The Password Is…

Tuesday’s Motions Hearing

It was hard to get a grasp on Judge Michael Rankin’s style today.  He started the hearing fifteen minutes late and played the Absent Minded Professor Jurist (AMJ) with us.  After taking his seat on the bench he admitted to forgetting the password to the computer on his desk.  “You must remember it,” he said to what seemed like no one in particular in 517.  ‘Try ‘password,’ lead plaintiff attorney Ben Razi replied. The stage was set for what turned out to be a brief yet sometimes amusing session.

At the December status, the room was fat with counsel, today, there were several no-shows, in particular Robert Spagnoletti, counsel for defendant Dylan Ward, and plaintiff co-counsel (and gunslinger) Patrick Regan.  Later in the session however, another attorney would be channeling his “energy.”

“Standing in” for the Spag was a familiar face from those hazy, crazy but hardly lazy days of summer, Schertler & Onorato’s Veronica Jennings, a regular fixture in Judge Leibovitz’s courtroom during the criminal trial.

Also MIA was any counsel for Defendant Victor Zaborsky, neither Hunt Valley, Maryland, attorneys Frank Daily or Sean Edwards were in the house.  Noting their absence, Rankin said, “Someone had no interest… and didn’t drive in from Baltimore…”  

Also in attendance were Covington’s Charles Kitcher, Price counsel, Brett Buckwalter, and Patricia Donkor, a DC AG’s office attorney on behalf of the MPD.  In the gallery were members of the Wone family, other Covington hands, Legal Times’ Mike Scarcella, the Post’s Keith Alexander,  Emily Babay from the Examiner and the Blade’s Lou Chibbaro. Longtime WMRW reader Gloria was also on hand and helped provide notes and quotes for this post.

Our first indication that this was going to be a breif hearing was that none of the attorneys came in with any binders, files and roll-about carts that are usually stacked with boxes of paper. Razi only had a slim file on his desk in the well.  The other attorneys also traveled just as light.

The main order of business was the questions regarding defense depositions of five (see below) MPD detectives, all still on the force except for Bryan Waid, a relatively new Florida transplant.  Donkor and Buckwalter pretty much had the floor to themselves for the thirty minute hearing.

The issue comes down to the AG’s office, on behald of the MPD, not willing to subject the detectives to lines of questioning that did not originally surface in the criminal proceedings. The defense argues that a blanket law enforcement privilege keeps them from doing the discovery they need to accomplish.

Both Donkor and Buckwalter have been in communication and working together but were at odds on how to proceed further.  Donkor maintains that without knowing what questions the detectives will be asked, she will side on trying to apply the privilege.  The MPD is willing to show some leg, but must ensure the integrity of the case investigative file, since the murder investigation continues.

Brett Buckwalter

After she stated her position, Buckwalter said the downside of such a ‘blanket assertion’ of law enforcement privilege in unwarranted, several of the detectives, including Waid had testified in the criminal.  Rankin said of the logjam, I’m not sure we’re making progress.  We need to get closer.” 

Buckwalter said he wasn’t asking for documents, a list was provided by the MPD of the case file contents, a Declaration by Daniel Hickson, Commander of the Department’s Criminal Investigations Division, but the defense wanted access to witnesses.

Rankin was concerned about how high up in the MPD the AG’s office went on the issue of privilege, suggesting she go all the way to the top, perhaps to Chief Lanier. “If you have a concrete idea of what you are looking for.. you have to go to the top… Either the public has a right to know, or the public will be harmed (by loosening up the law enforcement privilege). Then you have an issue for me,” he said.

In the end, Rankin told them to continue working together.  Donkor will accept the defense subpoenas on the MPD detectives’ behalf and they have to report back, in another status hearing on May 5, Cinco de Mayo, the Judge noted.

Then things got interesting.  Ben Razi stood up and went on a tear:

“Just for the record on this current discovery dispute we don’t have a dog in this fight… but I’ll make one observation that’s been obscured — the problem isn’t lack of information from the police.  They have provided binders, and binders, of documents.

Nothing is going to come out of these depositions… and come up new insight…  This thing has been discovered extensively. We’re ready to try this case now based on the evidence we already have.  We don’t want a side show fishing expedition that was started at the bottom of the seventh inning of discovery to delay trial. 

The real problem with discovery and the motions to compel against the defendants’ decision to sit out and not provide evidence.  Those are issues that we request the court make clear its opinions…  at some point we’re going to need to deal with what happens in a case like this that involves something happening in your house for 90 minutes, and you are the only one there… ” 

Ben Razi

Rankin interjected and jokingly asked, “Are you being provocative?  You said you didn’t have a dog in this fight.  You were doing so well and now you’re gonna upset everything…  You raise good points (but we’ll deal with that later).” Then wrapping up and indicating his preferred style, the Judge told counsel:

“I’m a big fan of trying to work things out… We’re trying to make sure we understand the issue and identify the law correctly so I can resolve it… The way to do it better is if everyone works together.  I’m ready and able to decide on things that you can’t work out.”

Razi got up another time to weigh in on law enforcement privilege dispute and tried to take another shot at the defendants.  Rankin told him, “You’re not being helpful.  You could be right (Mr. Razi) but I could be right too.  If I’m wrong it won’t be the first time.”

Lastly, the followup filing from the MPD and DC AG on quashing depo testimony from other detectives besides Waid.

THE METROPOLITAN POLICE DEPARTMENT’S MOTION TO QUASH THE
DEPOSITIONS OF DETECTIVE XANTEN AND MOTION TO QUASH THE
DEPOSITIONS OF DETECTIVES WHALEN, NORRIS, AND SERGEANT WAGNER
FOR THE LIMITED PURPOSE OF ASSERTING THE LAW ENFORCEMENT
PRIVILEGE AS TO SUBJECT MATTER NOT PREVIOUSLY DIVULGED BY LAW
ENFORCEMENT

47 comments for “The Password Is…

  1. Michael
    04/20/2011 at 2:25 PM

    I think there are a lot of judges out there who don’t use the computers provided for them. Their clerks handle incoming e-mail and what not.

    I am rooting for Razi because he is stylin!

    • Clio
      04/23/2011 at 11:43 PM

      Ben does have star power: let’s hope that his sense of fashion and charisma are not lost upon Judge Rankin.

  2. noaharc
    04/20/2011 at 9:56 PM

    ‘and u were doing so well”–come on judge –isn’t that what Hannibal Lector said to Clarisse when she broke civility IN HIS MIND. Ms Wone doesn’t need the absent minded professor this time-she has had 1 judge disappointment already-IMHO–it works 2 ways. As the judge told Michael Jay who was late on his first day in court–U have not made a great first impression. IMHO-everyone needs to get their act together–Ms Wone has suffered enough in her search to ask LADY JUSTICE to answer the reason why/my husband’s death was it worth it to whoever took it.

  3. Kate
    04/21/2011 at 9:34 AM

    Rankin: “I’m ready and able to decide on things you can’t work out.”

    I suppose neither side is ready or able – or willing – to take the Judge’s patient hint?

    I begin to strongly wish someone would finally call “Uncle” so the court can move on with this.

    Regards to all,
    Kate

    • Gloria
      04/21/2011 at 4:28 PM

      Rankin’s actual quote did include the word “willing,” but otherwise, he was folksy, jokey and laid back. My interpretation isn’t “patience.” (And he talks REAL low. It’s going to be a struggle to hear him during a trial, if it ever — lives to — occur(s).) Razi claimed to be rarin’ to go to a trial — there, then — despite not lugging in documents — there, then. Not to be.

      • Hoya Loya
        04/21/2011 at 5:35 PM

        Standard judging 101 — “you folks are adults, work it out or I’ll work it out for you.” About what I expected, though I expected the admonition to encompass the Fifth dispute as well.

        Razi sounds very confident, beyond just posturing — I wonder he feels they’ve turned up some good stuff in discovery?

        • Bill Orange
          04/21/2011 at 6:52 PM

          I really can’t imagine a scenario in which they did NOT turn up “good stuff” in discovery. Every time someone turns over a rock in this case, something ugly slithers off.

          I’m a bit intrigued by the absence of counsel for Victor. Lawyers, is this typical? If I were a defendant in any sort of legal action, I’d expect my lawyer to show up at all of the hearings, particularly if my lawyer was being paid for by my insurance company. Simply not showing up seems like something that would needlessly antagonize the judge.

          • Hoya Loya
            04/21/2011 at 7:03 PM

            It may not mean anything. If Victor’s position is the same as Joe’s the carrier would probably not see the need for duplicate coverage at the hearing.

      • Kate
        04/22/2011 at 9:37 AM

        Many thanks Gloria, for your eyewitness insights. I hope to make it to the trial – if it ever gets a-goin’. Your description of Judge Rankin’s style rather reminds me of Andy Griffith.

        And many thanks to Hoya for Judge 101 clarification – my inexperience with the standard proceedings of the law occasionally make me want to call “Uncle!”

        And I hope, Bill O, that there is indeed some new information surfacing.

        Regards to all,
        Kate

        • Gloria
          04/22/2011 at 12:19 PM

          Craig, as always, did a great job recreating the hearing — somehow, capturing verbatim comments (and he doesn’t use shorthand, I peeked). One thing I’d add is that Judge Rankin concluded that he expected the May 5 hearing to be brief. “I don’t expect it to be a long hearing. You’ll (just) report where you are in the case” (said to Donkor, AG’s office, and Buckwalter, defense). I interpreted that to mean that the Cinco de Mayo hearing will only be related to (what Ben Razi termed a “sideshow”) resolving the dispute, if it hasn’t been resolved by the parties — over the MPD invoking a blanket privilege, protecting police officers’ testimony, plus the defendants crystallizing (Razi’s oft repeated word) the questions to be asked of the MPD (so it’s not a “fishing expedition”). It seemed to me the May 5 hearing is not intended to include issues that the plaintiffs want to get at, namely the defendants’ stonewalling by invoking the Fifth Amendment.

          Judge Rankin left open the possibility that a phone call to him could take the place of a May 5 hearing — to advise him that the MPD and the defendants had reached an agreement themselves, without need for his intercession. Or a phone call to request more time (which he’s willing to give). So use pencil, not ink, in writing “May 5, 1:45 pm hearing” in your calendars.

          Earlier, Judge Rankin mentioned two options (in addition to the one agreed to, i.e., waiting for the MPD and defendants to reach agreement): “I could deny the government’s motion today, serve subpoenas, and then we’ll get to the point where the defendants will (plead the 5th), at which point it gets ugly.” Or “there’s a third option, but the plaintiffs may not like it. Written interrogatories can shake things up, get witnesses to talk. Maybe if they see questions, they may back away.” (A preview of coming attractions? Or not.)

          • Kate
            04/22/2011 at 4:31 PM

            Again, many thanks, Gloria – if Craig doesn’t use shorthand, surely you must!

            Do you have any eyewitness impressions on whether they’re at the point at which “it gets ugly” by Cinco de Mayo?

            And if the meeting is to be rather brief on May 5, does that mean we all have more time to drink watered-down margaritas and discuss Goya like the weather (very sorry, channeling Clio, there!)?

            Regards,
            Kate

            • Clio
              04/23/2011 at 10:48 PM

              Kate dearest, nothing of the sort: I would expect more time for full-strength tequila shots after discussing both Kahlo and Fuentes.

  4. susan
    04/21/2011 at 7:56 PM

    Since this is a law case, I won’t apologize for being a stickler and I hope in any future reference to time Mr. Razi will round it out to 80 minutes not 90 if the timeline is 10:30-11:49. But in reality, I don’t think RW could possibly have been there by 10:30 if he called his wife around 10:25 to say he was leaving the office. Presuming he was really on the way out, M St. at that point is one-way and he’d have to walk to the corner either way to catch a cab at 10:30-ish on a weekday. Who knows what the odds are of getting a cab at that time of night, but I’d put him there at least at 10:35–at least. Which really means R. Wone was there for about 75 minutes, arriving upright and alive, leaving otherwise.

    • Hoya Loya
      04/22/2011 at 6:46 PM

      Someone should try this out — take a cab at 10:25 from RFA headquarters to Swann Street. I believe the call was to Joe and not to Kathy (that call was earlier) and made from his office, not from a cell, so we’d need to allow time for him to get to the street. You may be right — a 10:30 arrival might be impossible. What impact would a later arrival have on the various timelines? Would it make premeditation on someone’s part more likely or leave less time for an assault and cover-up, making a known or unknown intruder more likely?

      • cdindc
        04/22/2011 at 8:40 PM

        But no one said he arrived at EXACTLY 10:30pm. I do believe it was said that he arrived at approximately 10:30.

        My s/o lived in the M and Hew Hampshire area for a while. I think it’s possible to grab a cab at 20th and jump onto New Hampshire. Once you go around the circle, it’s all stop signs from NH to Swann.

        I drive NH every day. It takes no more than a minute from the circle to T Street (if you don’t hit the stop light at Q.)

        It’s not far at all.

        • cdindc
          04/22/2011 at 8:42 PM

          A comment to my comment (sorry)….I don’t question WHEN he arrived. I question everything that is said AFTER he arrived.

        • Craig
          04/22/2011 at 9:41 PM

          That cab ride at night coulld be pretty quick. We had three note-takers including Gloria that so, so it helped. I think I could stand to learn shorthand.

          Rankin is the fourth judge we’ve seen, and of all of them he’s the one I think I’d most like to hang out with over root beers. He’s got an easy going style, is very self-aware and flashes some humor.

          • susan
            04/23/2011 at 12:56 AM

            Maybe the cab ride could be quicker presuming he walked to the end of either block and found a cab right then and the cab didn’t take it’s time getting there. But even so, given the 11:49 911 call he wasn’t there 80 minutes from life to not so much and that makes a diff. given were not looking at four hours or ten hours(where a few minutes diff. might not make such a huge diff.) but this is 1/9 of the time. My point is the defense isn’t really entitled to a bonus 10 min. with which to work._

          • Clio
            04/23/2011 at 10:51 PM

            Craig, come now, you mean that you wouldn’t have a dirty martini with Brook?

        • cdindc
          04/24/2011 at 4:29 PM

          I did a little experiment this afternoon while in Dupont Circle…..I was at 19th and Q, NW. In five minutes was able to get from 19th/Q to 9th and Rhode Island NW (that includes 4 traffic lights that stopped me.) In six minutes, I was able to get to Rhode Island and 3rd NW.

          • susan
            04/24/2011 at 5:24 PM

            Hi CD, even if he got there at 10:30 (which is likely impossible) that’s still only 80 minutes until 11:49. But, the experiment that would mean anything would be to go to the one-way M Street at 10:30 pm on a weeknight, hail a cab, and see how long it takes. And do that a few times to see what the average is.

            • susan
              04/24/2011 at 5:35 PM

              My overall point (again) is there isn’t a lot of time to play with so I wouldn’t cede extra minutes here and there to the scenario that just aren’t there. If he called to say he was leaving RFA around 10:25 was he still in their offices, on the way to the elevator, out the front door? In any of those scenarios I don’t see him arriving at 10:30 unless a cab swooped into view and hit all the green lights at lightning speed and got him there. And since such little time is in question I think it matters to some degree.

            • cdindc
              04/24/2011 at 7:16 PM

              Well, one could go a number of ways. One does not have to catch a cab on M street just because you work on M street. I rarely catch a cab going in the opposite direction of where I want to go. I’ll cross the street to grab a cab.

              and 80 minutes is plenty of time to kill someone.

              robert was most likely killed closer to his arrival and died over the course of the 80 minutes he was there.

              Just food for thought. That’s all.

              • Bea
                04/24/2011 at 10:25 PM

                The shorter the time frame, the less likely the defendants had time to fall into a deep sleep and thus be unable to hear the ninja intruder (yet hear the three grunts as the knife was plunged in). The Lunesta that Dylan took would’ve taken (on average, from Lunesta themselves) 30 minutes to fall asleep.

                • Clio
                  04/25/2011 at 9:01 PM

                  Why would Dyl think that it was “the boys” fighting when he initially woke up? Was Lunesta playing with his mind, or was he on to something?

                  • Bea
                    04/25/2011 at 9:08 PM

                    My personal suspicion is that he did hear “the boys” fighting earlier in the evening and it happened to come to mind when asked later. Or maybe he wanted to pin it on Victor and dethrone him.

  5. Bill 2
    04/22/2011 at 9:55 AM

    Judge Rankin should realize that Chief Lanier has more important things to do than pay attention to a murder case. When Lanier’s cops provide an 80 mph escort to get Charlie Sheen from Dulles Airport to DAR Constitution Hall for his “Violent Torpedo of Truth” stage show, it’s obvious that they don’t have time for solving crime.

    • Kate
      04/22/2011 at 10:09 AM

      Yes indeedy, Bill2 – perhaps our Chief Lanier should adopt goofy Sheen’s mantra – “failure is not an option.” (well, it’s something like that.)

      According to the WaPo this morning, the two-car escort was listed as “reimbursable” … I wonder what the going rate for a two-car police escort is these days? The Chief’s spokesperson stated that Lanier was taken by surprise at the news of this bit of silliness. They’ve got an “active investigation” into the matter.

    • sheen2
      04/22/2011 at 2:18 PM

      Winning!

  6. noaharc
    04/23/2011 at 12:23 AM

    well maybe the JUDGE is using the WICKED Witch from OZ technique as she told Dorothy–>”ALL in good time my pretty/all in good time” but again I kinda remember Hannibel Lector saying the same thing to Clarisse.

  7. Christy Love
    04/23/2011 at 8:09 PM

    I don’t know where to put this, but the house is for sale again, here are some pictures.

    http://www.trulia.com/property/1046278823-1509-Swann-St-NW-Washington-DC-20009

    • Clio
      04/23/2011 at 11:10 PM

      The “sardine can” with its less than 2,100 square feet actually makes one pine for a exurban McMansion in Loudon County — can’t it be turned into a half-way house for formerly happy hookers? Whoops, didn’t it sorta serve that purpose during part of the Bush era?

    • Bill 2
      04/24/2011 at 6:36 PM

      In one place in the ad, the Public Record lists it as “3 story” but the ad reads “five flrs of elegant living.” That 4th floor is probably how they view Sarah Morgan’s elegant living space in the cellar. There’s a roof deck but is that up above the floor where Price and Zaborsky had their bedroom? Is that how the realtor comes up with “five flrs”? I thought the roof deck was actually on the same level as the Price-Zaborsky br, built over Ward’s bedroom.

      If someone is going to buy that house, is the realtor obligated by law to tell that a murder took place there in recent years?

      • cdindc
        04/24/2011 at 7:22 PM

        From the internet: — States exempting brokers from disclosing property stigmas such as crimes, suicides or HIV status of a previous occupant: California, Colorado, Connecticut, Washington, D. C., Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maryland, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming, Virginia.

        • Bill 2
          04/24/2011 at 8:08 PM

          Thank you for this info. (I’m still boycotting BP.)

          • cdindc
            04/24/2011 at 8:32 PM

            Yay!

            • Christy Love
              04/25/2011 at 1:52 AM

              I wish someone could save those pictures. They are much better than the ones we have on this site now.

  8. JuChen
    04/24/2011 at 7:47 PM

    Why would a cab ride in April (or August, if you would try again) 2011 from RFA to 1509 Swann St NW be the same as a cab ride at night in August 2006 – without the same driver? Traffic stops, and appx. delay at the stops, would have been similar, in 2011.

    Question are: “Who was the “security guard” in the lobby at RFA the night of August 2, 2006, who saw Mr. Wone leaving the building? What time did Mr. Wone “actually” leave the front entrance? Did he see Mr. Wone get in the cab, and what time did (he think) the cab take off?”

    • cdindc
      04/24/2011 at 8:01 PM

      How tedious this is becoming. It was simply food for thought. Not trying to prove anyone right or wrong. But just for the sake of argument, in my years of living in the city, I’ve never seen much of a difference in the traffic patterns. Except at 6am before the commuters arrive. ::shrug::

      • boycottbp
        04/25/2011 at 6:24 PM

        You scored 5/11 on cab ride on bad day, probably more on good day!

        • cdindc
          04/25/2011 at 7:40 PM

          huh?

        • cdindc
          04/25/2011 at 7:42 PM

          And your syntax is incredibly familiar.

          • AnnaZed
            04/25/2011 at 8:17 PM

            I recognize that singular form of self-expression and its attendant almost complete lack of even nominal sense-making too.

            A whole bunch of spam posts have been slipping through the filter into my RSS today; so I guess that someone is busy working or something.

  9. Clio
    04/24/2011 at 8:46 PM

    “We don’t have a dog in this fight” — what an unusual choice of words for PapaRazi that that was. Isn’t the civil litigation brought by his client?

    • Hoya Loya
      04/25/2011 at 8:37 AM

      Clio:

      Razi was talking specifically about the dispute over the MPD’s assertion of law enforcement privilege in connection with Waid’s depo, the “sideshow fishing expedition.”

      He has what he needs to go to trial “now” and has no interest in grilling Waid any further, so doesn’t care how the dispute turns out — he just doesn’t want to see trial delayed by the defense over the issue when it is unlikely anything new will be learned whether or not the privilege applies.

      • Clio
        04/25/2011 at 8:54 PM

        Thanks as always, Hoya, for that clarification!

      • noaharc
        04/26/2011 at 1:30 AM

        thanks for the clarification

Comments are closed.