"This Was Not A Good Day."

A New Judge, And A New Attitude, In Moultrie   >> New pic added

Long time Wone observers had become accustomed to the somewhat folksy ways and relaxed pace of Judge Fredrick Weisberg.   Whatever else learned from today’s status hearing, it was obvious that new Judge Lynn Leibovitz came ready to rumble.

Dylan Ward, Victor Zaborsky and Thomas Connolly

“I’m not inviting arguments, but I’m ready to hear them,” she began, setting the tone for what would be a fast-moving, and eventful hearing.  Gaveled in at 2pm, Judge Leibovitz began ready to rule on the defendant’s Joint Motion to Dismiss Counts One and Two of the Indictment.  

Robert Spagnoletti for the defense, and AUSA Glenn Kirshner for the prosecution, took Leibovitz’ invitation literally, jousting on whether the 17 overt acts detailed in the superceding indictment meet the legal definition of conspiracy and obstruction.

The defense strategy has long been not to argue the factual basis of those acts, rather to claim they simply don’t rise to a sufficient level for the government to bring charges.  “There is no case,” said Spagnoletti, “…the government would have this court believe defendants can be questioned without any representation, and then be charged.  Charged for not confessing.”

The government, and increasingly Judge Leibovitz, would have none of it.  “This is a sufficiency of evidence claim with lots of window dressing,” said Kirschner. 

Spagnoletti pressed forward.  “We feel very strongly…”   “I noticed,” shot Leibowitz, to the amusement of the court.  Arguments invited and offered, Leibovitz said she was prepared to rule.  Not just rule, but reading her entire opinion into the record; she went on at great length, a filibuster.  “On the motion to dismiss, I find the defendant’s argument meritless and should be rejected.”

The defendant’s demeanor become solemn; Victor and Joe seeming as though the air was being let out of them, and Dylan expressionless as always.  Defense counsel as well; you could see this defeat on their faces.  The judge’s opinion was thorough and definitive, even referencing basic legal definitions and case law (see Braverman v. U.S., 317U.S.49)  while noting the defense’s basis for argument were clearly pulled out of context.  Leibovitz reached back all the way to 1942 for the Braverman ruling.  Paging Chief Justice Harlan Stone!

Twenty minutes and already a ruling?  Not in Weisberg’s court.

Next up, the defendant’s Motion for Scheduling Order.  “Seeing as you haven’t been able to agree on a schedule, I’ve made one up for you,” began Leibovitz.

For months both sides have pointed fingers, accusing the other of withholding evidence, test results, or experts they intend to introduce at trial. 

Assistant U.S. Attorney Patrick Martin said “…about 90, 95 percent has been turned over to defense,” adding they expect additional findings on some fiber testing (on fibers found on the knife, towel, and found on an article of Robert’s clothing), some “quasi-reconstruction work” being done by the government’s blood spatter expert, and – for the first time we’ve heard – and potential testimony from an anesthesiologist.

Ward defense counsel David Schertler tried to again pick the fight, accusing the government of having the case for more than three and a half years.  Leibovitz would have none of it.  “I’m not interested in who’s done a worse job in disclosing.  I’m not cutting off scientific inquiry.”  End of argument, with the coda that the government will turn over all that it currently has to the defense by February 5th, and the defense will do likewise by February 26th. 

Item three: the defandant’s Motion to Exclude Uncharged Criminal Conduct.  Judge Leibovitz offered she saw these fitting into three rough categories: criminal conduct that happened the night of the murder, criminal conduct that happened anytime other than that night, and legal conduct she called “…the other stuffs, off the four-corners of the indictment.”

Again arguing for the defense, Schertler in essence argued that prosecutors now need to lay out the specific theory they intend to bring at trial, and how they are positioning Robert’s murder.  Paraphrasing now, Schertler asked a question Leibovitz herself posed, asking whether the government will say the defendant’s committed the murder, another person committed the murder, or something in between.

Leibovitz had a nuanced perspective, noting the defense was certainly entitled to know the general theory and charges prosecutors intend to bring regarding other uncharged criminal accusations.   However she was reluctant to freeze the case in amber, noting that new evidence and theories can develop even up to the beginning of the trial.  “Heaven only knows what we’ll see in this case,” she observed.  Well said. 

In the end, Kirschner agreed to turn over to the defense by February 5th the general outlines of what criminal accusations the night of the murder will come up, with Leibovitz then setting February 26th as the deadline for other criminal accusations.

But as to “…the other stuff…”, Leibovitz was clear.  “I’m not doing that,” she said several times; “The government will not be held to a checklist.”   She noted there was no legal requirement for the government to disclose what sorts of legal, but potentially prejudicial, issues it will raise at trial.  She did note the more, and more incendiary, issues that first arise mid-trial can bring more conflicts – something the government may not want in front of the jury. 

But as to Schertler’s request to know what sorts of “legal…prejudicial…” issues may come up, no dice.   Legal, prejudicial? Could this mean the Price-Ward BDSM relationship, alleged drug use, and other past behavior?

An 8 minute ex parte discussion followed; first with all counsel, then with just the defense team.  Schertler asked that the bench conference be (temporarily) sealed under 6th Amendment infringment; Judge Leibovitz agreed.

There was no other business at hand other than to set the date of the next status hearing.  Both sides agreed on Friday, March 12 at 2:45pm.  Judge Leibovitz gaveled out at 3:08pm.  She’s all business.

The Scene:

The hallway was crowded since right next door, Washington Wizard Gilbert Arenas was copping his plea to weapons charges. 

Members of the Wone family were first to arrive.   Attorneys on both sides filed in along with the defendants, all three once again dressed in grey suits and in seeming good spirits. 

Price, coming in solo, was seen confering with Ward co-counsel Robert Spagnoletti in the hallway before the courtroom doors were opened.  Ward and Zaborsky arrived together a few minutes later and immediately split up to tend to separate flocks of well wishers. 

Zaborsky, in an amiable mood, held the courtroom door open, even for us.  All three mingled before the gavel and then took their seats with Price in between Ward and Zaborsky.

For the defense, the chores were handled exclusively by Ward counsel Schertler and Spagnoletti.  Zaborsky’ counsel Thomas Connolly seemed like a bystander this afternoon.  At  one point, Price counsel Bernie Grimm; his colleagues were huddled at the bench for the ex parte, seemed least engaged as if eavesdropping on the conversation.

At the conclusion of the hearing, as usual, the three defendants approached the court clerk and confered with her for a few minutes.

On the way out, gathering in the hallway, all three defendants exchanged greetings, hugs and kisses with their supporters.  Price was overheard asking one of them how things were going.  “Better for me,” the friend sheepishly admitted.

The defendants departed through separate exits; Price again attached to Spagnotletti’s hip left from the north side and past the gaggle of reporters and TV crews assembled to cover the Arenas hearing.  They didn’t so much as get a second glance from any of the journalists.

Dylan Ward and Thomas Connolly

Together, Ward and Zaborsky opted for the less trafficked south exit of Moultrie.  Excorted out by Zaborsky counsel Thomas Connolly, he was overheard indiscreetly telling them both, ‘This was not a good day.” 

The Legal Times’ Mike Scarcella, fast on the keyboard as always, is first to file.  MetroWeekly’s Yuse Najafi offers this summary.

The Sights:

A wmrw.com “Shaky-Cam” Exclusive:

[youtube=http://www.youtube.com/watch?v=AinTOTP3cN8]