Latest Defense Discovery Request Hints At Defense Strategy
At the last status hearing on September 11, much of the first half focused on whether radio communications between emergency personnel and MPD was evidence that was covered under the Jencks Act.
For the non-lawyers among us, which includes the four editors here at WMRW.com,we needed to get smart on the issue.
Jencks material is evidence used in the course of a federal criminal prosecution, and usually consists of documents relied upon by government witnesses who testify at trial. The act covers a variety of materials including statements made by a government witness, police notes, memoranda, reports, summaries, letters or verbatim transcripts.
The Jencks Act provides that no material shall be subject to subpoena, discovery or inspection until the said witness has testified on direct examination in the trial of the case. In other words, emergency personnel’s statements do not have to be turned over until they testify at the criminal trial.
And with no criminal trial scheduled until May 2010, prosecution believes there is no need for them to turn this information over.
But that isn’t stopping the dogged defense.
On October 28, they sent a discovery request asking for all the radio runs that evening because they are “material to preparation to the defense.”
Their argument seems to rest on the Brady v. Maryland case, which states the suppression of evidence favorable to the defense violates due process.
It is the defense’s belief that if they do not know what is in these communications, they can not adequately prepare a defense, but further more, that the government may be violating the Brady ruling by not turning over potentially exculpatory evidence.
To this very untrained legal eye, it seems as if the Jencks Act and the Brady ruling can run in conflict with each other, and provide ample opportunity for a case to be overturned on appeal. So a cautious Judge, such as Judge Weisberg, might err conservatively on the matter.
Odds are high that this will be a topic of discussion at the upcoming status hearing at the end of the week , and the defense was getting out in front of the issue by sending the request before Friday’s hearing .
While the matter remains unresolved, it does seem to hint as to how they plan on challenging some of the prosecutions arguments.
Six specific areas they are looking at include seeking the conversations about efforts to revive Robert Wone. This hearkens back to the reason for the puncture wounds. If the defense can claim that they are due to life saving efforts, then the needle marks were not the result of a paralytic agent being injected.
Second, they are seeking communications about Robert’s condition. In the original affidavit, prosecution argues that Robert appeared to be dead for sometime. If they can put this into play by claiming that EMTs thought he was alive and tried to revive him, then it would bat back the prosecution’s argument that he appeared dead for sometime.
Third, in what appears to be a developing strategy for anti-gay bias in the investigation, the defense is seeking communications about the behavior of the defendants, as well as any of the actions of law enforcement.
This fishing expedition seems to be laying the groundwork for turning the focus of the trial away from the defendants, and towards the allegedly biased behavior of law enforcement. Johnny Cochran paging Mark Fuhrman, anyone?
On Wednesday, we look at the transcript from the September 11 hearing and what it may suggest about this Friday’s upcoming status hearing.
-posted by David
So, the defense is hoping that the radio communications will yield anti-gay epithets that will appall us all into the nullification of the (substantial) circumstantial case. How cynical and how desperate!
One oblique pronoun switch from he to she in reference to the trouple during the radio chatter will set them free forever, the defendants wish. It’s going to take more than that, Bernie!
David says: ” If the defense can claim that they are due to life saving efforts, then the needle marks were not the result of a paralytic agent being injected.”
Forgive me if this is a duplicate, but I just tried to post it and it went into the ether somewhere.
I posted the below several weeks ago. It’s relevant to today’s article.
EMTs are bound by protocol. If the defense tries to pin the injection marks on the emergency personnel, they are only proving that there ARE injection marks and if the EMTs COULDNT be responsible for them than the likely culprits are the defendants.
here’s my previous post:
cdindc
October 6, 2009 at 10:13 AM
First, Robert was dead at the scene. The emergency personal said he was dead for some time. Emergency procedures aren’t done on dead bodies.
And even if the defense tries to say the injection marks came from emergency procedures at Swann street or on the way to the hospital, it would be a relatively easy task to debunk that notion. It’s just another smoke screen.
So, a few things.
1. It has been said that “First Responders” were at the scene. That doesn’t mean who got there first, it means the level of technical expertise they have. First Responders can only give basic medical care. (But remember, Robert was dead.)
2. Emergency personnel go by standard protocol and procedures. It would be easy as pie for the prosecution to look up the protocol used that night. (But remember, Robert was dead.)
3. The District of Columbia Adult Pre-Hospital Medical Protocols Manual, which can be found on the District of Columbia government website, details emergency procedures for trauma calls. (But Robert was dead.)
4. And to make it even easier, here’s the list of approved medications ALS (Advanced Life Support) and BLS (Basic Life Support) operators are allowed by law to administer. Only THREE of them are used intramuscularly. And none of those three would be used for a stabbing victim. Let alone a DEAD stabbing victim.
Activated Charcoal BLS
Albuterol Sulfate Proventil BLS
Aspirin BLS
Atropine Sulfate ALS
Calcium Chloride ALS
Dextrose 50% (D50) ALS
Diazepam Valium ALS
Diphenhydramine HCL Benadryl ALS
Epinephrine 1:1,000 Adrenalin BLS
Epinephrine 1:10,000 Adrenalin ALS
Flumazenil Romazicon ALS
Furosemide Lasix ALS
Glucagon ALS (intramuscular) (Anti-hypoglycemic)
Lidocaine HCL Xylocaine ALS
Magnesium Sulfate ALS
Methylprednisolone Sodium
Succinate
Solumedrol ALS
Midazolam Versed ALS
Morphine Sulfate ALS
Naloxone Narcan BLS (IM) (Narcotic antagonist)
Nitroglycerin Nitrostat BLS
Oral Glucose Insta-glucose BLS
Oxygen BLS
Sodium Bicarbonate ALS
Sodium Chloride 0.9%
(Normal Saline) BLS
Terbutaline Sulfate Brethine ALS
Thiamine (Vitamin B-1) ALS (IM) (vitamin)
It is what it is. Let’s put that one to bed.
Why is the prosecution unwilling to turn all of this auditory debris over? These defense requests sound more like window dressing and “white-noise” distraction to me, unless there was something said that is politically incorrect about underwear guy, Ma’am, and Lil’ Dyl, the couple’s purported “room mate.”
Did anyone sigh contemptuously (if knowingly) at the sight of Dyl’s collection of unusual devices? Would “the Radio Runs” pick that up?
Maybe after we get through Friday’s status hearing, we’ll look at other elements of the defense team’s anticipated anti-gay strategy.
Because nothing says the holidays like playing the gay card.
Zing!
-Doug, co-editor
Has the defense team no sense of decency here, echoing a long-ago response to Joe McCarthy, our newest poster? What possible anti-gay bias was there on 2-3 August 2006; I trust that the MPD and EMTs know to check their garden-variety prejudices at the door, especially when relatively well-heeled and litigious “witnesses” are about.
So, for a million dollars, the defense team could spin innocuous mistakes, commands, and omissions into sinister reflections of the theocratic national security state. Are they going to claim that the 911 dispatcher was insensitive to Ma’am by calling her Ma’am? Are they going to attack Diane Durham for telling Joe to put something on? Are they going after Folts for not informing Mr. Price where he worked out? Is Xanten fair game for seeing through Dylan’s real-life fairy tales? What gives!
yes, i see that ms. mccarthy thinks that we want to burn people at the stake. i would much rather hold people responsible and accountable for their actions and inactions – even when it is inconvenient to do so. a novel concept lost on the trouple and so many of their financiers.
Raising the tired specter of Joe McCarthy may be the latest smokescreen of Team Price: Spag really does need a proper history lesson!
On a minor side note, if I was as well-paid as the dashing Mr. Schertler, then I would certainly spell “States” as in “United States” correctly. You cannot get good help these days, even for a million bucks!
I think it is important to note that even if any or all three of the defendants were subjected to anti-gay attitudes and gestures by any one involved in the case, it does not change the fact that Robert is dead, was sexually assaulted and murdered in their home. Having said that, I do not think that a legitimate claim is necessarily playing “the gay card”. Each claim would need to be looked at and weighed very carefully. This involves extremely serious matters in the pursuit of justice for Robert and the possible prison sentence of the three defendants if convicted. Do not assume that if true, these allegations could not do as much damage to Robert’s justice as to justice served by the defendants. I do not make light of any kind of discrimination or display of ignorance subjected to any person by people that we pay and trust to come to our assistance in an emergency.
Seems like discrimination on the part of any employee of the District of Columbia, whether it be a police officer or emergency responder, would be a civil action, not a component of the criminal trial.
Even if someone blatantly said “Joe is a f*g, he probably killed Robert,” it doesn’t take anything away from the crime scene.
And if someone is trying to say a DC employee tampered with Robert’s body because the defendants are gay, well, that’s just ridiculous.
CD,
The way I think they would play the gay card would be to assert that law enforcement held anti-gay opinions/biases(demonstrate this with previous actions and or/words of the law enforcement.) Because of this, their anti-gay bias would preclude them from looking at the situation objectively, which was displayed in their actions and words that evening. The result is this biased their investigation, therefore the witnesses credibility about what they saw or heard that evening is diminshed in the eyes of the jury. That would be their hope.
I don’t think it would come to civil action, it is just as a way to beat back witness testimony.
David, co-ed.
Any comments re EMT protocol, David?
Don’t forget how powerful the race card was in the OJ murder trial, CD. Furman’s tape repudiating whether he’d ever said anything racist was the reason for the jury believing he’d placed the bloody glove on OJ’s property. And that’s a good example of how the ‘gay card’ would be played – that the cops themselves tampered with evidence, though perhaps less obviously so. Let’s just hope that the DC jury can’t be played.
My memories of the OJ trial are pretty hazy – I was glued to my computer games – but as I remember it, Mark Fuhrman got tarred because of a fictional character he was creating with a failed filmmaker. His “badass cop” monologue got caught on tape and was used to paint him as too racist to objectively follow procedure. So everyone who watched the news back then “knows” Fuhrman is a racist, but is he really? Wasn’t it just a bit of theater?
The Dream Team’s deft handling of this boondoggle apparently contributed more than any other factor to setting Simpson free. So – is this all the Swann defense has to do? Find evidence that one or more of the responders once used homophobic slurs? When I look at all the damning evidence in the OJ case, I get pretty depressed.
So, if Diane Durham used the f-word once in anger, then it’s game over for the prosecution? I don’t think so. No, first, the f-word or the use of gay in a derogatory manner is not as taboo as other epithets. They should be, but they are not.
Racism and racist slurs are considered by the society at large to be much more devastating in their impacts, than homophobia and homophobic slurs. So, Bernie cannot hope to do a Johnnie Cochran with this material.
Plus, the very notoriety of OJ and his singular success at beating the rap means that his legal team’s strategy will never, ever be successful again. There never will be another OJ trial with its astonishing outcome. Sorry, Spag!
It is sad to think that if there was prejudice involved, it was also directed at Robert as they undoubtedly though he was gay as well. Is that why the whole investigation was so sloppy? Was the whole scene looked at as just more crazy gay drama, just another queer boy killed by his queer boyfriends, and not taken as seriously as it would have been if Robert were perhaps a female guest of her married friends?
Unfortunately for Robert, the truth may never come out. This is too ironic. I think he was stabbed and killed because they thought he was already dead, now the possibility of the investigation being handled half-assed because they thought he was gay.
You know, maybe these guys really did pull off the perfect crime.
Indeed. Don’t forget: “We do not out people,” he says. “And to reveal why we were brought in on a case would potentially out someone.”
Imagine this:
I am in a marriage that has “cooled off” but still holding together for social reasons and the occasional spark of romance. I employ a female live-in housekeeper with whom I fool around, including some dominatrix action, which my wife is not happy about but tolerates. I invite an attractive female friend from college to stay over while she is in the city on business. She found dead under similar circumstances to Robert. Does anyone think this hypothetical case would have been investigated the same way?
(And while we’re at it, can anyone see me and the wife and housekeeper all sticking together to stonewall like the trouple?)
What should be the police policy on “outing”? The truth, the whole truth, and nothing but the truth, I thought, was the goal of investigative work, so why would the police go along with someone’s, anyone’s, closet when someone has died. Brett’s stance on outing makes no sense; it’s outdated and it presumes that being gay is bad.
Hoya Loya, the answer to both of your questions is no. Can anyone imagine Mr. and Mrs. Brady and their housekeeper Alice cavorting and conspiring like this on The Brady Bunch? It’s inconceivable!
Oh, I don’t know….Mr. and Mrs. Brady did sleep in the same bed, you know…though he truly was quite light in the loafers. Even as a little gay kid, I could tell that Mike had more interest in Sam the Butcher than he did in Carol.
The Jencks Act and Brady v. Maryland provide two distinct bases for requesting information. The Jencks Act covers a witness’s statements prior to testifying and Brady covers exculpatory material.
The material being requested is available to these defendants, like any other defendants, under Federal Rule of Criminal Procedure 16(E) if the defendants convince the court it is material to the preparation of their defense. Nothing unusual, nothing sinister. Just due process of law, which is guaranteed to the innocent and guilty alike in our adversarial system of justice.
In fact, defense counsel would be engaging in malpractice not to seek the information.
That is especially so since DOJ attorneys have had some high profile lapses regarding their Brady obligations recently and the Public Integrity Unit of DOJ is being revamped and revised ethics training is being planned for federal prosecutors. That is not to say that the prosecutors here are in any way guilty of any wrongdoing. But any attorney worth his salt is not going to rely solely upon Brady to obtain necessary discovery if there are other avenues available.
Themis – Tomorrow’s post has the Sept 11 status hearing transcript. Both sides mixed it up, with Weisberg too weighing in on Brady, Jencks and Rule 16 stuff. ‘Stuff,’ I’m told is the tecnical term…
I’d hope we could’ve had the xscript sooner, but better late than later.
It’s a good read and to this legally clueless observer, seems to show Weisberg’s thought process and approach.
It’s also a good window into the division of labor among the Four Horsemen. The Spag, Bernie and Connolly seem to have clearly defined roles.
Its like a relay race: Spag runs at Kirschner/Martin, passes the baton then Bernie who takes his shots, then Connolly runs the anchor leg.
I cannot wait to see for myself if Connolly is as great as everyone thinks that he is! Thanks, Themis and Craig.
Is anyone having problems posting?
Yes. It froze up, and I had to reboot.
The other day, one of my posts disappeared after it was submitted successfully. I thought that the Editors had deemed this particular response too risque and had deleted it quietly (as is their purview), but its disappearance may have been related to these technical glitches.
I’ll immediately grab your rss as I can not find your e-mail subscription link or e-newsletter service. Do you’ve any? Kindly let me know in order that I could subscribe. Thanks.