Uncharged Conduct II

Half the Story

In the clerk’s office this week was thirty pages of Defense Joint Response to Government Notice of Uncharged Conduct II and Some Other Stuff.  Nowhere to be found was the government’s notice that this filing responds to, so this doc will have to serve as a study guide.

Who's the mystery long shot pick in the Derby?

In the government’s first uncharged notice from March, AUSA Glenn Kirschner blasted the defendants with the long list of S&M toys gear, “evidence of dominance and degradation, enslavement and electro-torture… evidence of incapacitation” and plenty on defendant Joe Price’s brother, Michael.

Much of that, as they say, has been winnowed.  It now appears the government intends to introduce three categories of “purported” evidence:

Evidence Concerning Access to Restraints

Evidence of the Late Reporting [of the burglary] as Proof of Conspiracy

Evidence of the Nature of the Defendants’ Unique Relationship as Proof of the Conspiracy.

Dylan Ward counsel David Schertler unloads on Kirschner and tweaks his deputy, T. Patrick Martin as well, using the grand jury transcripts of his questioning of Ward and fellow defendant Victor Zaborsky.

Schertler mocks the “Government’s constantly evolving theories” of incapacitation, like the  undetectable paralytic agent succinylcholine, and then of course xylene.   Physical restraints?  No go, says Schertler:

“The erotic toys were not found on or near Mr. Wone.”

“There is no evidence that they were used on him (and the Government has undertaken no effort to test or otherwise prove that any one of the erotic toys was used on Mr. Wone…” and

“The erotic toys are no way relevant to the Defendants’ intentions.”

Brushing back Kirschner’s charges of reporting the burglary late, Schertler quotes  Martin’s grand jury questioning from August 2007.  That does not appear to be a typo; the burglary grand jury sat 9 months after the robbery and a year after Robert’s murder.  Justice delayed much?

MR. MARTIN:   On October 30th was it reported your home was burglarized?

MR. ZABORSKY:  It was not reported in the 3oth and we wanted to talk to counsel.  We wanted advice of counsel.  And so that is the reason that we didn’t pursue this on that night.

– later –

MR. MARTIN:   Joe [Price] was against reporting it [the burglary]  Or is that not a fair assessment?

MR. WARD:   I would way that’s not a fair statement.  I think it was an ongoing discussion that wasn’t solved on Monday, by the time we went to bed.

MR. MARTIN:   Why didn’t you report it in between the time of making a determination on the 31st that you should report it, and November 2nd when it was reported.

MR. WARD:   On the — I was waiting for my counsel.

On page 21 of the filing, Schertler details Michael Price’s March 20, 2007 email apologizing for the burglary and the threesome’s alleged failure to report that as withholding material evidence.  By August 2007, the question was moot as Phelps Collins confessed six months earlier.  Again, Martin’s questioning of Zaborsky is excerpted:

MR. MARTIN:   Let me ask you one more question about grand jury Exhibit 1 [ the email].  Is it, why didn’t you give this to the police when you first got it?

MR. ZABORSKY:   I – to be honest with you, I never even thought of it as being relevant.  I mean… the police very quickly determined that Michael was involved, and… it wasn’t like that was an admission that would… help the case.  And honestly, I literally read that and I didn’t delete it but I just put it in a folder and never read it again.

It’s a decent read if you skip the boring precedent stuff.  A better read may be one waiting for us in the clerk’s office.  You’ll never guess whose testimony the defense wants spiked next.  W-1, W-2, and a whole mess of other W’s:

Defendants’ Joint Motion in Limine to Exclude Opinion and Speculation Testimony of EMS Technicians and Police Offivers [sic]

[Clocker’s Corner]:  Another Derby Day comes around, and wmrw.com hunch players are looking at one particular runner this afternoon.  Stately Victor, the surprise winner of Keeneland’s Blue Grass Stakes goes to the post again today as a long shot, now at 16-1.  Good luck players.

-posted by Craig