New Documents, New Questions, and Possibly New Strategy
We’ve had some time to go through the prosecution’s request to deny further discovery by the defense, and have even more questions now than yesterday. Among them: why are we only learning some of this information now? To quote poster Bea: WTF?
On Thursday we’ll be looking ahead to Friday’s hearing, and what’s at stake. But given the massive question dump that occurred Wednesday, we’ll sift through the new evidence laid out by the government, and the serious questions that arise.
High among them: is this evidence of sloppy work, or is the prosecution playing head-games with the defense?
The answer may be a little of both.
1. Under “Tab A”, we learn nearly right off the bat (item #2, page 2) that
“FBI examiners have also tested a stain found on the comforter recovered from the bed in Dylan Ward’s bedroom (itemd #65). That stain tested positive for blood and DNA testing will be conducted in an effort to determine whose blood was deposited on Dylan Ward’s comforter.”
First – WHA? As shocking that we’re only learning now that a comforter in Dylan Ward’s room had blood on it is the fact that DNA testing has apparently not yet been conducted. This is further underscored in item #3, where we learn that lint from the dryer and liquid from the rear drain have only been submitted to the FBI for possible testing, and the prosecution is “…awaiting further information…”
While not familiar with the inside of such an investigation, it strikes us that either such tests have been conducted – and the prosecution is just holding their cards tight to the vest – or this suggests sluggish, perhaps sloppy work that may end up altering the trial’s outcome.
2. Next, the government reports forwarding to the FBI the remaining blood sample from Mr. Wone
“…to explore the feasibility of further toxicological testing. However, due to the possible issues concerning the sample being entirely consumed by further toxicological testing, we have asked examiners to hold off and any such testing pending an Innocence Protection Act hearing in the case.”
This seems to answer two questions we’ve long had; yes some samples of Mr. Wone’s blood were saved, and no, the D.C. Medical Examiner does not have additional samples in storage. I’d ask legal beagles to chime in here on the Innocence Protection Act – what is this law, and who is likely to have filed suit?
3. Item #6 leads us to believe that detectives on scene discovered Robert’s RFA Blackberry and noted two email messages: one “purporting” to be from Robert to Kathy at 11:05p, saying he’d just finished his shower and was going to bed, and a second, time stamped 11:07p, to an associate confirming the next day’s lunch.
This makes little common sense. First, is it likely after his 9:30p phone conversation with Kathy, confirming his evening plans and ending with “I love you,” that he would send such a trivial email? People tweet about less consequential stuff.
Second, given the latest time (11:35p) for Victor’s reported scream at discovering Mr. Wone’s body, compared with Dr. Goslinoski’s report that Mr. Wone had been incapacitated, assaulted, stabbed – and continued to live for some time – all by an intruder in 23 minutes? (And don’t even mention the apparent freshly washed condition of the victim and defendants.) This just does not seem within the bounds of physical possibility.
And third, while said Blackberry now appears to be missing and not have been imaged (copied) by the U.S. Secret Service, we wonder whether it was dusted for fingerprints – or if the exploration by Detective Waid was conducted without gloves, ruining any other physical evidence that might have been on it.
There are more questions, but we close where the prosecutors end, by saying
“…the government will be seeiking to introduce defendant Price’s profile on the website “ALT.com”, in which he lists his “activities enjoyed” as, inter alia, various forms of “Torture,” including “Electrotorture…Pain…Sadism…”
We’ve often wondered why Kirschner got so far out in front on torture and electrotorture at his December news conference, using very graphic and unsettling language with Robert’s family at his side. If there were any doubts before whether the BDSM lifestyle of Joe and Dylan were to play a role in their upcoming trial, we now have the answer. Game on.
– posted by Doug
It has been said repeatedly that there was $250,000 in damage done to the house while collecting evidence. What were they collecting?
Did Joe “the intruder murdered the dude in the office/guestroom” Price happen to drag a slaughtered calf throughout the house earlier in the day??
ExSwann, the investigators will remove flooring if they have reason to believe blood evidence could have seeped through the flooring. I posted this a few weeks ago…..blood is fluid. If it puddles on the floor, it can seep into cracks and crevices. Even if the floor SURFACE is wiped clean, blood could still seep where a cleaning rag could not reach. Especially hard wood flooring. They don’t just take things that they KNOW had blood on it, they take what they believe may possible contain blood evidence that can’t be seen readily with the naked eye (i.e., flooring, drains, doors, etc.) DNA swabbing can uncover a lot we can’t see.
I understand that CD. However, $250,000 is A LOT of hardwood and A LOT of walls and A LOT of trim and A LOT of stone and A LOT of, well, whatever …
The 3-some gets no pity from me on this.
I don’t think it was done for the joy of it.
And besides……..home-owner’s insurance. probably covered it.
And whose estimate was $250K? Joe Price’s? That financial information would have had to come from someone inside the house. So, considering he’s possibly lied about everything else, why not lie about that too?
Have you ever had work done by a DC contractor????
Ditto that!
The police need to tear everything apart for evidence. We had a local case here. The guy videotaped raping and killing his girlfriend. He then placed the video’s somewhere beneath the carpet. He was found innocent. The new homeowner replaced the carpet and found the video tapes but it was too late.
That sounds like the Mel Ignatow case. He even admitted he did it because he knew they couldn’t retry him.
That was in the mid-west …
American Justice
Ha! Good point, Paulette!
I still have a very hard time believing anything they say. From Robert’s arrival time, Victor’s arrival time, Victor’s scream, to the price of repairs…..everything they say is suspect to me.
The police spent a long time removing evidence – days, if I remember correctly. They were going at it with saws etc, took out part of the stairs and so on. They removed a lot of flooring. Maybe even parts of walls (drywall). In short, they didn’t just remove items from inside the house; they removed parts of the house itself.
Good god, it looked like they were being thorough!
Maybe MPD hired subcontractors to do the removal, and they did a good job; then once the subcontractors delivered to the MPD, the usual incompetence and apathy were brought to bear.
Timeline question – did the Grand Jury tour the house before, during, or after it was ripped apart? Just curious.
Sorry, I can’t remember…
I’ve read through both the defense memorandum in support of their request for discovery, and the prosecution response. Not being a lawyer, I’m having a really hard time telling what in all of it has merit and what’s just legal posturing–and that’s true on both sides.
It’s also really hard to make sense of the prosecution’s line-by-line explanation of the defense request, without having the actual defense request. Some of it is “produced”, some is “not discoverable” (why not?), some is “not in the government’s possession” (should it be? the defense thinks so, unless again that’s just posturing)….
The extent to which BDSM plays a role in the trial will be interesting to see. The defense, of course, claims that “[e]vidence of sexual conduct of the Defendants, like evidence of uncharged misconduct, is both not relevant and likely highly prejudicial.” I think there’s an argument to be made on both sides of this, so I look forward to seeing how the judge rules.
As a lawyer here (but note that I do not litigate), I imagine the defense has already written and/or is hard at work writing its motion to exclude as evidence any mention of Joe’s Alt.com profile on the grounds that its prejudicial effect on the jury outweighs any probative value.
Of course, if the prosecution can show that the evidence indicates that BDSM activities similar to those expressly liked by Joe on his profile were executed on, or with, Wone, his Alt.com profile would seem highly probative.
The liberal inside of me agrees here. I would hate for my sexual past to be dragged out if I were on trial for something.
However, doesn’t the sexual assault of Wone make this a necessary road to go down?
I am confused about one thing though: Is the defense trying to confuse things by saying there was NO EVIDENCE of Wone being subdued?
It’s a defense attorney’s job to refute evidence.
The defense may also throw out a motion two to exclude witness and/or to dismiss the case for some ridiculous reason, as well. All pretty typical pre-trial stuff.
Necessary unless its prejudicial value outweighs its probative value. It is, as is suggested by IKWDI, highly probative. But it is, as the liberal in you notes, also highly prejudicial. (If the jury hears “Joe Price was into consensual kink” and will based on that fact alone conclude “He must have killed Wone” before evaluating any other evidence, is it fair to provide them with that fact?)
As for what the defense is trying to do, well, CDinDC is right; it’s very much the role of the defense to refute evidence. It seems to me–and again, I haven’t read the coroner’s report–but it seems to me that the defense isn’t just saying “there’s no evidence”, but rather “the expert in the case concluded that there was no evidence”. So that’s not trying to “confuse things”, that’s an attempt to refute a claim with more facts.
I have been puzzling about this for a couple of days. The question of how much one’s sexual past should be relevant is a thorny one (rhymes with horny). After thinking about it I came to this conclusion: that it is really only relevant to the extent it shows a network of contacts. If it shows a network of people who have done creepy things then perhaps it is relevant. If it is just personal trysts then it shouldn’t be. I thought of this today because I happened to get a flyer in the mail from the very same business owned by the creep who stalked my friend, that I mentioned earlier in a post. Besides looking like a desperate ploy for business by this nutcase it reminded me of something further. That if you do business with people they might be willing to assist you in your nuttiness or cover it up. (The little creep has got a woman on the flyer when it is the guys who are the focus of the nutty obsessional actions) Joe Price had a lot of contacts, and like the neighborhood stalker, he may have used them to both hide and continue his crime. In Price’s case he certainly has gained a lot of understanding from all sorts of people really should have known better.
Oh, and: a few observations about the new view of the timeline….
With respect to the former point, I don’t understand why that email would be so unusual; if he’d last spoken to her before leaving work, then the email is a kind of “got here without a problem, see you tomorrow” thing.
But as to the latter…yes. As has been the case about so many things, the timeline doesn’t really make sense for an intruder; but it doesn’t really make sense for an “inside job” either; really, it just doesn’t make sense. Is that because the defendants are lying about the timeline? Or because the prosecution has evidence that could make sense of it? Or because the murderer was a sorcerer with the ability to stop time? Or…?
I know a lot of people here think I’d be thrilled to see the defendants go free on a technicality, or because of prosecutorial misconduct. That’s not true, in part because I continue to have no personal stake in the outcome. But it’s also not true because I’d rather not see the case dismissed and the murder left unexplained (until the Discovery Channel does a one-hour special about it five years from now); I’d rather understand what did happen.
Lance, any thoughts about the relevance/implications that the 11:05 and 11:07 emails were typed but “not sent” (according to the Exhibit Notes – but not discussed in the news story)?
I wish I did have some thoughts on it. As it happens, I don’t even have a Blackberry. Could someone other than Wone get to his email and type an unsent response? Could someone other than Wone send a response? If the answer to the former is “no”, then it certainly sounds like it was Wone who wrote the emails. If the answer to the latter is “yes”, then it’s not clear why someone trying to establish an alibi, or trying to muddle the timeline, wouldn’t go ahead and send the emails.
There’s also a lot to know about the email that wasn’t to his wife. If it was a reply to an existing email that said only “yes, see you then”, then anyone could have typed it. If it was a fresh email saying “Don’t forget, we’re meeting for lunch tomorrow”, then only someone who knew Wone’s schedule could have typed it (presumably not an intruder, but possibly also not the defendants–I certainly don’t know the lunch plans of any of my friends).
Most people with employer-provided blackberries (as appears to have been the case with Wone’s blackberry) run Outlook email, which also includes a calendar function. So it would not be suprising if this capacility wason Robert’s blackberry also. so, presumably, the defendants could have accessed the calendar, seen that Robert was scheduled for lunch the next day and then sent a fresh email (such blackberries also allow users to access the individual’s Outlook address book). This would, of course, take some time to do, so who knows…
woops… “capacility wason” should read “capability was on”
And it would be in the defendants best interests to “tighten” the timeline.
Agreed. And my guess is that at least Joe was VERY familiar with these types of devices given that he almost certainly also had a blackberry at the time, as provided by Arent Fox (this was before the advent of the iPhone).
A Blackberry can be configured to require a password to access. If none was needed anyone could scroll through the messages (or calendar) and sent an email. But it sounds like the two messages found on Robert’s were saved as drafts, which also requires a step or two.
Unless Robert was a very methodical and rigid person, doesn’t seem like something most people would do. Prepare in advance a 1-2 line email to the “wife” saying that they showered and were turning in now?
Sounds like something Joe Price would do, given his reputation for being so “in control.”
(Even the affidavits indicate that he seemed to be speaking for everyone the night of the murder.)
Just out of curiousity…..I’d love to know if the email said “I love you” at the end.
If it did….I can’t imagine Robert would have typed that in advance.
Did someone once say “The bottom who was the top”? Who was that?
That was me…..I said Joe topped from the bottom.
I know dear!
and I liked the “It’s a defense attorney’s job to refute evidence” post earlier too!
Ah, gee…now you’re making me blush. LOL
An easier way of saying the same things is that a lot of bottoms want to have their cake and eat it too. That’s why I’m sure they must have gone to a church –it’s all about having your cake and eating it too. Does anybody know where they went to church?
Victor used to attend a big church on in DuPont Circle before he met Joe. I remember sitting beside him once.
National City Christian Church?
If Robert received and sent legal emails on his Blackberry, he should and probably did enable the lock function. The reason being that you have a duty to protect your client’s confidential legal communications and your work product. If you lose your Blackberry, you don’t want people to be able to access emails containing those communications info. For that reason, my Blackberry goes to lock after 3 minutes of inactivity. It’s a pain; but it also is a professional ethical obligation.
At paragraph 6 in the Justice Department’s letter to defendant’s counsel, it says “detectives recall upon viewing Mr. Wone’s blackberry on the scene….”. This leads one to believe that the blackberry was UNLOCKED, as the detectives would not have had a password, and probably wouldn’t have been able to obtain a password that quickly.
It seems fewer questions are answered and only more come to the surface.
It benefits many parties – especially the defense — to now raise lots of irrelevant silly little questions. Rather than to focus on vastly more important, situations and evidence.
Huh. See, I knew neither that Blackberries run Outlook nor that Outlook has a calendar function. So that makes it sound like the emails could be either genuine or forged.
Though it’s worth noting that if the emails were forged, the coverup would have to have started at 11:05 pm, suggesting that the deed was already done by them. Talk about shrinking the timeline!
Things could have begun as early as 10:30….or earlier if Robert arrived before that. 10:30 is when the defendants say he arrived….and we all know that you have to take what they say with a grain of salt.
Thank you. First time at that house? Wone took a cab from downtown and was there in 5 minutes.
Wone had been a guest (not overnight) at 1509 numerous times.
But taking a cab from downtown certainly would add a few minutes to the timeline.
– Michael
Oh, I thought he had only been a guest at the hill house and that he hadn’t yet actually been to Swann …
Michael, are you 100% about that? I could have sworn I read it was his first time staying at the house. In fact, they had to show him the guest room and the shower.
On a hot and oppressive August evening in DC, it would sound like a reasonable option too.
As a side note, co-editor Michael found the full text of (2004) H.R. 5107; what eventually the “Innocence Protection Act of 2004.”
I raised the question in the post of what the relevance of pending Innocence Protection Act suit may be.
Again, not being a lawyer I may be off. However having read the text, the Act is clearly designed for those previously convicted of state or federal crimes – notably those facing the death penalty – allowing for re-testing of evidence for DNA, with an eye to reversing convictions.
However, there is a provision, Chapter 228A, Sec. 3600, (b) (2), called the Preservation Order. In essence, the order is to preserve “…specific evidence…”; namely, enough blood sample.
If there is only a small amount of Robert Wone’s blood remaining, and the necessary DNA tests would use up that sample, this could create some problems.
Again, just a theory. Welcoming others’ thoughts.
– Doug, co-editor
“Other acts” evidence cannot be introduced to show “propensity” (he did it before; he’s done it again). But it can be introduced to show knowledge, opportunity, absence of mistake or accident, motive, intent, modus operandi, and probably one or two other things that I can’t recall since I don’t have 404(b) in front of me. If I were the prosecutor, I would argue that it goes to the issue of knowledge.
Under Rule 403, other acts evidence that is relevant and admissible under 404(b) can only be excluded if the prejudice to the defendant substantially outweighs the probative value. I have never practiced in DC, but the four circuits in which I have practiced tend to view Rule 403 as a rule of inclusion, not exclusion.
I am sure the defense will file a motion to exclude the profile. It would be malpractice not to. Unless the issue is decided by a very fair and/or cautious judge, though, the motion will almost certainly be denied.
As to discovery, some things have to produced upon demand, some things may be withheld until trial, some things may never be produced because they are not favorable to the defense and no rule, statute, or constitutional amendment dictates production. The feds don’t have an open file discovery system, at least it appears to be the case in DC and is the case where I practice.
I am working on an arson case right now where the government is refusing to turn over underlying scientific data supporting an expert’s opinion that an accelerant was used to start or spread the fire. The expert does not work directly for the government, and the government is saying that the info is not in its possession.
Although I haven’t given much thought and don’t have enough info to make an informed opinion, I think if I were Zaborsky’s attorney, I would file a motion to be tried separately from Ward and Price. But that’s just a musing.
Themis, thank you for that comprehensive and thoughtful post. How much do we owe you? $700/hr?
Ditto what IKWDI said. Thorough post. I hope all read it.
I only represent indigents and always have. A person’s right to a fair trial should not depend upon her financial status, though it often does.
To respond to an earlier posting, both sides posture. It’s litigation and, like poker, involves strategy not just the mechanical application of rules. Both sides want the public to accept their narrative, which is why the facts sections in the respective motion read so differently. But there is nothing wrong with a defendant asking for anything, discovery, exclusion of evidence, dismissal, etc., to which he may be entitled. Our adversarial system of justice would not work properly without a vigorous defense.
Themis: Thanks much for your contributions! Please stay with us as things unfold.
Might you be able to explain the jurisdiction of the FBI and Secret Service being involved with the case? Only recently did I read on this blog that the FBI had a tent on the block for a week, but it was noted in official documents that a Secret Service agent was used to go through Price’s office computer, and recently their involvement (or lack thereof) with Robert’s Blackberry.
I might be wrong but I think that because the DC government so woefully underfunds the MPD, investigative and evidence work gets farmed out to the FBI and USSS. I recall hearing that there is no DNA lab for MPD use, so these things are turned over to the FBI lab for analysis. Craig, ed.
You are correct Craig. A Secret Service agent/friend confirmed this for me. He works at SS headquarters and is going to ask about the phone today. He did say that the SS performs duties as requested by MPD. The phone thing could be as stupid as MPD not checking a box on a form requesting imaging …
The FBI apparently is swamped by requests from around the country with outdated evidence recovery/labs/storage situations similar to ours. The FBI has a huge backlog of requests (DNA testing included) and seemingly gets around to testing, etc. as the case progresses on an as needed basis …
Even if the unsent emails were recoverable, can’t the cellphone records be subpoenaed? The phone company and email carriers may still have the records.
Email on the mobile phones can be sent through a variety of ways.
Many companies have their own servers to manage and integrate the desktop email with the mobile email. In that scenario, if the company runs a tight IT operation, all the email should be available on a back-up. Of course the back-ups may be purged after a defined retention period.
The mobile carriers and ISPs also host servers for email. That enables using a web based email account or a carrier email account on the same device. Smaller companies often rely on this set-up so they do not have to manage servers and back-ups. In this scenario, emails should be available on the carrier’s back-ups, but may also be deleted after a defined retention period expires.
I do not believe that the government mandates a specific retention period for emails managed by the carriers or ISPs.
Any jurisdiction can call on the FBI or other federal agency for assistance.
As Craig points out, the feds generally are better trained and better funded than local law enforcement agencies. That’s one reason the FBI has been heavily involved in the Caylee Anthony murder investigation.
In addition, DC is a federal enclave subject to federal jurisdiction, though I believe that there are statutes about when a case goes directly to federal court versus DC superior court. In any event, the case is being prosecuted by the United States Attorney’s Office, a federal agency. Feds like working with feds.
As for the defendants being granted bail, the Constitution specifically forbids excessive bails. The defendants here are not charged with a violent crime and there has been no evidence presented that they prevent flight risks or are a danger to themselves or others. Accordingly, the court was pretty much required to grant them bail. Being out on bail, they are free to associate with one another. No law prevents co-defendants from having contact with one another. If there were such a law, it could be argued that it violates the right to freedom of association granted by the First Amendment.
Did the defendants have to turn over their passports? I thought I read that somewhere.
yes
Joe could have jetted off to another country and lived the life of a submissive concubine.
Oh thanks – that just created a limerick in my head! (big grin)
Thanks to all for the insight re: FBI and Secret Service. I had wondered if Joe and Robert’s professions and work affiliation (and client confidentiality) had anything to do with the S. Service involvement.
Being an attorney wouldn’t garner any special treatment by the SS.
A in A. I wish you had shared your limerick with us. It likely would have been more insightful than much of the preceding discussion on this thread has been.
Just one more thing. Technically the profile is not 404(b) “other acts” evidence because the behavior in it is completely lawful and 404(b) applies to prior “bad” acts. Hence the footnote in the government’s pleading. But it likely will be analyzed in a similar manner, and Rule 403 applies to all relevant evidence.
Great stuff Themis. Thanks for adding your legal horsepower here.
-Craig, ed.
I hope Themis contributes on a regular basis!
Seconded!
Ditto
Please someone: Why did the judge permit all 3 affluent defendants to live together under house arrest rather than incareration – or I did misread previous info?
Crowded jail
[…] of the legal jousting occured over Mr. Wone’s still apparently missing Blackberry. Judge Weisberg also said at this point he was not inclined to rule on behalf of the […]
[…] focused on Robert Wone’s BlackBerry recovered at the murder scene. We learned this week that US Secret Services failed to “image” it’s contents. In the government’s response to the motion to compel discovery […]