Is The 5th On Rankin’s Mind?

At Least The Date Is…

When Judge Rankin set the date for the next status hearing he noted that “Cinco De Mayo” was available.  Somehow we don’t think that he was intending to celebrate the Spanish holiday that commemorates the Mexican Army’s unlikely victory over the French forces at the Battle of Puebla on May 5, 1862.

But, by scheduling a hearing on 5-5, we are wishful, though doubtful, that he was signaling he would rule on the 5th Amendment issues that have become the monkey’s wrench in preventing the plaintiff from seeking additional information about what happened during those 79 minutes at 1509 Swann Street on August 2nd, 2006.

Kathy Wone’s counsel, Ben Razi, made it perfectly clear at the last status hearing that the primary information missing from this case is not the evidence from the police.  The missing information, the plaintiff contends, is the answers to the plaintiffs’ 500 questions on a wide-range of issues from the mundane such as when did the defendants first meet Robert, to the revelatory such as their “violent sexual practices.”  The defendants are not answering any of these questions by asserting a blanket 5th amendment privilege.

Now, the defendants believe the issue in the case is not the 5th Amendment privilege, but rather the missing information from the police.  MPD is willing to make their officers available for deposition, but also are asserting their law enforcement privilege over wide-swathes of evidence.  Judge Rankin noted that he is a big fan of “working things out.”  At the last hearing, the defense and MPD said they would play nice and figure it out between themselves  — as much as possible.

Rankin scheduled another hearing for May 5th.  It will probably focus on how the MPD/defense are “working things out,” but for a hearing scheduled on the fifth day of the fifth month, we can’t help but be hopeful that maybe, just maybe, he would be willing to rule on the 5th amendment issues.  We can all dream, can’t we?  For case watchers the hearing is at 1:45 pm in courtroom 517 on  — well, you already know — May 5th.

Hope to see everyone there.

— David

24 comments for “Is The 5th On Rankin’s Mind?

  1. Bea
    04/26/2011 at 2:30 PM

    How Judge Rankin rules on the 5th will set the tone of how this trial will go – and what Kathy Wone can expect to get in terms of accountability if not truthful answers. Oddly, if the defendants are given the green light to do a blanket waiver, I see no way that they’ll prevail at trial. Imagine each in the witness box claiming the 5th and the jury thinking “why in the hell isn’t he willing to say what happened to his murdered friend?”

    • Bill Orange
      04/26/2011 at 5:56 PM

      I’m with you on this. I think the defense is going to try to argue that they’re not taking the fifth because they’re guilty, they’re just taking the fifth because that’s what their lawyers are telling them to do. If I were a juror on in trial like that, I would find for the plaintiff on all counts, max out the award, and then strongly encourage the defendants to sue their attorneys for providing such an incompetent defense.

      • Bea
        04/26/2011 at 8:55 PM

        Yes – this makes for a good way to deflect discovery requests but not such a good way to avoid liability in front of a jury!

        • Also from the Post story
          04/29/2011 at 2:15 PM

          So, does that mean they’re more afraid of new evidence slipping out that might warrant murder charges, than they are of losing the civil case?

          But if that were so, why would they mount an expensive defense rather just settle? Or maybe they did offer a settlement and it was turned down? Settlement offers don’t have to be public, do they?

          • Bea
            04/29/2011 at 2:24 PM

            In a word: yes.

            I don’t think Kathy Wone is looking for a money settlement – she wants facts, and while the insurer likely offered to settle, she’s likely said no. She’ll take the award at trial, of course, but mostly she wants to find out as much as she can about her husband’s murder IMO.

            • Craig
              05/01/2011 at 8:03 PM

              We’d heard that not too long ago, a settlement offer was floated… No dice.

              • susan
                05/01/2011 at 9:30 PM

                What a joke that is really. Maybe it’s pro forma to offer a settlement, but more than anything, what would be priceless to KW and the Wone family would be answers as to why R. Wone was murdered.

  2. 04/27/2011 at 7:13 AM

    Agree; and to avoid the only possibility – not probability – of keeping their asses out of jail.
    On how the judge rules here on the 5th amendment claims as to each of plaintiff’s questions (a tedious task) and his precise jury instructions as to inferences to be drawn from defendants’ refusals to answer will depend not only civil liability but whether the government garners enough information to convict down the line. Those damnable inferences!

  3. 04/27/2011 at 7:27 AM

    According to the judge, he’s “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.”
    As I said above, a great deal is riding on his being “ready and able.”

    • Bill Orange
      04/27/2011 at 8:35 AM

      He’s basically got three options:

      1. The defendants don’t have to answer ANY questions.

      2. The defendants have to answer ALL questions.

      3. The defendants have to answer SOME questions, and he will rule on each question individually.

      Numbers 1 and 2 are easy calls, while number 3 will generate a significant amount of extra work for the judge. I think that the defense desperately wants to avoid number 3, which is why they objected to so many questions in the first place–the more questions that are in dispute, the less likely the judge is going to want to handle them one-by-one. I’m guessing he’s going to go with option 1.

      But as I’ve argued before (and lawyers, please feel free to agree or disagree here), there really isn’t a fifth amendment crisis here, and the judge’s ruling on this is moot from a fifth amendment perspective. The fifth amendment protects you from testifying against yourself in a criminal trial. Once you’ve invoked it in a situation like this, I can’t see any way that your answers could be used against you in a criminal court (on the charge of murder, anyway), even if the judge in the civil trial overrules you. So if the judge were to go with option 2 (which I seriously doubt), and the defendants all said, “Yes, we killed him, we each stabbed him one time,” there’s really no way that this statement would ever make it into a murder trial–it would be suppressed on fifth amendment grounds.

  4. boofoc
    04/27/2011 at 12:56 PM

    BillO: Disagreeing at your invitation.
    The 5th amendment protects us from any coerced statement that may tend to incriminate us whether in a criminal, civil, administrative or any other governmental proceeding. The keys are the coercion and the incrimination. Whatever any one of these defendants says under oath in this civil trial very positively may/will be used against him in a criminal proceeding, and once he has made the admission, he has waived his 5th amendment right as to that admitted fact forevermore. That’s why all the maneuvering. The ticklish point is the “tend to.”
    A ruling that they don’t have to answer ANY questions would IMHO be reversible error inasmuch as it deprives plaintiff of the relevant, non-privileged evidence she needs/is entitled to to prove her case. A ruling that they have to answer ALL questions would violate their constitutional rights; some answers (such as the one you posed) would quite obviously tend to incriminate. If sanctions were imposed on their refusal to answer such questions: reversible error again.
    Thus, IMO, the judge will have to consider and rule as to each question that the parties cannot agree is relevant and will not lead to incrimination.
    Clearly, all may feel free to disagree with this. Freedom of speech/expression/opinion.

  5. Michael
    04/27/2011 at 2:54 PM

    I will be drinking Corona with lime, hiding behind the 28th amendment: the right to PARTY. Also, I’m from the future, where this amendment actually exists. Don’t wanna mess up this timeline though, so I’ll let this trial play out as it may.

    But ya know guys, if I were in the trouple’s position, I wouldn’t answer any questions either. Questions make my brain hurt!!

    • Hoya Loya
      04/27/2011 at 4:20 PM
      • susan
        04/27/2011 at 8:24 PM

        That was so funny, Michael. Maybe the 27th amendment is the right to not have one’s time wasted in court by stretching out arguments re the 5th, passage of which led to the 28th amdt.

        Hoya, the Pittsburgh ninja was a noisy one–heard by neighbors and others–not one with a body silencer.

        • 10/10/2014 at 9:23 AM

          That same amendment is the one which will one day let me picekt Fred Phelps’s funeral. I intend to be carrying the biggest God Hates Fred Phelps sign of anyone there. See you on CNN!

          • Bill 2
            10/29/2014 at 6:02 PM

            You’re too late to picket Fred Phelps’ funeral. He died in March.

  6. The, "Only," Bill
    04/28/2011 at 6:59 PM

    Yes, David, it’s a dream. There will be no discussion of the 5th amendment on the 5th and probably no discussion at all other than the defendants counsel and the MPD stating they did not come to terms on such short notice and they need Rankin’s help.

    Or, they may say, they did resolve the issue and he will say, “Wonderful.” Meeting over. That’s it. That is how business is conducted for you folks who do not fully understand the court system.

    So, all of you obsessed people, I wouldn’t clear your schedule to attend the hearing on the 5th because it’s going to be another non hearing. But naturally everyone here will discuss it at length over the next 7 days.

    Que Sera, Sera.

    • cdindc
      04/28/2011 at 7:08 PM

      Hi Rich.

      • CDinDC
        05/02/2011 at 2:26 PM

        give it up.

        • CDinDC
          05/02/2011 at 3:44 PM

          This post was in reference to a offensive deleted post.

  7. Clio
    04/28/2011 at 11:14 PM

    I heart the historical references, David, but one would be wrong to channel here the disillusionment and disappointment that ultimately came from the twentieth century’s Mexican Revolution. To no one’s surprise, Rankin will be mercifully efficient, and he will rule on the side of the plaintiff with regard to the Fifth Amendment — just sayin’.

  8. William
    05/02/2011 at 10:53 AM

    cdindc try William Constable. Not Rich.
    Not sure who he is. The Ninja Intruder?
    Just ask your Editor buds. I’m sure they converse with you offline.

  9. Upset
    05/02/2011 at 11:03 AM

    I have not been following for awhile, but am still deeply upset by this crime.

    What are the “violent sexual practices?” that the three residents of Swan street participated in. I’ve alway suspected that the three stab wounds to Mr. Wone were done by each of the three Swan Street residents as an act to solidify their 3-way relationship.

    I hope the 5th amendment plea works against them.


  10. Bruce Baxter
    05/03/2011 at 12:55 PM

    1509 Swann Street

    I thought i read on this site sometime ago that the house was bought by someone, possibly with child, who was not committed to making it a full time home, but bought it as an investment.

Comments are closed.