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.

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.

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A Depo Witness is in Florida.  A Defendant is in DC?

It appears that it’s not just the Defendants who want to keep mum during depositions in the Wone civil trial.  The DC Attorney General’s Office wants to hem in the testimony of a key witness, former MPD Detective Bryan Waid.  A month ago, the AG’s office filed a motion seeking to quash a broad defense discovery request of MPD records, notes and correspondence on the murder investigation. 

The argument to quash was to protect the integrity of this ongoing investigation and the larger issue of how the MPD manages cases in the future:  Protecting law enforcement’s privilege, which includes protecting the confidentiality of sources, law enforcement strategies and accumulated evidence, outweighs civil discovery interests.  The AG claimed it could have chilling effect on witnesses, and would have a negative impact by disclosing identities of people who have given information. 

The defense subsequently withdrew their request, perhaps realizing that the chances of getting that trove of documents was somewhere between slim and fat (and Slim just left town on a southbound for Miami Shores).

Now, with Detective Waid’s deposition originally scheduled for today, the AG wants to rein in exactly what the he can speak to and filed a motion.  MPD’s Motion to Quash for the Limited Purpose of Asserting the Law Enforcement Privilege During Former Detective Bryan Waid’s Deposition as to Subject Matter Not Previously Divulged by Detective Waid and Law Enforcement.

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New Defense Witnesses  Raise Some Eyebrows

The defendants offered their witness list, and not surprising, several of the expert witnesses who made star turns during the criminal trial last year are returning.  Moreover, the expert witness list notes how the defendants hope to shore up their weaknesses that the criminal trial highlighted.  Even so, what the list does show — even if it is just brinkmanship at this point — is that the defense intends to fight the case with every weapon available to them.

While Henry Lee does not make a return to Moultrie Courthouse, his opinions will be back from the professionals at Englert Forensic Consultants — Rod Englert and Cherly Kanzer.  Englert is expected to testify that the evidence is consistent with Robert being stabbed in the bed, and with the blood flowing out of his body.  He will also take up the issue that the knife found at the crime scene was not a plant since the blood pattern evidence is not consistent with it being wiped.

For astute commenter Hoya Loya, Englert and Kanzer made him pause.  Why?  Because they are based in Portland, where so-called lead counsel for Dylan Ward, Ralph Spooner is located.  “Either they are from Dylan’s lawyer’s stable of reliable experts or on Dylan’s father’s payroll or both” and could cause credibility issues with a jury.  In case the jury is suspect of these expert witnesses, the defense is bringing heavy-weight Vincent DiMaio to back up their opinions. 

Next up is another new witness, Donald Ostermeyer, who will opine about the validity of the Ashley’s Reagant and its ability to detect if blood stains where wiped from the wall.  This is an interesting choice for the defense since it is well known by both sides in the criminal trial that the application of the Ashley’s Reagant was not properly applied, thus nullifying any of its results.  The fact Ostermeyer is on the list may indicate they feel this is an issue they will need to beat back with a trial before a jury as well as a lower threshold for a decision. More witnesses after the jump.

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Plaintiffs Continue to Work for Answers

This may be the first occasion in this case in which we see a filing that uses the word, “irony.”   

Entered this week is the Plaintff’s Motion to Compel Answers to Requests for Admission and Interrogatories.  According to Covington, the Swann Street defendants, “declined to admit, deny, plead insufficient information, or otherwise answer, based.. on inappropriate Fifth amendment privilege claims…”

In a 25 page document that includes 11 redacted exhibits (filed under seal), counsel for Kathy Wone ask for proper relief and an oral hearing to hammer out this issue that has seemed to have been front and center, without a definitive ruling, since December. 

Winter has given way to spring; the summer will fly by and and soon it will be autumn. 

The motion follows.

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Leibovitz Said No.  Will Rankin Say Yes?

A couple new Plaintiff filings hit the clerk’s office late on Friday afternoon.

The first one we’ll look at seems straight-forward enough, a Supplement to Rule 16(b)(2) List of fact Witnesses.

Had we tagged out posts better over the past 2+ years, finding information on James Plante would be easier - but we think his name first surfaced back in February 2010 on a Government list of expert witnesses they hoped to call for the conspiracy and obstruction trial. 

Plante never made it to the stand, successfully kept away by the efforts of defense co-counsel Bernie Grimm, Thomas Connolly and David Schertler.  Judge Leibovitz had a hand in that, too.

Why is James Plante familiar? 

Until reading about him in those filings, we had no idea that the DC Metropolitan Police Department had an in-house expert on S&M sexual practices.   We weren’t alone in being so naive.

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What If We’ve Hurt, Not Helped?

Of the two questions invariably asked of us over the last two years (the first: ‘Who do you think did it?‘), it was the hardest to answer.

‘What effect do you think you’ve had on the case?’ someone would ask, hopefully teeing up an answer that – however we meant it – never seemed to answer the question.

It was usually asked kindly - like a coded compliment, thanking us for our efforts to keep the case active and in the public mind.  (And by ‘us’ and ‘our’, we four have always made the point to include the entire wmrw community that grew up around this site.)

We’ve often heard how some people think we’ve “…done the Saints’ work…” (as a colleague put it to me this week) in keeping this case alive – or, as MPD Chief Lanier might say it, “…very, very active.”

But.  If…

What if we’ve not been working for the saints, but for the devils?  What if our work not only doesn’t yield a murder charge but has actually helped the guilty evade prosecution?  What if our efforts affected the trial, the investigation, or the outcome – and not for the better?  What if it would have been better had we never begun any of this?

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Defense Responds to MPD Oppo to turn over Records

On behalf of the three Swann Street defendants, Price co-counsel Brett Buckwalter and Craig Roswell have finally replied to the DC Attorney General’s opposition to turn over DC MPD records, notes and materials as part of the discovery and depo process.

In a March 1st Motion to Quash Subpoena to Produce Documents and other Information, the DC AG’s office maintained that protecting law enforcement’s privilege, which includes protecting the confidentiality of sources, law enforcement strategies and accumulated evidence, outweighs civil discovery interests. 

They went on to claim that it could have “chilling effect on witnesses,” and would have a negative impact by disclosing identities of people who have given information. 

Those 13 pages alone may have been enough to dissuade the defense from proceeding further, and yesterday, they filed their response.

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