First Cracks? >> Updated v.3 (with Washington Post link) <<
This just in: Last Friday, Victor Zaborsky’s counsel Thomas Connolly filed what may be two critical motions.
02/26/2010 Defendant Victor J. Zaborsky’s Motion for Severance
02/26/2010 Defendant Victor J. Zaborsky’s Motion and Incorporated Memorandum to Suppress Involuntary, Custodial Statements
We are on the way to Superior Court clerk’s office now to try and pull these documents. We’re also trying to wrap our arms around what these may mean. ABANET has this on severance motions. Law jocks: A little help?
>> 3:00pm ET: The clerk’s office does not yet have the motions available. We’ll get them posted as soon as they are made public.
>> 4:00 pm ET: Looks like Joe has filed the same motion to severance. Dylan’s case is not coming up in the database.
02/26/2010 Defendant Joseph R. Price’s Motion and Incorporated Memorandum to Suppress Involuntary, Custodial Statements
2/26/2010 Defendant Joseph R. Price’s Motion for Severance
>> 5:30pmET: WaPo’s Keith Alexander files this: Men ask for separate trials in Wone killing
“In the filings by their attorneys, the men said they wanted separate trials because police interrogated each man separately and, as a result, they said they have the right to be tried separately.”
BEST NEWS I’VE HEARD IN A LONG TIME! The Motion will set forth the reasoning for requesting severance. In other words, Victor’s lawyer is asking that Victor be tried separately from Dylan and Joe, that something that can be used against them, shouldn’t be used against him – what, we don’t know. I think it was a couple of weeks back when I wondered on this site why he hadn’t done so. . . not that it will be granted (especially at this late date). But it does appear to indicate that Victor/Victor’s lawyer knows nothing good can come of him being tried with Dylan and Joe – and possibly that there’s been a BREAK in how Victor is feeling about going down with the (sinking) ship!!!
As for the Motion to Suppress Involuntary Custodial Statements – will just have to see what it is. These things are often telling of what the defense is going for (by what they’re trying to keep out). Sorry didn’t mention it in first post – Motion for Severance is HUGE.
Could “custodial statements” be what Victor said during the interrogation on the night of the murder?
What makes a statement ‘involuntary?’
My assumption is that it was something said during interrogation. “Involuntary” is an odd one – other lawyers here have an idea?? I’m sure they were read Miranda rights right away. Strange use of wording.
“Involuntary custodial statements” are Miranda buzzwords. They might not have been Mirandized immediately if they were being treated as “witnesses” and therefore not in “custody.” But if they can show they really were in custody as suspects and no warnings were given, any statements might be considered de facto “involuntary.” Any indication in transcripts or elsewhere when the warning might have been given?
I just assumed they’d been read Miranda rights as a matter of course since the interrogation was indeed custodial and lasted until wee hours of morning, with discussions of whether to have lawyers present.
Considering Joe et al live with Aunt Marsha, I wonder is this move is sanctioned by Joe.
I won’t look at it as something truly telling until Joe and Dylan are looking for separate housing.
I’m looking forward to seeing the documents…Until then I’m hoping for the best!!!
How do we know for sure that Victor is still in the house? He could have moved out weeks ago in anticipation of this move so far as we know — right?
The home they are living in is Victor’s aunt’s home. Doesn’t seem likely that Victor would remove himself from HIS family. If there is any kind of rift or breach, it seems more likely that Joe and Dylan (non-relatives) would vacate.
Perhaps they have.
We can only hope! 😀
There’s always Michael’s floor. Wherever that may be.
Stand by for an update. Things are maybe more complicated?
PINS AND NEEDLES. You’re making me nervous!
And now I see it – Joe’s Motion for Severance. We’ll have to see if it’s the same as was written by Connolly, if the same custodial involuntary statements are at issue (assume yes). But CRAP – are Joe and Victor preparing to throw Dylan under the bus?? If it’s the TRUTH, then fine. . .
Joe’s was filed by Bernie Grimm, but strangely, Dylan’s case is not coming up in the database. But my hunch is, now, that all three have filed the same motion for severance and to supress.
David
Huh. If V. and J. file for severance, does Dylan have to? If the other two go through, isn’t it essentially done for him?
I can’t recall if the trials were separated then if the defendants in the OTHER trial CAN be called as witnesses by the prosecution. I believe so – of course, they can take the 5th, but juries interpret that how they wish, and it sure looks bad considering the trial is for conspiracy, obstruction, tampering. Curious to see if the prosecution may even want this for that purpose, and to use it as leverage in getting Victor to ‘deal’.
In my estimation, Joe may well have given his ‘approval’ but he’s got less power than he lets on. Connolly is no slouch, and even if he has to sit both Victor and Joe (and Bernie) down, he has to be clear that Victor can do what is best for Victor – especially if the others don’t want him turning state’s witness. Victor can still be spineless if he points to Connolly as the one who SHOULD be making decisions on his part. Pretty fascinating.
I’m not getting excited until I read the motion. This could be big . . . or not. I’m wondering how long this has been in the works — since “not a good day” or since the prosecution’s recent disclosure. If the latter, might Victor want to distance himself from the toys if he had nothing to do with them? And I wonder what the involuntary statements were/are?
Hey Hoya, it does appear to reveal a brink in the armor of the all-for-one-and-one-for-all Trouple. The house of cards will fall if any of them decide to go off-script. You’re right to wait to read it, of course, and it may be indicative of very little movement, but I am glad that Connolly has made a move which would appear to be against Joe and Dylan.
Isn’t the timing of motion of severance very curious? On the day when the defense was to file their joint motion in response to govt. uncharged conduct (which wasn’t filed BTW) Victor motions for severance and to supress. The timing seems to speak volumes also.
David
David, I agree. I’m an optimist, though, and others are right to reserve judgment. Still, it can’t be GOOD for the Trouple to have one of their own decide that splitting off would be better for him. And what happens if the Severance Motion is denied? Is this not a prelude to Victor/Connolly taking additional action? Victor may be a lovestruck fool (and was financially co-dependant with Joe for a while) but Connolly has a job to do. He can’t sit back and watch his client go to prison for the same terms as the co-defendants if he knows something would exonerate him (or certainly knock down the severity of the crime). While in the end it’s Victor’s decision, Connolly has received at least THIS okay from Victor. A major step.
could this be a ploy for time? Could Victor’s severance cause a delay in trial? Seems it has already caused a delay in the joint motion in response to govt. uncharged conduct as David pointed out above.
I expect that Judge will deny it unless there is a real shazam in the filing. Don’t know if the defense got an extension to file the Motion or if perhaps it was filed under Seal (so we couldn’t get it).
It might be just a ploy to push off the trial date but it wouldn’t be done just for that purpose – it’s a big step, to request severance, because by implication if nothing else, it is a strong statement that what Victor did that night is different from what Joe and Dylan did that night. How it comes to the jury is another thing, but for purposes of this site, it sure seems meaningful – and validating – for those of us who suspect that indeed Joe was downstairs with Dylan rather than upstairs sleeping alongside Victor as the horrors were begun.
So now Joe and Victor want severance – and some custodial yet ‘involuntary’ statement suppressed. I don’t know how a CONSPIRACY trial can be chopped off like this, with one defendant each – presumably Joe and Victor aren’t asked to be tried together (HOPE NOT). But this is beginning to smell . . .
Wow I actually do some work today and I come back to all of this! Please someone ‘splain me what it all means when we see the filings. And Great work again guys!
I don’t believe these motions are too exciting (but what do I know?) I think they are likely standard filings; no one wants their client tried with others and the motion to suppress will be denied IF adequate miranda warnings were given (let’s hope so).
I’ve read over some early news articles and this is how I see things and questions to follow. Price said initially that he pulled the knife out of Wone. Zabrosky (sp?) was screaming. So, given these admissions, I feel it likely Price put the knife in Wone and wasn’t Ward taking the blood class – so he did the needle injections of the drugs. I think human nature would make such a rape a conspiracy – this was a bonding ritual for Ward and Price giving them something special since Price already had the more evolved (so to speak) relationship with Mr. Z.
These are my questions: Price said he heard the door chime – I wonder if there is an alarm system that would record if the door alarm went off. Also, since his tenant lived in the basement, it wouldn’t make sense she’d open that door.
Where did they hide the real knife and needles? has an effort been made to canvass the neighborhood for these things? They had about 20 – 40 minutes to dispose of it before the police came. If they just hid it, then later disposed of it, it seems there would have been some trace blood somewhere in the house. Also, if they had the date rape drugs they likely ordered them online and there would be records. In my uninformed opinion, I would strongly encourage Ward to make a plea for conspiracy and get 5 years, and turn in Price, if I were giving him legal advice. Thoughts?
As I feared, particularly once David pointed out that the responses were due today — dilatory tactics. Hope the judge calls this for what it is if I’m right.
The defense would still need to seek an extension, which should be public, or the response was filed under seal/protective order making it unavailable.
But I agree it doesn’t look good – now that Price has filed one as well, it seems tactical for delay. Had it only been Victor, it might have had some legitimacy. That said, if Victor’s was authored by Connolly and had a different argument(s) and theories, and Joe/Bernie’s is really an attempt to derail Connolly’s, then some undercurrents may well be building.
The extension request could be incorporated in the motion to sever, i.e. “We can’t properly respond until we know whether we are being tried separately or apart.”
What’s odd is that almost all of the defense filings so far have been “joint motions.” These appear not to be.
I may have been hasty getting the news up without first seeing Price’s filing on the Superior Court database. It’s often slow in pulling up records. Ward’s is still a mystery as of now. We’ll have the docs up as soon as we get them.
And apologies if I went with the “BREAKING” thing too soon. We save those for big news. If you ever see “BULLETIN,” then you know it’s really big. “FLASH” is reserved for the major, major. Like a verdict.
ALSO: We just updated the post with a like to a Wash Post item on the filings. It looks like a trifecta.
Craig, they couldn’t really do a “joint motion” for a severance, kind of defeats the purpose. Appreciate what you do so no worries on the ‘breaking’ news item – I prefer quick to well researched when faced with new info.
And wouldn’t only 2 of the defendants need to file motions for severance to create 3 separate trials?
Yes but it looks like everyone thinks they need one if they all file one. Not that it really matters (but see later post on prosecution strategy).
Delay, delay, delay. Grrrrr. With the severance motion, do they have any hope of getting the cases off of Leibowitz’s docket? I wonder, did any of the discovery information that the government turned over play a role in this move?
I sort of had the impression that the joint(ish) defense was partly a cost-saving option for the defendants. Guess not.
Legal eagles – do the defendants have any rights to have each individual’s case considered by a separate jury? And isn’t it a bit late in the game for this sort of motion?
Hi Penelope, even with every trick-in-the-book delay tactic, I’d rather Leibowitz be the judge here, even if there’s a delay. She’s tough – not like Weisburg.
Cost savings are not really the issue. Each lawyer HAS to look out for his own client’s interests.
As for separate juries, in California it does happen more often to get separate juries IN THE SAME TRIAL so there’s no delay and no mixing and matching. Don’t know about DC or the practice of agreeing to severance (trials or juries).
I would think the defense would have had a stronger case earlier in the process – but Joe did NOT want Victor separated from the pack by any stretch of the imagination. That’s why I’m putting forth a strategy for the prosecution to consider – agreeing to try Victor separately.
All:
My very quick review of D.C. law on the subject strongly suggests that Severance is within trial judge discretion and that defendants indicted together should normally and presumptively be tried together. Moreover, since the first charge is for Conspiracy and one cannot conspire with oneself, I would think there would need to be a big fire, and not some more smoke and mirrors, before the Judge grants the yet (by me) unseen Motion.
Respectfully,
Meto
so, in essence, it’s merely a stalling tactic? or is this par for the course in criminal defense of this nature?
It’s definitely a stalling tactic but one with a twist. For me, I wonder if it’s a ‘be careful what you wish for’ situation. Would certainly change who could be called as witnesses in each trial – not sure but that could benefit prosecution. My instinct is that the prosecution may be calling the bluff and actually MAY be considering agreeing to at least trying Victor separately – could simply out-lawyer the too-smart-for-own-britches defense team.
But likely if prosecution fights the Motion that the Judge will deny. We will see flurries on flurries of motions between now and trial, each phrased as though it was critical, and it happens whenever you have a defendant who is paying the big bills.
Hoya, other lawyers – what do you think about the prosecution filing objection to severance for Price and Ward but agreeing to trying Victor separately? Might prove important in many ways. . . and it would drive the defense crazy.
I’m no lawyer, but my hunch is that the motions for severance aren’t just delaying tactics.
I thought the premise behind this crime was the “if you have 4 people in a room with a loaded gun, and you shut the door, the gun goes off, and when you open the door you see one person has been killed, but no one will talk and there are no fingerprints, etc, you won’t be able to convict for murder because you can’t prove beyond a reasonable doubt which of the three pulled the trigger” scenario. (Sorry for the run-on sentence). I’ve always assumed that’s what Joe had in mind when he planned this crime (initially with an alt.com personals ad respondent in mind as victim).
So now, they are charged with a cover-up, but if they are tried separately, won’t it be just as hard to convict any one of them because you can’t prove beyond a reasonable doubt which of them did what? For example, Victor could say he just walked in at the end, the first he heard or saw was the same scene the EMT’s witnessed – and didn’t see or participate in any cleanup, doesn’t know anything about it. Can the prosecution prove that isn’t true? And Dylan could say the same, and I suppose Joe could too, though it strains credulity.
Tried together, its an open and shut case because clearly a clean-up happened and they are the only people who could have done it, but individually… I can imagine a jury finding reasonable doubt that (for example) Victor cleaned up the blood, as opposed to Joe or Dylan doing it.
Not that they’ll actually get severance – this would be more of a hail mary pass.
Does this make sense to anyone? Or am I over-thinking this?
N.M. – Good questions. I was reminded of a comment (#51) on Above the Law last week. Maybe this gives some insight:
“A jury doesn’t need to know precisely who did what.
They only need to determine that, given the presence of all three in the house, and what the evidence indicates transpired, it is likely beyond a reasonable doubt that all three, in some manner, were complicit in corruptly endeavoring to obstruct the investigation.
As far as who exactly did what… a jury doesn’t need to know; and deliberately deceiving the authorities as to what transpired for the purpose of obstructing the investigation constitutes obstruction in itself.
And that’s why these guys will be, easily one would hope, convicted. Their lawyers must know that, and at least one must be pushing his or her client to do the smart thing and make a deal.”
Right, so long as they are tried together… but if they had individual trials, the question for the jury would be “is it likely beyond a reasonable doubt that *Mr. Zaborsky* was complicit in corruptly endeavoring to obstruct etc.” Zaborsky could say he heard / saw / was told nothing, and his lawyer could argue that anything the prosecution alleges happened could have been done by Price and Ward acting in concert without Zaborsrky’s knowledge. Repeat this formula for each defendant – Ward heard / saw / was told nothing while Price and Zaborsky acted in concert; Price heard / saw / was told nothing while Ward and Zaborsky acted in concert – and you have a scenario in which all three evade conviction. God forbid.
I sincerely doubt that judge Leibowitz will allow that.
This is I think just a little exploratory investigating of the ship’s tie lines, speculative eye balling of the depth of the slip, furtive observance of dock traffic, but not a true wholesale rodent ship abandonment as yet.
Motions of severance conveniently do double duty as expected delaying tactics (otherwise known as legal fucking around). I am sure that Judge Leibovitz’s threshold for such things is low, but is it low enough (?), could a rat slip under it?
“In the filings by their attorneys, the men said they wanted separate trials because police interrogated each man separately and, as a result, they said they have the right to be tried separately.”
I’m pretty damn sure it’s standard investigative protocol to question witnesses and suspects individually so that one person’s testimony does not influence that of others. The argument sounds weak to me.
Agree.
Any word on those motions, eds?
Motions are in hand, including Defense joint reponse to government uncharged conduct.
We will post shortly.
David
So, the Triple Alliance wants separate yet equal trials: won’t such requests be more expensive to the taxpayer?
I would rather see them hang together than be hung separately, but this ploy for running out the clock does give the wives — Vic and Dyl — the time and structure to do the necessary treachery of turning on their Joe. The elder Price as would-be patriarch, though, will not take such disloyalty well — fasten your seat belt, Aunt Marcia: you and your darling Victor are in for an even bumpier ride than you could ever imagine!
If separated, couldn’t each cast doubt on the other and end up with all three going free?