Our Lips Are Sealed

Defense Sticks to their 5th Amendment Claims

In response to repeated Plaintiff motions to get the three Swann Street defendants to answer deposition and interrogatory questions, the defense filed their Joint Opposition to Plaintiff’s Motion to Compel Answers to Requests for Admission and Interrogatories

Or in shorthand, Get Bent Ben.

Judge Michael L. Rankin: Front row on right "What's the rush?"

One two seperate occasions since the first of the year, and as recently as last week, counsel for Plaintiff Kathy Wone have filed paper asking Judge Michael Rankin to rule on this issue.

This fight goes way back – the defendants’ adamant refusal to answer almost every single question lobbed to them, in written form in the interrogatories and face-to-face, in the depos. 

Neither side will budge. The ball remains in Rankin’s court, pardon the pun, and he appears to be taking his sweet-ass time either ruling on this issue or scheduling oral arguments so it can be hashed out, mano-a-mano.

The latest filing and the defense arguments follow.

In short, Robert Spagnoletti, the defense team’s go-to guy on Constitutional arguments, maintains that:

“Defendants were well within their rights to assert their Fifth Amendment privilege…

The Fifth…. ‘not only extends to answers that would in themselves support a conviction… under criminal statute but likewise embraces those that would furnish a link in the chain of evidence needed to prosecute the claimant for a …crime.

Because the answers to the questions identified by Plaintiff’s Motion could furnish evidence that might be used in a future criminal case, the Defendants have an absolute right to remain silent.”

Then in the accompanying Memorandum of Points and Authorities in Support, Spag gets to the meat of the issue and the reluctance for his clients to speak:

“Despite that the Defendants were ultimately acquitted on on all counts in the prior criminal proceedings, prosecutors continue to accuse the Defendants of being responsible for Robert Wone’s death and continue to threaten them with further criminal charges, including homicide.”

This begs the question – in what shape and form is the USAO DC still accusing and threatening the Threesome?

The filing goes on to state that MPD refusal to dump their case documents to the defense and the effort to hem in their depo questions of former Detective Bryan Waid, citing law enforcement privilege, are clear signals that the murder case investigation continues full bore.

This begs the question – oh, never mind.  “Very active investigation…” said the Chief on numerous occasions.  Is it really, Cathy?  Is it?

Joint Opposition to Plaintiff’s Motion to Compel Answers to Requests for Admission and Interrogatories

Points and Authorities in Support of all that 

43 comments for “Our Lips Are Sealed

  1. Clio
    04/14/2011 at 6:53 AM

    Editors, define “sweet-ass time” and “mano-a-mano” — they may have different meanings at the Crucible and/or the Green Lantern than at Moultrie.

    A Potemkin refuge in the Fifth Amendment cynically refers to (and barely obscures) a half-hearted investigation long out of steam: kabuki dancing never was so cruel, as we all literally go through the motions!

    Michael, stop dithering and put us all out of our misery!

  2. 04/14/2011 at 8:42 AM

    As I said before, the fact that these defendants continue to be suspects in the case of Robert Wone’s murder is a given. They need not convince the judge of that. Their refusal to answer questions that “tend to incriminate” still has a valid basis, i.e., they may damn well incriminate. But, the answers that are not given in response to valid, pertinent questions clearly do not imply innocence and will be interpreted by jurors, in fact, to be incriminating; jurors will infer. Those damnable inferences! The judge’s (your friend, “Michael,” Clio ?) proper instruction to the jury on that point will be crucial; may very well decide this case and present a valid predicate for the criminal charges to be filed (hopefully sooner, rather than) later.

  3. Bill Orange
    04/14/2011 at 9:56 AM

    The defense is basically saying that the defendants already look pretty guilty, and anything they say is just going to make them look worse. It’s hard to disagree with this assessment. My guess is that the judge is going to take the easy road here and rule in favor of the defense.

    The plaintiffs, however, could potentially turn the whole argument on its head. They could argue that the fifth amendment, contrary to popular belief, does not confer “the right to remain silent”, but rather the rather the right to not be a witness against oneself in a criminal case. And there’s really no reasonable way that that’s going to happen here. Just do the thought experiment: For any question that the judge rules the defendants must answer, is there any chance that the answer to the question could be admitted against them in a criminal trial? I don’t think so.

    The defense can argue that the defendants made every effort to invoke their fifth amendment rights, and I really don’t see how any criminal court could disagree with them. For all practical purposes, they have de facto “use immunity” with respect to any question they answer, once a fifth amendment invocation has been made. There simply is no real chance that their fifth amendment rights are going to be violated–anything they say will be suppressed in any future criminal proceedings. And in that context, there’s really no reason that the judge shouldn’t simply force them to answer all of Kathy Wone’s questions.

  4. Bill Orange
    04/14/2011 at 10:20 AM

    Okay, I have a pretty good idea of how this is going to play out for the defense. They’re just going to stonewall everything. And I can see how Kathy Wone is going to proceed. She’s just going to present all of the evidence to a civil jury and use the defendants’ stonewalling against them. The insurance company’s gameplan is less clear to me. I had thought that they would find a way to jump ship by now, but they still appear to be on board, so my best guess is that they’ll see this through to a jury verdict, and if any award goes over their pay-out cap, they’ll just pay the maximum and walk away, leaving the defendants on the hook for the rest of the money (if any) and any potential appeals.

    The leaves the government. They still have the option of filing homicide charges against any of the defendants, though they have previously declined to do so. What’s their next move? Though he has recused himself from this case, the current Attorney General of the United States has a well-documented interested in this, and everyone in the prosecutor’s office knows it. I just don’t see a scenario where they don’t file more criminal charges. So what would be the best way to proceed? If I were them, I would file murder charges against Dylan Ward and offer use immunity to Victor Zaborsky for his testimony.

    They could then admit the videos of Ward and Zaborsky “for truth” (since the defense will then have the option of cross-examing both of them) and the video of Price “not for truth”. The knife set, the S&M trunk, and the sketchy literature were all in Ward’s room, and I can’t really see how his lawyers would keep that out of the trial. His best defense would be that Joe and Victor did it, but I still think a good prosecutor would be able to convince a jury that Ward had to be involved. If he’s found not guilty, then they could immediately charge Joe Price. At that point, Dylan Ward would have no fifth amendment argument, so he’d have to testify. Joe Price could probably keep Zaborsky off the stand with spousal privilege, but unless Ward admits to acting alone at that point, it’s hard for me to see how his testimony wouldn’t be totally damning when it goes to a jury.

  5. Willie
    04/14/2011 at 11:33 AM

    No surprise here. I know the same 10 people here (give or take) love to talk in detail about matters that have been discussed hundreds of times in the past, but it has already been said by someone other than the club residing here that Rankin was going to hold his cards close and stick to his own plan. It’s been said since the last trial, criminal charges will come out of the civil case. Still no surprise here.
     
    Just take a step back from all the hyper bole and pay attention. As you can see, Rankin has been quite predictable all along. Stay tuned for more. So, no surprise here. Everyone, don’t act so surprised and talk away what is already known.

    • Hoya Loya
      04/14/2011 at 3:40 PM

      I do not understand the repeated, cryptic comments about this judge from some posters, e.g. “Let Rankin be Rankin” “stick to his own plan” etc. He’s just a judge, not some super-sentient being and I don’t see any particular plan in play here.

      Many judges maintain a “hands-off” style with regard to discovery disputes, allowing or encouraging the lawyers to resolve the issues or letting disputes blow over. If that is what Rankin is doing it is not unique or unusual, though normally there would be an order to the lawyers to “work it out or else.” And we’ve heard nothing of that or any other sort.

      The Fifth Amendment issue is central to the whole case, not just the discovery phase, and its resolution will play a huge role in how the case works out. If the defendants are within their rights, so be it — issue the ruling and let Covington argue for an inference instruction, which the defense will no doubt fight. If the defendants are flat out abusing the privilege, then so hold and give the them the choice of talking or being held in contempt (game over).

      With or without the inference, Kathy will get little new information from the case and any inference or deemed admissions will not be admissible in any subsequent criminal case, which this result will make much more unlikely.

      If the proper ruling is somewhere in between, if each question requires detailed analysis with regard to whether or not it must be answered, then that will require a huge investment of time. Maybe that is what Rankin is doing — analyzing where the questions fall based on the briefs. But these issues have been in play since before he took over the case — certainly it is time for at least a hearing so both sides can speak to the issue?

      Cards or no cards, he is not moving the case forward, and that is his job.

      • Craig
        04/14/2011 at 4:50 PM

        Hoya – And there could be up to 500+ individual questions in play – some simple and direct, others far more complex. Brooke Hedge should’ve stayed on this case in senior status with this being the only one on her plate. I really wonder if Rankin has the bandwidth for this.

      • Bill Orange
        04/15/2011 at 12:45 AM

        I disagree on one small point: I think that even if the defendants succeed in stonewalling everything, Kathy Wone is going to amass a LOT of new information. She has considerable resources at her disposal, and I think she’s going to ensure that everyone involved in this case is thoroughly deposed. I think that there was a lot of people that the police were hesitant to question, and a lot of probing questions that they neglected to ask (in part because many of the answers wouldn’t have made it into the criminal trial).

        I also think that she’s going to have a lot of latitude to to present this information at trial, given that the defendants are stonewalling. The government was fairly limited in what they could present at the criminal trial, and even with their limitations, they couldn’t turn over a rock without finding something fairly nasty under it. I would imagine that Kathy Wone would be able to turn up much worse.

        • Hoya Loya
          04/15/2011 at 8:21 AM

          Good point Bill O.

          I painted with rather too broad a brush. I was thinking primarily of new info from the defendants but agree that much might come from others. A premature close to the case via default would foreclose this possibility — perhaps that is why Razi and Regan are not pushing too hard and –perhaps, benefit of a doubt here — why Rankin is sitting tight — to let the other discovery go forward. But there are witnesses and avenues of questioning that might become available only if the defendants answer at least some questions, so the situation remains problematic.

          • Craig
            04/15/2011 at 11:53 AM

            We wouldn’t know if Tom and John were being deposed, would we? Fact witness lists were made public, but is discovery, beyond those published names, fought over like expert witnesses may be?

            • Hoya Loya
              04/15/2011 at 1:46 PM

              Discovery concerning non-parties who are not represented by or retained by lawyers of record tend to be less contentious, though the admissibility of resulting testimony or evidence may be fought over later at trial.

              It would be interesting if other witnesses try to claim the fifth.

              • Bill Orange
                04/15/2011 at 2:27 PM

                Louis Hinton tried to invoke in the criminal trial, didn’t he? Michael Price is another interesting character. I have a hard time believing the criminal defense team’s assertion that the police never even tried to talk to him. I fairly certain that the civil team has deposed him. Or plan to in the near future.

                • Clio
                  04/16/2011 at 6:57 AM

                  Uncle Michael, the occasional phlebotomist, may be willing to avenge petty or perceived slights from his better-educated brother and that brother’s snooty circle. Remember, little bro, “revenge is a dish best served cold.”

    • CDinDC
      04/14/2011 at 4:39 PM

      don’t I know you from somewhere?

      • susan
        04/14/2011 at 10:39 PM

        My thought exactly, CD.

  6. Micky
    04/14/2011 at 7:21 PM

    Our lips are sealed…forever!

  7. Carolina
    04/14/2011 at 8:13 PM

    Wouldn’t it be a kick if the govt suddenly gave one of the two main players immunity and forced him to answer the questions? I discount Victor because I don’t think he knows more than to keep his mouth shut.

    • Clio
      04/14/2011 at 11:41 PM

      Uncle Michael may also benefit from such a deal, but the dropping of the “burglary” charges yielded little fruit. Phelps, did you have a key to the playhouse, too?

    • Bill Orange
      04/15/2011 at 12:33 AM

      Victor has stated when Joe went to bed, and that Joe was with him in bed when he woke up later that night, and that the two of them went downstairs together when they heard noises. If he recants on any of those pieces of information, then he breaks Joe’s alibi. That doesn’t ensure a guilty verdict, of course, but it leaves Joe to argue that he didn’t kill Robert Wone, but for some reason he lied about where he was when someone else was doing the stabbing.

  8. Gloria
    04/15/2011 at 4:20 AM

    … and what he (Victor) saw, such as what measures he saw Joe take in response to the life-saving instructions given over the phone, any clean up activity, why the 3 appeared to be freshly showered, etc.

  9. Michael
    04/15/2011 at 12:40 PM

    I was about to point out that you’ve already used this headline, but now I see the URL: our-lips-are-sealed-2

    Nice sequel. NOTTT!!!

  10. Bea
    04/15/2011 at 3:58 PM

    All interesting posts. The problem that Louis and Michael have in terms of offering them immunity (assuming for argument that they’d take it, a big hurdle) is credibility. If someone like Sara, who lawyered up quickly, has something to hide, give HER immunity for sure! I’d have considered (if I were Covington) to name her as a defendant since she was there that evening but left, if only to rattle the tree.

    Let’s hope Covington is playing this full bore and is going to great lengths to do outside investigation and not just play legal games with the trio. As for the motion on the 5th, my broad brush understanding of the law is that they’ll split the baby but favoring defendants. They’ll have to answer the basic questions which they should have answered already. Some jurisdictions require an in camera (confidential hearing with the judge) so he can listen to the whys of needing to claim the 5th for individual questions. Makes sense if that’s an option.

    • Bill Orange
      04/15/2011 at 5:59 PM

      I think that an in camera session would be a disaster for the defendants here. The defense is basically invoking the fifth if the answer MIGHT be incriminatory. In camera sessions would mean that the judge is only going to let them invoke if the answer IS incriminatory. I’m going to guess that the defense lawyers in this case don’t actually know the answers to a lot of the questions that they’re advising their clients to invoke on, and I think that’s going to be their closing argument: The defendants aren’t invoking their fifth amendment rights because they’re guilty, they’re just invoking their fifth amendment rights because we (their defense lawyers) are telling them to, and we don’t actually know if they’re guilty or not, because we really don’t want to know, so you really shouldn’t hold it against them, since they’re just doing what we’re telling them to.

      If the judge makes them go in camera to say what the actual answers to the questions are, then that argument is completely destroyed. I suppose the defense lawyers could say, “We don’t know, and we don’t WANT to know,” but if the judge gets to the point of having in camera sessions over this, I can’t imagine that that argument is going to fly.

      • Gloria
        04/16/2011 at 9:27 AM

        Does “in camera” mean that the plaintiff is in the room, hearing the defense answer the questions for the judge?

        • cdindc
          04/16/2011 at 10:44 AM

          I’m sure an attorney (which I am not) can get a more thorough answer, but in short “in camera” mean “in private.” The specific proceedings aren’t open to the public. Either a closed courtroom or sometimes the specific meeting is held in the judge’s chambers. (When I say “specific meeting” I mean one hearing out of the many hearings leading up to the trial.)

          • Gloria
            04/16/2011 at 3:55 PM

            Yes, I know that, but does “the public” include the plaintiff or not? Again, when the defendants are heard “in camera,” who, other than the judge, is admitted to the room?

          • Bea
            04/16/2011 at 5:20 PM

            There are many kinds of in camera hearings, but in my understanding (not my area of law) one can have an EX PARTE hearing with a judge to decide when the 5th can be claimed – meaning that Plaintiff/counsel would NOT be present so as to not ruin the privilege or “leak” info. If ordered, then a judge (perhaps even a different judge) would take the list of questions along with the defendants and their counsel (not together) into a room and find out how the answer to each question would/would not divulge information which could be used against them in a criminal trial.

            While there is often a court reporter present, the transcripts are usually sealed. The judge would then report to which questions the defendant could claim the 5th. This may seem crazy, but it’s better than giving the defendants a complete “pass” on using the 5th willy nilly. For an example, see http://www.joeizen.com/evans.htm

    • AnnaZed
      04/15/2011 at 8:08 PM

      Bea, now that is an inspired thought. I have maintained for some time (ok, years) that Sara Morgan lied when she said that she simply slept over at a friend’s house. I think that she had knowledge that something was afoot and that she was told to make herself scarce (or understood that from previous fun and games nights). I also think it is quite likely that she alerted Victor to this and that phone records would show that. Why not include her in the charges? Pity that they didn’t.

      • Bill 2
        04/15/2011 at 10:19 PM

        I think you may be right on target, AZ. I wonder if they were to find out in the next few months, that she withheld important information, if her name could be added to the case as an accessory.

        • JuChen
          04/16/2011 at 2:04 PM

          There will be consequences that she would face this time if jurors find her a part of the cover up. Obviously, she knew something.

      • Bea
        04/16/2011 at 2:16 PM

        Too late, I’m afraid, to add her as a defendant unless there is “new” information which would provide a reason. The judge wouldn’t smile on such a move. But if she’d been named in the beginning. . .

        • david
          04/17/2011 at 2:26 PM

          We can’t forget that Sarah did answer at trial that she wasn’t told to stay away from the house that evening. I forget that if that was specific to Joe Price, since he was the one Sarah told that she “might or might not” be coming back that night. Even so, that could leave it open to others in the house — Victor or Dylan — saying such a thing. Also it doesn’t get at a pattern, as in whether she tended to stay away when Victor was not home. That question has never been asked.

          David

  11. Clio
    04/17/2011 at 5:33 PM

    BTW, Equality Virginia’s Eighth Commonwealth Dinner was held last night at the Richmond Marriott; the Mayor of Richmond was there to announce an executive order banning discrimination based upon sexual orientation in municipal employment. Sarah and her trouple were not spotted, and Dyana Mason is no longer Executive Director, but Joe and Dyl’s legacy of mainstreaming LGBT fundraising in the Old Dominion still remains without them. Will Arent Fox ever be a major sponsor of the dinner ever again, though?

  12. susan
    04/17/2011 at 8:54 PM

    Willie,

    Don’t know what you’re talking about. Don’t know you and haven’t been on the “blog spot” you mention.

  13. AnnaZed
    04/17/2011 at 10:03 PM

    Why do I miss out on everything? I missed (for example) the assembled hue and cry as to your whereabouts. In fact, I have no idea who you even are. I would have liked to know more of CDinDC’s fame, but (alas) that seems not to be. I am impressed that Mr. Google produced a blogger named susan (lower case s). Now that is some impressive sleuthing.

    • susan
      04/17/2011 at 11:42 PM

      Thanks, AZ. Yes, I’ll venture I’m not the only one who has posted with the name “susan” on the ‘net.

  14. Clio
    04/17/2011 at 10:31 PM

    Huh? I am too busy to have my very own blog, and I am no Florence King, Miss Ann Thrope herself. I must say, though, that a full moon does bring out the most interesting posts.

    • AnnaZed
      04/17/2011 at 10:50 PM

      Somebody’s been at the Mr. Google throttle whilst feeling omnipotent ~ always a bad combination.

  15. AnnaZed
    04/18/2011 at 2:02 AM

    Oh omnipotent one, if it pleases you to think that I have chosen to bring back the trend of designer leggings then by all means amuse yourself.

    Or again you might consider (I can’t believe that I must elucidate this) that the name AnnaZed is a typographical variation on the word amazed and that on the interwebs I am not the only person who has thought of that. It is not, when all is said and done, really all that original.

    • Craig
      04/18/2011 at 11:08 AM

      Those user’s comments have been deleted. There will be no games that involves identities, online or other, of the readers here.

      • JuChen
        04/18/2011 at 3:40 PM

        Craig, have you applied same rules to ALL people?

    • Bill 2
      04/18/2011 at 11:17 AM

      Never connected it with “amazed” and never saw the name elsewhere. I figured it was a good name for someone who keeps track of this case from A to Z. I appreciate you, the editors, and the many others who contribute to our understanding of the case and the remembrance of things posted in the past.

  16. CDinDC
    04/18/2011 at 11:09 AM

    Dear Willich,

    That’s not me honey. That lovely lady was in her 20s in 2006. I’m no where near my 20s. Good try though.

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