sure that there will be no further criminal charges against the defendants…

              …maybe the plaintiff’s counsels and their firms would agree now to indemnify the three defendants for any and all attorneys fees and costs in defending against any criminal charges, if, in fact, the defendants are charged criminally in the future with murder or other charges arising out of the murder.

              • KiKi
                02/04/2011 at 12:11 PM

                I like that one too – like you said below put your money where your mouth is.

            • KiKi
              02/04/2011 at 12:11 PM

              Hi Craig. – I do think that your interpretation of Leibo’s opinion is correct. However, I stand by my opinion that her opinion will in no way be evidence in this trial or any motions. While the plaintiff’s may quote it and waive it around. I do not think that this judge will be able to base any decision on what judge Leibo said in that opinion. And if I were the attorney, I would be saying, of course Leibo thought some of the evidence pointed to my clients, that is what happens when the big bad United States government gangs up on three everyday men, the point, is not why she did not convict them, it is that she did not convict them.

              I think that as to your last point it is a chicken and the egg. Did the charges take so long because of MPD’s incompetent investigation or because they were thoughtfully combing through info.

              • Bruce
                02/04/2011 at 3:26 PM

                I agree with Kiki about the criminal court written opinion, but I think I would go further:

                My best guess is that the opinion cannot be evidence in the case, particularly the dicta, and that the only thing the jury will likely know or learn about the criminal case itself is that the defendants were acquited (found not guilty), and what the charges were.

                I do not believe that the jury would be allowed to read the criminal court decision, and I don’t believe that the attorneys will be able to quote from it, or mention in any way the reasoning or statements of the criminal judge.

                The previous criminal case is not an apple, but a lemon, for Mrs. Wone’s attorneys.

                The defendants were acquitted. That’s the fact.

                My guess is that Mrs. Wone’s attorneys are really not going to be able to make much lemonade out of that fact.

                Again, this will likely be decided in motions in limine right before trial. I would be personally surprised if anything about that criminal case came in except for what the charges were, and the result of not guilty as to all the defendants.

                However, one way that testimony in that criminal trial may legitimately come up in the civil trial is if a witness at the criminal trial says something different at the civil trial. Impeachment of that witness based upon what was said in the criminal trial, as compared to what is said in the civil trial, is a possibility.

          • Bea
            02/03/2011 at 5:40 PM

            I still think they have to say the word murder to make the full point, if not now, then during oral arguments – in order for the defendants to take the 5th they have to point to something other than charges for which they were acquitted. I think to NOT say the word gives it even more power. The judge (presumably) isn’t an idiot – hasn’t the statute of limitations expired for everything BUT murder (or will before trial)? All makes a difference since caselaw suggests the defendants will have to do a bit of explanation in camera to validate taking the 5th (or so I believe).

            • susan
              02/03/2011 at 9:17 PM

              I think Kiki was being sarcastic/caustic/tongue in cheek/cheeky. Bruce, too? Conflict of interest for plaintiff’s attorney’s to indemnify the other side against further charges, and as if!

              And, dissing the USAO–yes, that will really go far. But I think the defense should go with the strategy she proposed–in that case they’d sort of be working with the plaintiffs in making their case.

              • Bruce
                02/03/2011 at 9:56 PM

                Hi Susan:

                Well, I can with certainty say that I was a bit “tongue in cheek” with my indemnity suggestion. But I think Kiki is serious.

                If the defense were in fact to use language similar to Kiki’s in their reponses, it would be no “cheekier” (word?) than the plaintiff’s counsels in their brief.

                If the plaintiff’s counsels are so sure that the defendants will not be criminally charged in the future, then why not agree to indemnify the defendants if they are later criminally charged relating to the case, for their defense costs and fees in defending any future criminal prosecution.

                Ok, I know it is stupid, but I would think about putting it in a footnote. Put your money where your mouth is.

                Frankly, everyone knows that the worry for the defendants is for a murder charge,

                I don’t see why anyone is scared to speak the “murder” word. They are all adults.

                I believe that Kiki is spot on as to what we should expect from the defense in their response to this motion. It will probably also contain a litany of all the police investigation “goofs,” that took place, to put their clients in a better light, and combat the messaging of the plaintiff’s counsels in the brief in support of their motion.

                • susan
                  02/03/2011 at 10:19 PM

                  Thanks, Bruce. I think if the defense attys set themselves up with some of Kiki’s language, e.g. “the MPD” levying “misguided and unfounded charges against the defendants” it would be more of an invitation to go into those charges. And I agree with Bea that since Judge L. didn’t consider the charges frivolous by virtue of the wording of her determination, the civil court won’t either. But you know, you and Kiki and Bea, etc. are more likely to know how things may go than a non-atty, so I acknowledge that.

                  That said, language like “If the plaintiff’s attorneys have a special channel to the USAO and would like to ask their special friends to grant immunity to…” as Kik wrote, seems a bit too sarcastic and yet, I think that by going with this response, or even a softer one, the door is now open, wide, wide open for the defense to address the fear of possible murder charges for their clients, whether or not they use the word murder. And, whether or not it’s fair, it’s fact that people/jurors, etc. will form opinions based on the defense’s response and however they address it, by not cooperating, they give the appearance of something to hide. And the jury can–and likely will–consider that.

                  • KiKi
                    02/04/2011 at 12:15 PM

                    Hi susan, I agree with you that the language was a little snarky especially for a civil case. In criminal cases we can get away with a little more sarcasm, I think. But I agree that this is the only way the defendants can really get around this whole 5th issue in front of the jury. “yes we did plead the 5th but it is only because we are being persecuted.”

          • Hoya Loya
            02/03/2011 at 9:31 PM

            Kiki:

            While I agree that the defense need not use the “M” word in its response, the genius of Covington’s motion is that the “M” word is now a very big elephant in the courtroom and must be addressed somehow, even if obliquely, as you suggest, calling out Razi and Regan for being facetious.

            But I agree with Craig, even with the lack of any actual precedental effect from Judge L.’s findings, that the “we’ve been wrongly persecuted” ship has sailed (as have the good ship “Dylan’s knife theory” and the U.S.S. Xylene).

          • Deb
            02/03/2011 at 10:44 PM

            Wouldn’t all other statutes have run by now, except murder?

            Unless rape is a 7 year statute? I don’t know DC that much, so please help me out with possible charges that could still pend?

            Thanks,
            Deb

  12. Bill 2
    02/03/2011 at 11:34 AM

    “There is a value in value in reactivating our discussion again about Cold Case, but, it seems to go nowhere on this site every time I bring it up.”

    What are you expecting everyone to do? Has anyone said it’s a bad idea? I don’t think so. I think it’s great, fantastic, brilliant, and perhaps the only thing that will solve the murder of Robert Wone. I’m sure many agree.

    You keep playing a martyr as if you expect us to post pictures of us jumping up and down screaming, “Yes Rich! Go Rich!” Do you want us to picket DoJ, wave flags from the Capitol or form a parade down Pennsylvania Avenue with Cold Case signs?

    If everyone is already in agreement about Cold Case, Rich, what exactly can we (spread out all across the U.S.) do to make it happen according to what you’ve learned about it? Thus far, you mention it and you never follow up and then you mention it again and you don’t follow up. We’re waiting.

  13. Michael
    02/03/2011 at 2:00 PM

    Looks like the trouple is in triple trouble.

  14. susan
    02/03/2011 at 9:09 PM

    Hey All,

    I haven’t listened to the program yet, but on the Kojo N. show today on WAMU the topic was neighborhood crime blogs. Three blogs were featured including WMRW with Doug J. representin’. Heard it was a good show from a friend. The podcast is probably available online.

    • Deb
      02/03/2011 at 10:49 PM

      Cool. Good find and kudos to Doug for the rep!

      • Clio
        02/05/2011 at 7:43 PM

        Super! What other blogs were featured on that show?

        • susan
          02/05/2011 at 11:00 PM

          Hey Clio, The Prince of Petworth and DC Homicide Watch. You can listen or read the transcript. Note about the transcript. Really bad job. “Taut” is “taught” and here’s one to note: Housemates” are “Housemaids.” Enjoy!

          Go to the Feb. 3d show, scroll down to Blogging the Crime Beat.
          http://thekojonnamdishow.org/

          Overall it is such a service to the community that these blogs provide. I think a lot of crime doesn’t get reported right away, or at all. Is there a website anyone knows of that keeps track of all crimes, not just homicide?

          • Clio
            02/06/2011 at 4:24 PM

            Thanks, Susan.

            “Housemates as Housemaids: The World According to Culuket?” LOL!

  15. KiKi
    02/04/2011 at 12:54 PM

    Sorry for the length:
    This post has actually made me think that the defendants’ attorneys are really not at all concerned about the adverse inferences instructions if they continue to plead the 5th. In fact, I think it actually helps them. Obviously we have no idea what their theory will be come trial, but if it were me (with only knowing the facts as stated to the public) I would have an opening argument that went something like this:

    Ladies and Gentlemen, Mrs Wone is a victim. She was victimized when her husband was violently taken from her.

    She was victimized again when the MPD investigation was so inept it failed to produce any suspects. She was victimized when the MPD and USAO went on a crusade to pin her husbands death on her friends, with nothing but innuendo and circumstantial evidence. She continues to be victimized five years later when still no one has been charged with her husband’s murder. It is not surprising that she wants answers. She is entitled to answers. But the defendants in this case are also victims.

    Joe, Victor and Dylan (stand behind defendants put hands on their shoulders) woke up to a nightmare; their friend was brutally attacked in their home. But their nightmare, like Mrs. Wone’s has not ended. The defendants were immediately targeted by MPD. They were treated as second class citizens because of their sexual orientation, and in place of actual evidence, the defendants’ sex lives were used to demonstrate their guilt.

    After years of personal attacks an unfounded allegations the defendants welcomed their day in court. And after a trial on tampering with evidence, conspiracy to commit murder, and obstruction of justice, Joe victor and Dylan were acquitted of all charges. They were found not guilty. Joe victor and dylan hoped this would be the end of the MPD’s involvement in their lives. However their nightmare continues. Soon after the trial, the MPD announced that the investigation into Robert’s death was still open and active. The defendants would like to believe that this means that the MPD is looking in a different direction, that MPD has come to know what the defendant’s know: that they had nothing to do with Robert’s murder.

    But after 5 years of being attacked by the MPD, the defendants remain concerned that the MPD will somehow find away to remount their unfounded crusade against them and they will once again find themselves facing unfounded and misguided charges. This, ladies and gentlemen, is why the defendants cannot give you and Mrs, Wone the answers you seek. For one they just don’t know some of the answers but they are also terrified that anything they tell you or Mrs. Wone will be manipulated and used by the MPD to continue their crusade against the defendants and cover up their own ineptitude.

    So as you sit here you will hear that the defendants have refused to answer some questions, and the judge will tell you that you can draw some inferences from that refusal. I am asking you to keep an open mind, to consider that it is not that the defendants are trying to hide information from you or Mrs. Wone – Joe, Victor, and Dylan are simply following their lawyers’ advice in order to protect themselves from the continued and baseless crusade that has been levied against them by the United States Government and Metropolitan Police Department.

    • Bea
      02/04/2011 at 1:22 PM

      KiKi, I think that’s likely the best shot the defendants have, but jurors will agree that Kathy Wone should know what the defendants know. Her husband was alone in a house with the three men and he died. He appears to have been shot up with something, and his own semen found in his rectum (not anus).

      Two of the defendants had been advertising for a ‘third’ in their S&M play and had a plethora of sex toys far beyond the mundane, some explicitly used for torture, which, of course, two of the defendants advertised that they enjoyed. The jury will (likely) hear all this and more, including the strained if not impossible timeline, the clean up theory, the gaffes about 11:43 and how Victor “knew” things that were not “knowable” at the time; Dylan’s magical discovery of seeing the door unlocked yet the same info having been told to authorities prior to this discovery.

      So the defendants claiming “persecution” to account for silence AFTER they’ve been acquitted of the charges NOT MURDER won’t hold water with the jury, IMHO. Tara Ragone taking the stand, Scott Hixson taking the stand about Joe telling them he pulled the knife from Robert’s chest but telling the cops something else, him strongly implying to Tara that he cleaned up blood, yet the three men one after the next taking the 5th will be seen as hiding behind the 5th. I don’t see much sympathy falling toward the defense side of the room.

      Even in criminal trial, with instruction admonishing jurors not to hold against the defendant that he/she did not take the stand, jurors wonder. In civil trials where each of the defendants sits in the witness box and takes the 5th will be viewed as baiting Kathy Wone AND the jurors themselves: you won’t tell us who killed Robert? And you want us to give YOU a pass on liability?

      • KiKi
        02/04/2011 at 2:12 PM

        But Bea, your points fit perfectly with my theory. Let’s start with the sex play stuff.
        “Two of the defendants had been advertising for a ‘third’ in their S&M play and had a plethora of sex toys far beyond the mundane, some explicitly used for torture, which, of course, two of the defendants advertised that they enjoyed.”
        I file a motion in limine to exclude this evidence. I honestly don’t know the likelihood of success in a civil context, so lets say it all comes in. Every single time this evidence is brought up in trial I renew my objection as to the relevance. I get over ruled but the jury hears me say it.

        So there are 3 pieces of evidence in that statement, how does the evidence come in. I am certainly not stipulating to any of it:
        1. The defendants advertised for a third in their S&M play. Who do you call to authenticate this? The webmaster? My argument is that anyone could put up a website claiming to be someone else. But lets assume the judge says the webmaster can testify to this. Once on the stand I ask the webmaster how many other people on her website advertise that they are looking for a third in their S&M play? So, every single one of them must have murdered someone?
        2. Same issues for the advertising that defendants enjoy using toys for S&M. So maybe this time you call someone the defendant had s&M sex with? Again i object as to relevance. It comes in. I ask this person: Have you ever killed someone? Did the defendants kill you?
        3. The sex toys. This comes in through the cops. I ask the cop if he has ever used sex toys? i get objected to and sustained but the jury gets the point.

        Next we have the semen testimony. This like the knife testimony. I muddle it up beyond any sort of understanding by calling a bunch of competing experts.

        The timeline, phone calls, etc. This is all circumstantial and confusing. I make it more confusing through cross examination. In my closing argument I draw a series of dots on a paper with all of these circumstantial points. I tell the jury that “the prosecution wants you to connect the dots. But when you try to connect those dots, no clear picture is presented.” I then draw a lines connecting the dots which results in a black marker mess.

        Tara Ragone, Hixon, etc. “You see ladies and gentlemen this is why the defendants are taking the 5th. Everything they say, even when they are trying to explain what happened to their friends, has been manipulated and used against them.”

        I end with: I know you want answers, I know Mrs. Wone wants answers but please understand the defendants are not trying to deceive you, they are scared, they are innocent men being persecuted by the system. They too want answers.

        • Bea
          02/04/2011 at 2:34 PM

          I think it may be the defendants’ best hope but I don’t think it will work with a jury. They’d have to do somersaults to allow for all the inconsistencies/odd behaviors/coincidences in order to believe that the three men have no knowledge about Robert’s murder. And in choosing to say nothing, they look guilty. As the prosecution will argue (very well) per jury instruction.

          In my opinion, most jurors will ask: why don’t they tell what they know? The widow deserves to know what they know. They must know something that will put their own asses in jail.

        • Bruce
          02/04/2011 at 2:55 PM

          I think both Kiki and Bea are spot on. This trial is going to be a war. Each side is going to have good and bad days, and win and lose some battles.

          The plaintiff’s attorneys have a lot of nice apples in their trial sack, and they are going to be able to use them with the jury. Frankly, the job for the plaintiff’s counsels is going to be much easier than for the defendants’ counsels.

          The defense counsel have a number of lemons in thsir sack. What do you do with lemons?

          You try your best to make lemonade.

          Recipe for lemonade:

          (1) Make your defense centered upon the unfair and inept investigation, a la OJ;

          (2) Make your clients sympathetic to the jurors. The only way you can really do this under these circumstances, is to paint them as victims of the “system,” something some of the jurors may be able to hang their hats on;

          (3) Start your defense with jury selection, and come out with guns blazing. Don’t ignore the lemons. Embrace them and desensitize the jury to their sting by getting them out on the table even before the plaintiff’s counsels have a chance to do it.

          Example: Mrs. Jones, my clients engaged in consensual sex practices that some may not relate to and some may frown upon. They were consensual, meaning the two persons involved agreed to the practices. No one was injured, and all was done by permission. Can you treat my clients fairly knowing that in their personal and private lives they engaged in these consensual permitted activities?

          [with any luck, you will find a juror who will say: “Oh, that’s their private lives, which is really nobody’s business but their own.]

          Mr. Black, you heard Mrs. Jones say that she could treat my clients fairly under these circumstances, can you be fair to them also when you hear this evidence of their private, personal lives?

          Get the bad stuff out on the table fast, and have it come from the defense counsel if possible, rather than the plaintiff’s counsel. Defense counsel can not be timid or shy to discuss the lemons in front of the jury.

          Kiki is all over this in her examples.

          • Bea
            02/04/2011 at 6:25 PM

            Agree, Bruce, that KiKi has the right idea for the best defense – but these men who are being persecuted are not of the same cloth. I suspect that the jurors will see Victor as being different than his brothers and any sympathy the jury has will go to him. He wasn’t party to their party; he may not even have known they were trolling for a third; he wasn’t supposed to be home that night. Juries aren’t always smart but I don’t see this one for nullification. There was a very good reason the defendants asked for a bench trial in the criminal case!

            I do hope Victor has counsel with a spine (since he doesn’t have one) – his lack of participation, and possibly lack of knowledge of the true nature of his beloved’s sex and love life (meow there, Sparkly) may make the juror wonder just what was going on there at Swann.

            • Bruce
              02/04/2011 at 7:38 PM

              Hi Bea:

              Good point about the jury treating the three defendants separately and individually, based upon the evidence, because they are not of the “same cloth,” as you say.

              Indeed, if they use the same model jury instructions we use in Illinois, the jury will be instructed that the plaintiff must prove her case against each to find each responsible, they are to be treated separately, and the jury must view each defendant individually, as to the allegations and claims against them.

              I would imagine that Victor’s attorney will try to refresh the jury as to that jury instruction in closing arguments, while still keeping with the team defense.

              If that jury instruction is given, it may be what saves Victor. I believe the other defense attorneys will have to give Victor’s counsel the freedom to highlight it in closing arguments, without casting aspertions upon the other defendants.

              • Bea
                02/04/2011 at 8:23 PM

                What I didn’t understand during the criminal trial, and don’t understand now, is why Victor’s lawyer doesn’t make a very big fuss over him being lumped in with the others – I realize that it’s ultimately Victor’s call, that in the criminal trial he was unwilling to testify for immunity. But, that said, the lawyers know that he’s being used and faces the same harsh treatment as the other two. Pick your poison, I suppose, but I’d think at least one counsel would quit over it. I know that I’ve quit clients who wish to engage in self-hurting behaviors just because I couldn’t stomach it and be part of it. My guess is that Connolly and the current guy know very well what likely happened.

                Of course there’s the possibility that Victor’s even more to blame than the other two – but my guess is that he’d been sold down the river years ago by both Sparkly Cat and Big Joe.

              • Bea
                02/04/2011 at 8:27 PM

                Oh, as for the proof against all three, I don’t see that really helping Victor if they all take the 5th. Three guys alone in a house with a man who is stabbed to death and each takes the 5th – not much for the jury to worry about in terms of finding liability. Juries like things simple.

                But what if Victor testifies and the others don’t? He could save himself, and possibly Joe, by saying they went down the stairs and found the mess just like he said on the 911 call (word for word even). Of course Dylan’s real daddy would blow his stack as that all but points at Dylan as killer – and I’m not so sure that Joe really was upstairs with Joe and that Victor could hold up on cross (though he did at Anacostia that night). But that’s a quandary, I suppose, even if he did not take part in anything but accessory after the fact – his voice with the others’ silence is perhaps more damning still.

                • Clio
                  02/05/2011 at 9:46 AM

                  The ties that bind urban gay men to each other under intense pressure need further sociological study. One must ask why would Victor continue to support the Triple Alliance, and those reasons have to surely go beyond the immediate CYA issues of this case. Shared children and the “battered wife” theory do not fully answer this mystery either.

                  • Jeana
                    02/05/2011 at 11:09 AM

                    Victor has always been and remains the biggest mystery. If, as I and many other posters believe, he is the least culpable of the three, the question is why is he not acting to save himself? It’s hard to believe that he would continue to be driven solely by misplaced loyalty to Joe in light of all the evidence of Joe’s disloyalty to him.

                    If Victor was simply overwhelmed and overtaken by the horror of that night and engaged in the cover-up, then even lacking any malicious intent toward Robert, he knows/believes he is guilty of abetting the perpetrator(s) whomever he may know or suspect them to be. He could well be asking himself, (especially after the criminal trial verdict) ‘why should I take the plunge and subject myself to civil and perhaps criminal liability only to watch the wily perp(s) get off?’ Perhaps Victor’s time has come and gone; having remained silent throughout the criminal proceedings, he now feels committed to the same strategy for the civil proceedings.

                    As I posited during the criminal trial, it’s also possible that Victor may simply not possess sufficient factual information to bargain with. I do think that Victor knew or suspected something nasty was going to go down that night and is wallowing in guilt for not having prevented it.

          • Clio
            02/05/2011 at 1:44 PM

            Does privacy, though, dearest Bruce, extend to advertisements on the World Wide Web with one particular solicitation talking about something forbidden by the Geneva Conventions of 1949?

    • Craig
      02/04/2011 at 2:33 PM

      Very pursuasive Kiki. Thanks. If we see this in October, you should get a royalty check. 🙂

      The D team will have to be pursuasive, given what we’ve seen so far in the filings and at the few and rather tame by comparison status hearings. Barbarian at the Bar, Patrick Regan, could unleash a firestorm on the threesome in Rankin’s courtroom.

      Appropriate Moultrie attire for those six weeks? Flameproof Kevlar.

      • Clio
        02/05/2011 at 9:38 AM

        Does that Kevlar come in beige or navy, Craig?

  16. Jeana
    02/04/2011 at 2:35 PM

    To Kiki, Bea, Bruce, Hoya and all the other “loyas” and interested readers who have posted to this article: Thanks for the time you are taking to engage in an informed, professional and rancour-free debate and discussion. This is interesting and informative – it exemplifies the WMRW we know and love.

    • Kate
      02/08/2011 at 1:19 PM

      Jeana – I second your thoughts! Although I haven’t posted in a month or so, I’ve been keeping up with this fascinating dialogue amongst the learned legal folks. Many thanks to all.

      The only point that is crystal clear to my non-legal mindset is that these defendants are not going to cooperate during discovery in any way shape or form. I sadly suspect this will continue through the trial and we may witness another dumb show of “Hear no evil, see no evil, speak no evil.”

      Cheers and many thanks again,
      Kate

  17. Craig
    02/07/2011 at 10:21 PM

    Avoiding skinny thread and responding to Jeana, Susan, et al.:

    Jeana – Some good points. If the civil jury goes the Plaintiff’s way, Vic will never have two nickles to rub together again. He is wholly dependent upon Price to get him off the hook again. Will their legal luck run out come October?

    Regarding his possible involvement – the conventional wisdom among the learned readers says he’s least culpable. I’ve worn out two keyboards since we launched this typing and retyping the old Washington maxim: The conventional wisdom is always wrong.

    As far as the circle of friends that remain close to the defendants – who the hell knows. In almost 2.5 years, exactly one has reached out to us and we remain appreciative and still discrete. Are there any others out there? I’m beginning to have serious doubts.

    The Moms are still on board I guess. There were the Boys in the Hallway too, at Moultrie, although few in number, Scooter Girl and a vocal booster that TV cameras caught on verdict day. But none have the courtesy (or stones?) to drop us a line. Some things are better left unsaid? Maybe, in the back of their minds….?

    But all they need to do is chat with the one who trusted us and they’ll learn that we don’t bite. And we pay for dinner.

    • CDinDC
      02/08/2011 at 2:34 PM

      Craig,

      What if Victor dissolves the domestic partnership? Could a jury heap the preponderance of damages upon one or two of the trouple and allow the third (say, Victor) to skate with a lesser amount?

      To the legal beagles……..would it be beneficial to Victor to sever the domestic partnership at this point?

      Craig, has anyone filed a request to see if “divorce” papers have been filed in DC?

      • CDinDC
        02/08/2011 at 2:41 PM

        speaking of dissolving the partnership…other than filing an actual termination statement with the DC gov, all Victor would have to do is to move out on a permanent basis.

        8002 TERMINATION OF DOMESTIC PARTNERSHIP

        8002.1 A domestic partnership registration, and all the benefits that accrue as a result of registration as domestic partners, shall terminate automatically when:

        (c) Either partner abandons the partners’ mutual residence.

      • Bea
        02/08/2011 at 3:16 PM

        To Craig – at some point, one of the inner circle has to have a Eureka! moment and jump ship (assuming it hasn’t already happened). I know that some have drunk so much Kool-Aid that they’ll never recover, but perhaps a partner of a Kool-Aid fan, or a best friend in whom the Kool-Aid drinker confides. . .

        CD, if the case against the defendants is found on negligence, then Victor is on for the whole amount (joint and several liability) just as Joe is. Dissolving his domestic partnership NOW won’t have any effect on what happened back in 2006. That said, if Victor dumps Joe and turns Plaintiff/Prosecution witness, Kathy Wone and the prosecution would hand him the get-out-of-jail card in a nanosecond (IMHO).

    • Jeana
      02/08/2011 at 4:45 PM

      Craig – I hear you regarding the conventional wisdom, and you’re absolutely right. (Sorry about the keyboards!) As David said, the truth will eventually come out. It’ll either be something none of us thought of – a total shocker – or we’ll be scrolling thru the archives to see whose theory came the closest. In the meantime, keep up the good work!

  18. mw
    02/08/2011 at 3:57 PM

    I doubt the trio has shared anything of value with any inner circle. I’d guess whatever they know is a special secret for the three of them, that only makes their love and bond stronger.

    • mw
      02/08/2011 at 4:02 PM

      Replying to my own post here, but I think the only “break” we’ll ever see in this case is if one of the trio (probably Victor) is murdered by some combination of the other two. I certainly wouldn’t hope that would happen, but this would appear to be very controlling, high-risk domestic relationship, consisting of very dangerous people.

      • AnnaZed
        02/08/2011 at 4:13 PM

        I see the potential break in the case coming when Dylan finally murderers someone else and Joe isn’t there to cover for him. I would advise caution in the Florida erotic masseuse customer base from now until he is incarcerated given that Dylan can just make-up a new name and start trawling for customers whenever he likes.

        Also I wonder, does anyone think that Dylan using Michael’s name was some sort of code?

        • Bea
          02/08/2011 at 5:17 PM

          AZ, Michael is also Dylan’s middle name. Might have been for either reason, I suppose.

      • Bill 2
        02/08/2011 at 5:29 PM

        I agree mw. Several years ago I mentioned that if someone in the house suggests an outing to Great Falls, that it would be best if Victor doesn’t stand too close to the slippery rocks. If he has a car, he should always be sure to test the brakes before driving off.

    • David
      02/08/2011 at 4:19 PM

      MW,

      Agreed. The inner circle may have suspicions but even if they have a Eureka moment at Bea suggests, it won’t be enough to bring additional criminal charges. What happened on Aug. 2 is known only to these three men, maybe a fourth knows something, like Michael Price, but not everything. The passage of time is our best detective here. As the years pass, they will continue to wake up again and again in a cold sweat with Robert Wone haunting their dreams. It will take a terrible toll on what is left of their crippled consciences. One of them will not be able to take it anymore. Then and only then will that cause a break in the silence. How they break that silence — an off-hand remark to a stranger, or an all-out confession remains to be seen, but it will happen. The truth will come out.

      David

      • AnnaZed
        02/08/2011 at 4:26 PM

        I can’t agree with this. If the only potential candidate for humanity (Victor) hasn’t broken by now, then I conclude that he has passed the sweaty guilty conscience phase and is in deep and convoluted self-justifying denial.

        • susan
          02/08/2011 at 8:54 PM

          AZ, having given some thought to Craig’s statement about conventional wisdom, I have reconsidered VZ a bit.

          Many people on this site have agreed that V seems the most clueless that eve and the most credible. But when discussion of the 911 phone call arises…V’s credibility with some comes into question. If he found out some things from that moment on that he didn’t share with police, and he was in that car (wasn’t he?) where Hixson says JP said he pulled a knife out of RW, then maybe at that point he is in so deep (at the very least with not fully cooperating with the law) that he is convinced or others have convinced him–and rightly so–that he is from that moment forward an accomplice to some crime–obstruction of justice, or murder, etc.

          And looking at it that way, and from that brief impression in the courtroom, I think the dye is cast and cooperation is not something the law, this blog, or the public will see from V. Zaborsky.

          • Kate
            02/09/2011 at 7:46 AM

            Susan – I completely agree with your your thought that cooperation is not something that the law, this blog or the public will see from any of the three.

            This line of discussion has caused me to sit back and revisit VZ, as well. Like many folks here, I still hold to the conventional wisdom that Victor is the least culpable. It may be that he simply believes he’s been telling the truth and he’s had many a year to cement that “truth” in his mind. Perhaps he was guided to that truth by Joe, or Joe and Dylan, etc.

            The one point where I have strong questions regarding his version of events, as described in the Anacostia Dialogues, is his insistence that Joe was with him in the master bedroom when they heard some sort of commotion from downstairs. They then tiptoed to the bedroom door together and heard the “grunts” or “yells.” If this is true, it tends to support Joe’s claim of innocence in Robert’s murder. That’s leaves Dylan and/or someone else responsible.

            Granted, that “someone else” could indeed be Joe … if he snuck up the stairs to rouse a deeply sleeping Victor to set his alibi. Seems far fetched, I know – particularly when one considers the tight time frame of events.

            After all of these years, we are still missing something very vital to solving who murdered Robert Wone. Sadly, we – the law, this blog and the public – may never know.

            • CDinDC
              02/09/2011 at 10:07 AM

              Not to forget the interesting/odd tidbit that when they supposedly tiptoed down the stairs together and discovered Robert, they never bothered to check on Dylan.

              • Kate
                02/10/2011 at 9:59 AM

                Oh, another good point, CD.

                My incredulity is rising all over again …

      • Bea
        02/08/2011 at 5:18 PM

        David, I agree that at some point, someone will say something. Assuming what we’ve heard is true, and unless Joe and Dylan have stopped using, that tops my candidates for how it plays out.

        • CDinDC
          02/09/2011 at 10:09 AM

          I wonder if the po-po will ever requestion them. As they say, you can remember the truth, but you can’t remember the lies. Would there be a significant slip up if requestioned?

    • 02/08/2011 at 10:56 PM

      amen–as wicked attraction show shows–sad because one partner is always dominant-imho

  19. Bill Orange
    02/08/2011 at 4:27 PM

    I think KiKi is spot-on with how the defense is going to play out. I think they’ll also make a big deal out of the fact that the current attorney general is personally involved in this case, and even though he’s recused himself, I think everyone involved knows that he’s watching. That’s a pretty strong motivator for the USAO to charge anyone they can with a crime here.

    That being said, I just don’t see a jury buying this. When someone pleads the fifth, the natural inclination is to assume that they’re hiding something. This inclination is so strong that both judges and defense lawyers in criminal trials will repeatedly explain that you CANNOT use a fifth amendment invocation against a criminal defendant. In this case, it cuts the other way. And every time the defense objects, the plaintiff is going to bring this up. If the defense objects on relevance grounds, the prosecution is going to say that they obviously thought it was relevant, because they themselves advised the defendants not to answer the question.

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