Ethereal vs. Visceral
In the not to distant future, eight weeks from yesterday to be exact (assuming no continuance), Judge Lynn Leibovitz gavels in United States vs. Joseph Price, Dylan Ward, Victor Zaborsky
In yesterday’s post on the Government’s Opposition to the Defendants’ Joint Motion to Compel Rule 16(a)(1)(e) Disclosures, we got a clearer picture of what assets AUSA Glenn Kirchner hopes to bring to trial. The government maintains they’ve followed both the letter and spirit of Rule 16, their disclosure obligations to the defense.
And in their attached proposed order to deny, there was a ballsy request: The defense must make their Rule 16 disclosures to the government within 24 hours after the order is entered. Slow walk, hurry up… whatever.
Don't try this at home
That filing was in response to last week’s Defendants’ Joint Response to Government’s Motion to Extend Time to File to Defendants’ Joint Motion to Compel (my God this is getting tedious). Or simply, the defense still claims that the government has been providing incomplete disclosures as per the rules of discovery.
This Joint Response may offer a glimpse into how the defense sees the trial unfolding and developing: experts, experts, experts.
Really? Winning = explaining mitochondria to a jury?
From the defendant’s Joint Motion:
“…this trial, unlike many, will focus almost exclusively on forensic evidence and expert testimony. The Government’s theory of prosecution rests entirely upon forensic evidence, and the Defendants’ defense will rebut that evidence point-for-point.
One can only guess how many tens of thousands of dollars the defendants have spent, and perhaps an equal amount of your tax dollars spent by prosecutors, in the collection, analysis and documentation of the scientific evidence, experts and testimony that will be presented in May. 
But if one stands back and assumes the role of a juror in this trial, how could this battle of the science nerds play out? Expert vs. expert; sez him, sez her.
At what point will eyes glaze over in the jury box? Twelve angry men and women, hypnotized day after day by mind numbing science. Make that twelve dazed and confused men and women.
We already suspect the drill here: the government will present and Mr. Wizard Bernie Grimm will kick the crap out of Kirschner’s experts. Dueling flasks and bunsen burners….possibly ending in a draw. And maybe that’s what the defense wants and needs: sewing bio-engineered seeds of doubt.
But let’s get back to role playing jurors. What will stick and what will they take back into the jury room for deliberations after the science lectures? For lack of a better description, maybe it’s less the ethereal and more the visceral.
Although physical evidence presented may fall under the header of “forensic evidence,” there are a host of other items and witnesses that could cut through the scientific clutter of the test tube set. For instance, several months ago we wondered what the effect of holding up the not-so-bloody t-shirt Robert wore that night may have on the jury?
Since that October post, we’ve got a better handle on what else Kirschner hopes to wave around the court room: a boxcar full of S&M gear, a knife with no blood on it, a cutlery set with a missing knife, a not-so-bloody towel and bed linens, crime scene photos and perhaps those much discussed photos from Price’s computer, allegedly of him and Ward engaged in… well, we have no idea what, but many assume them to be rather graphic.
Also, from yesterday’s post, in Attachment A, page 4, that in addition to hundreds of crime scene photos taken of the guest room and house, there may indeed be pictures of Robert taken that night shortly after the police arrived.
And who knows what the reaction will be when the 911 call is played; Victor on the Victrola. And then of course, the hours of videotaped interviews.
Then there’s the parade of witnesses Kirschner queues up: the veteran DC EMT’s who arrived at Swann Street, the first MPD officer on the scene, Diane Durham; the mysterious witness W-5 from the affidavit, all those “character witnesses,” Sgts. Plante (S&M expert), and Parson (gay Liaison), and the MPD Brass: Detectives Waid, Wagner, Norris et al. And what about Kathy Wone?
For all we know, the relatively speedy Judge Leibovitz may rule this Friday as to what evidence will be entered at trial. A big decision for her will be the Miranda question raised last week – whether the transcripts and videotapes of the defendants’ interviews are admissible.
Team coverage is planned for Friday’s 2:45pm status hearing. And if we’re lucky, a special guest courtroom correspondent will join us for the session and perhaps pen a companion post on the day’s activities and news.
-Posted by Craig and Crow T. Robot
Defendants’ Joint Response to Government’s Motion to Extend Time to File to Defendants’ Joint Motion to Compel
Why not save time and energy and replay Marcia Clark vs. Johnny Cochran?
And that may in fact be the reason why the govt is so intent on getting those photos in. The science may be a seesaw back and forth, but the images will remain in the forefront of the jurors’ imagination.
At the end of the day, Robert was found stabbed to death in the defendants’ house, on a clean bed next to a blood-smeared knife that could not have stabbed him, with no defensive wounds and with no sign of a home invasion, with the trouple in the house the entire time. And a 911 call at odds with the crime scene.
Whatever scientific mumbo jumbo goes on during the trial regarding blood testing, sperm vs. semen, and needle marks, the prosecution can fall back on those basic facts. All the defense can do is distract by poking holes in secondary scientific theories and perhaps showing that one unidentified hand print is an indication of a remarkably quiet and tidy intruder rather than Victor or a prior guest.
They have no obligation to prove innocence, but against the basic facts, “We didn’t do it, don’t know who did and the police were so mean to us!” doesn’t fly.
Hoya,
I think you are right on the money that the all the experts (especially defense experts) won’t be able to kick up enough dust so the jury won’t be able to clearly see what you just articulated. Yes, the defense wants the jury to focus on reasonable doubt, but if they focus on the inescapable facts that you just highlighted, clearing the conviction hurdle won’t be as high as the defense wants it to be.
David
Is it possible that the prosecution is doling out this information to raise a big cloud of worry for the defense, leading them this way and that in preparation for the dirtiest of fights, and then go into court and lay out the simplest of cases, the equivalent of irrefutable bullet points?
At the end of the day, Robert was found stabbed to death in the defendants’ house, on a clean bed next to a blood-smeared knife that could not have stabbed him, with no defensive wounds and with no sign of a home invasion, with the trouple in the house the entire time. And a 911 call at odds with the crime scene.
Whatever scientific mumbo jumbo goes on during the trial regarding blood testing, sperm vs. semen, and needle marks, the prosecution can fall back on those basic facts. All the defense can do is distract by poking holes in secondary scientific theories and perhaps showing that one unidentified hand print is an indication of a remarkably quiet and tidy intruder rather than Victor or a prior guest.
They have no obligation to prove innocence, but against the basic facts, “We didn’t do it, don’t know who did and the police were so mean to us!” doesn’t fly.
Hoya,
I think you are right on the money that the all the experts (especially defense experts) won’t be able to kick up enough dust so the jury won’t be able to clearly see what you just articulated. Yes, the defense wants the jury to focus on reasonable doubt, but if they focus on the inescapable facts that you just highlighted, clearing the conviction hurdle won’t be as high as the defense wants it to be.
David
Is it possible that the prosecution is doling out this information to raise a big cloud of worry for the defense, leading them this way and that in preparation for the dirtiest of fights, and then go into court and lay out the simplest of cases, the equivalent of irrefutable bullet points?
Carloline: I think that’s a fascinating thought – that Kirschner may be throwing head fakes and running misdirection plays to keep the defense fritzy. Head games for lack of a better word.
I wonder if that’s typical of a prosecutor’s playbook. I’ll leave that to criminal law jocks to address.
Still, I’ll venture that Kirschner and Martin have tried enough cases at Moultrie to know what sticks with a DC jury and what may not. Likewise, the Front Four have had their share of big games too and have a proven record of wins.
I certainly hope they’re able to cast enough doubt on the innocence of those involved to make Mrs. Wone’s civil case a smoother ride.
Carloline: I think that’s a fascinating thought – that Kirschner may be throwing head fakes and running misdirection plays to keep the defense fritzy. Head games for lack of a better word.
I wonder if that’s typical of a prosecutor’s playbook. I’ll leave that to criminal law jocks to address.
Still, I’ll venture that Kirschner and Martin have tried enough cases at Moultrie to know what sticks with a DC jury and what may not. Likewise, the Front Four have had their share of big games too and have a proven record of wins.
I certainly hope they’re able to cast enough doubt on the innocence of those involved to make Mrs. Wone’s civil case a smoother ride.
As someone who’s been following Robert’s murder from the beginning, I want to thank you guys on the WMRW team again for great coverage.
re the trial, I am sure that the prosecution will do their best to bring on the ‘juicy’ stuff’ periodically to keep the jurors awake. I’m betting there will be people sitting up straighter in their chairs (while trying not to stare) if/when the S&M pictures come out (projected on a big screen, or just blown up to poster size, I wonder…). While it may not be fair to link Ward/Price’s ‘hobby’ to the murder necessarily, I have a feeling it will have as much effect as any evidence on the jury of their ‘peers.’
I wish I could be there, but knowing you guys are on the case is the next best thing.
TK, thanks for all of us for the vote of confidence. See you here (online) tomorrow.
-Doug, co-editor.
As someone who’s been following Robert’s murder from the beginning, I want to thank you guys on the WMRW team again for great coverage.
re the trial, I am sure that the prosecution will do their best to bring on the ‘juicy’ stuff’ periodically to keep the jurors awake. I’m betting there will be people sitting up straighter in their chairs (while trying not to stare) if/when the S&M pictures come out (projected on a big screen, or just blown up to poster size, I wonder…). While it may not be fair to link Ward/Price’s ‘hobby’ to the murder necessarily, I have a feeling it will have as much effect as any evidence on the jury of their ‘peers.’
I wish I could be there, but knowing you guys are on the case is the next best thing.
TK, thanks for all of us for the vote of confidence. See you here (online) tomorrow.
-Doug, co-editor.
Wow, you editors have been quite prolific this week! How on earth do you balance the Wone coverage with fulltime jobs?
Wow, you editors have been quite prolific this week! How on earth do you balance the Wone coverage with fulltime jobs?
I wonder what Lynn will do with the Miranda motions: dismiss them out of hand, or partially grant them? Is it all or nothing re Miranda for the defense?
I wonder what Lynn will do with the Miranda motions: dismiss them out of hand, or partially grant them? Is it all or nothing re Miranda for the defense?
The actual Mystery Science Theater was very sarcastic commentary by a couple of robots and an alienated earthling on really bad acting and theater. I’m sure there is some analogy here, but I’m still working to find it.
LMAO!
“DEBBIE!!!!!!!!!!!”
Reynolds????
Push the button, Frank.
The actual Mystery Science Theater was very sarcastic commentary by a couple of robots and an alienated earthling on really bad acting and theater. I’m sure there is some analogy here, but I’m still working to find it.