Objection Overruled

How the Coming Battle Over Evidence Will Shape The Trial’s Outcome

No doubt many readers of this site – we’re looking your way, legal eagles – have far more experience and expertise in this subject than any of us.  Still, we’re in agreement that the brewing legal battle over what evidence can and can’t be admitted during the criminal trial will greatly affect its outcome, and we want to hear your thoughts.

Of course this is nothing new.  Anyone who has sat on a jury, or even watched a middling court-room drama, knows what’s excluded from a trial can tip a verdict – if only it had been admissible.  Already Judge Brook Hedge, ruling Feb. 26, prevented Kathy Wone’s legal team in her civil case any access to electronic communications (phone calls, emails) between her late husband and the defendants.   We can only speculate what information may be in those records that could affect the criminal case.

What follows are just three issues of evidence that may never make it into the criminal trial, and arguments that both sides may employ.

• The Knife.  As has been detailed before, the knife found on the scene does not match the three stab wounds.  However a missing knife from Dylan Ward’s cutlery collection, when matched with its replacement from the same company, proves a likely fit.  (The set box contained three tools; the other two were intact.)  Further, relatively little of Mr. Wone’s blood was found on the knife at the scene.  From the prosecution’s view, this appears to be proof of evidence tampering – removal of the actual murder weapon (it still has not been found) and replacement with another weapon from the house butcher-block.  Yet (and I’m not an attorney) I can see how the defense would find this speculation at best.  Nobody says they have the actual knife that matches the wounds; the prosecution is merely surmising that a knife like the murder weapon could have come from Dylan Ward’s room.   What other cutlery sets may have a knife that closely matches the wounds?
• The Sex Toys.  Clearly the most salacious aspect of this case for many casual observers is the large collection of sex devices, images and literature – much of it a bondage and sado-masochistic bent – found in the house.  The prosecution points to the coroner’s finding of Mr. Wone’s semen in three swab locations (genitals, exterior and interior anus) and conclusion that such evidence was “…suggestive of Mr. Wone having been sexually assaulted.”  Yet this may be an equally strong area for the defense.  Consider: there was no foreign DNA found on Mr. Wone, and (to our knowledge) no sex toys found that had any of his DNA traces.  There were no signs of physical restraint.  There were no traces found of any so-called “club drugs” in Mr. Wone (the defendants were not tested.)   Already we’ve heard the defendants argue that the MPD fixation on what could be the most titillating aspect of their private lives could in fact have absolutely nothing to do with the murder, and may at worst reflect an anti-gay bias…or at least an anti-BDSM bias.
• The Forensics.   Mike Scarcella has already addressed this, but it’s worth repeating.   While the first affidavit charging only Dylan Ward with obstruction (see “Legal Documents” tab) reads more like a conviction,  Joe Price’s defense attorney Bernie Grimm has pushed back – hard.  In this salvo fired at prosecutor Glenn Kirschner, Mr. Grimm raises serious questions about the bio-tests conducted at Swann, and on materials seized from the house.  Quoting: “The discovery I have so far, in many respects, raises more questions than it answers,” writes Mr. Grimm.  Moreover, he raises a serious legal challenge to the seizure of computers/etc. from the home where Michael Price was living – documents that prosecutors may hope links brothers Joe and Michael into conspiracy to obstruct.  And to be clear: we have not seen the complete Medical Examiner’s report (but are working on it) and have – as discussed in earlier posts – questions about the police forensic work done on this case.  These are serious questions, meriting serious answers.

There is, however, one hurdle we find difficult for the defense to clear: the near lack of blood found on the sheets, clothing, mattress, flooring, walls; anywhere in the house.  The victim himself was largely absent external blood.  This was an immediate puzzle for the EMT’s first to arrive, and soon thereafter for the investigating police.  The nature of the three wounds – one near the aortic base – clearly would produce large amounts of blood.  Blood that would flow and trickle and ooze into a hundred different places within a room, leaving its DNA fingerprint clear behind.  A defense team that can explain this, or even prevent its admission into trial, is worth every dime.

And so an appeal: for all you legal beagles out there, please help us.  Comment here, or write us privately with your thoughts as to what may or may not be allowable in criminal trial, explain why.  Tell us why we’re right, how we’re wrong, and what we’re overlooking.  We can’t pay the going rate – or at all – but your thoughts may be able to help all of us better understand the shape and nature of the case as it goes to trial.

–posted by Doug

David adds: The Defendants will seek to reinterpret the burst blood vessels in Robert’s eyes. This occurs when a person has been suffocated. The prosecution said this evidence supported its theory that more happened than the Defendant’s statements.  Yet, this evidence could also support the Defendant’s intruder theory. In their statements Joe and Victor both claim they heard no loud screams prior to the 9-1-1 call, and only heard “low screams and “low grunts” coming from downstairs.  If an intruder was suffocating Robert prior to stabbing him, this testimony could be consistent with the evidence.  The intruder may have suffocated Robert, causing the low sounds or grunts. This caused Robert to be incapacitated, but not yet dead, and was finally stabbed.

However though, the highest hurdle the Defense must clear is the lack of blood found in the bed, in the room and on the scene. According to the first affidavit, which is quoting the Medical Examiner, “The absence of any significant amount of blood from the bed, and the crisp and near pristine condition of the bed in which Mr. Wone was discovered by paramedics is entirely inconsistent with a violent stabbing having been perpetrated in that bed.” Price and Zaborsky’s statements indicate that a stabbing occurred, and that they both found Mr. Wone stabbed, yet curiously, the amount of blood at the scene is extremely limited.

Furthermore, it would be highly likely that additional blood, even just traces, would have been found in the same path that the intruder took to leave the house. Yet, the only additional blood found was located in the lint dryer (which could have been anybody’s blood) and outside in a drain in the backyard. The intruder could have put a bloody item in the dryer. It was right in the path that the intruder could possibly have taken after all. Yet, none of the Defendant’s mention hearing any dryer door open (that doesn’t mean it didn’t) and nothing was found in the dryer. If the intruder put a bloody towel in the dryer, and took it out, wouldn’t there have been a high probability that blood, even traces, would have dripped on the way to the dryer? Yet, no blood was found.

— posted by David