Team Swann Returns Fire
Bernie Grimm, David Schertler, Tom Connolly
After AUSA Glenn Kirchner’s lengthy opening statement on May 17, the defense team took over and in succession delivered passionate and relatively tight rebuttals to the prosecutor’s summary of the many allegations of tampering and cover up.
We heard repeatedly that neither Price, Ward or Zaborsky had any motive to hurt Robert, hide his killer’s identity or aid in a cover up in any way, and that they helped the police.
The defense team spoke about their clients’ long friendships with Robert and Kathy Wone, their spotless records, the heavy-handed tactics of the MPD and subsequent failure to fully investigate the murder of their friend and how the physical evidence was cooked up by the government to fit their “fantastic” theory.
Grimm: “Mr. Price, Your Honor, wanted to get to the bottom of who murdered his friend, Robert Wone. He did nothing to stop the police. All he did was tried [sic] to aid the police. It’s unfortunate that the police got the facts skewed early on and never — and just never retreated from that.”
Schertler: “They accuse — the detective these three men, each of them, of being involved in the murder or Robert Wone. They accuse them of things like trying to gay him up. They accuse them — they tell them that they are going to jail and that a gay man won’t be able to survive in the D.C. jail. The police lie to them and tell each of them that the others are in the process of confessing, so you might as well confess too.”
Connolly: “Mr. Kirschner made a point about the towel and applying pressure. Again, Mr. Zaborsky went upstairs and got the towel, come down to the second floor and handed the towel to Mr. Price and then was asked, “Have you gotten a towel?” as he was applying pressure. There’s no second towel; there’s no missing towel here. They’re talking about the same thing because Mr. Zaborsky is in transit when he’s talking to the 911 operator.”
The complete texts follow.
Artwork courtesy of WTTG-TV and William Hennessy, Jr.
“Mr. Zaborsky went upstairs and got the towel, come down to the second floor and handed the towel to Mr. Price”
From what I’ve read, there were two unused towels folded on the chair in the guest room.
Maybe those were the ‘good’ towels . . . something cheaper would do just fine. But then, why go upstairs at all? There was a second floor bathroom and probably a linen closet there as well. Not to mention the myriad of other items (Robert’s shirt for example) that might have been used to staunch the flow while one (Joe) ‘waited for THE towel.’
Maybe Victor, not having greeted Robert, didn’t realize there were towels in the guestroom, but Joe certainly would have as he was sitting right there. The more I read the prosecution’s opening statement, the more implicated I think that Michael is. There is an awful lot of the prosecution’s statements dedicated to Michael, including his attendance at the funeral and his altercation with a police officer while there.
Victor has said that he and Dylan made up the bed in the guestroom for Robert, so it’s likely he would have known if towels were set out as well.
Exactly. Also, there was no need for Joe to tell Victor to go upstairs and call 911. Robert’s cellphone was in plain view right in the room and there was another phone on the same floor. How do Nate and Ben Franklin explain that?
People don’t always do the simplest and most logical thing – let alone when they’ve just come upon a friend’s murdered body in their house.
I’m always forgetting where I parked my car, throwing away papers that I meant to save, and walking around looking for my cellphone when it’s sitting out in plain sight. It’s not evidence that I’ve just murdered someone.
I agree and concede the argument including that it does not provide evidence of murder . . . but then, the trial is not a murder trial is it? It’s about being something less than honest with the circumstances. My personal feeling is that this was not a murder anyway but more likely manslaughter. By the way, what was Joe doing?
“From the crime scene photos shown, there were two white towels on the back of the desk chair in the guestroom; both folded neatly, neither disturbed.”
I wouldn’t pick up and use a murder victim’s cell phone. And my limited experience with blackberries (issued by businesses) is that they are locked so only the owner can use them.
There was also a landline in the guestroom itself, and plenty of towels in the bathroom, next door, as well as towels in the guestroom on the chair. So in the time that victor went upstairs to phone 911, grab a towel, put on a robe, etc. (estimated by defense as at least two minutes), Joe was doing nothing to help robert? He wasn’t trying to stop the bleeding? If there’s only one towel, as the defense claims, Joe was doing nothing, I guess, for those two minues. He was also doing nothing, other than sitting on the guest bed, when the EMT arrived.
These three defense statements are absolutely convincing.
I have also spent more time poking around on this website since my postings last night, and I must say that most of what I’ve read in the comments sections is pretty disgusting. Previously, I had read only the trial reports and legal documents, assuming that the comments would mostly be worthless speculation. They’re worse than that, it turns out. The comment boards are dominated by a cadre of obsessives with a lynch-mob mentality against Wone’s three friends. A similar hysteria prevails against anyone who tries to post theories or evidence that questions the defendants’ guilt.
The three defense lawyers have summed up better than I could all the ways that the prosecution case is clearly flimsy … to put it mildly. Last night I described the evidence against the three defendants as circumstantial. A better word would be suppositious. There is almost nothing of substance to the prosecution’s case.
The police investigation and the case as a whole were clearly tainted from the beginning by the homophobic assumption that there was something deeply suspicious about a straight man staying overnight in a house with three gay friends.
And no, I am not Joe Price, nor am I Dylan or Victor or Michael, nor do I personally know them or anyone else associated with this case, nor am I someone who posts on here under different screen names. The fact that certain “regulars” here jumped in to accuse me of these things is further evidence of their paranoid mob mentality.
“I’m signing off now, and don’t expect to be posting again.”
Nate – welcome back. Fresh eyes are always welcome! I agree that the evidence of the defendants’ guilt is circumstantial, but I just can’t get around the delayed 911 call, lack of blood, lack of defensive wounds, clean stab wounds, and no evidence of an intruder. Can you address those issues?
It is often an echo chamber for the lynch mob here, but it’s the only place you can read the original documents to make your own conclusions.
The MPD’s work in this case is the most disgraceful, malicious example of government prejudice & misconduct I have seen in a long time. It has inflicted unforgivable anguish & damage to the Wone family & the defendants.
Do you expect acquittal the second the prosecution rests or do you think the defense will be allowed to present their case?
Pro-defense fools like Ben Franklin should also pay attention to Nate. They might be able to learn something from him, such as rationality and clarity.
Nate wrote: ‘And no, I am not Joe Price, nor am I Dylan or Victor or Michael, nor do I personally know them or anyone else associated with this case, nor am I someone who posts on here under different screen names. The fact that certain “regulars” here jumped in to accuse me of these things is further evidence of their paranoid mob mentality.’ I have not seen anyone make that accusation. At the same time, it is obvious to me that Nate is telling the truth that he is not Joe Price, Dylan Ward, Victor Zaborsky, or Michael Price, and he is not one of the sock-puppets. Nate is something that we have not seen much of, a rational educated pro-defense poster. (He cannot possibly be any of the sock-puppets. They use substandard English.)
Posters who think that Nate is mistaken about the case should disagree with Nate reasonably, just as Nate is disagreeing with pro-prosecution posters. Save your ridicule and accusations for the fools and trolls. Discuss the facts of the case reasonably with Nate. Those who think that the defendants are guilty might be able to learn something from Nate.
I disagree that there was a huge influence of homophobic assumptions that drove this investigation.
I think the police just plain did a very incomplete, careless investigation. That includes the DC attorneys office, FBI and Secret Service and the lack of collaboration between the agencies
The problem may be in the investigative system itself which could probably use an update by a trouble shooter and crew.
Without Kathy Wone’s court suite a and the activities of the owners of this blog, I think the whole
episode would have quietly slipped into a cold case.
I’ve always felt that is was homophobia that caused a lot of poor work by police and FBI. It’s not the homophobia of the hate-mongers like Dr. James Dobson and Dr. George Rekers. Unlike their ilk, this type of homophobia doesn’t involve action against and persecution of gays. This is the type that says, “It’s a gay murder. Why bother to find out who did it.” I’ve always felt that they simply didn’t care because they viewed it as a “gay murder.”
I think homophobia was a big issue in the first 12 hours of the investigation. There was some pretty clear anti-gay bias from some of the police in those videos, some of whom were older (presumably) heterosexual men who simply couldn’t fathom the idea of a straight man spending the night in a house with three gay men. But I also think that as soon as Detective Waid came onto this case, he realized that this was an issue, and he went out of his way to correct it.
I do agree that this would have fallen into the “cold case” file had it not been for Kathy Wone’s lawsuit, but I think the case was neglected more because of incompetence rather than homophobia. I think that politics also may have played a part. While Obama had not yet been elected–and Eric Holder had not yet been appointed Attorney General–at the time the charges were filed, I think that Holder’s involvement probably pushed the prosecution toward filing charges. I think a politically astute prosecutor’s office would have known that Holder was not someone you wanted on your bad side.
Bill O:
Glad to have you expand some of my thoughts.
In situations, puzzles, like this, I am a big collaboration person.
I am happy to participate on this site on a day like today when there is so much building .
Pecking order being pecking order, I expect the prosecutor’s office wanted to present something to Holder. That is all that we seem to have-“something”.
The important part of this exercise is that someone killed and we need to identify that killer and put him/her them away before they do it again.
Persistence seems to be the name of the game at this point.
I still maintain that although the police were being rude, to say the least, that is their job during an investigation/interrogation – to make the “suspect” ill at ease, to make offensive remarks in the hopes of “getting to” the person they are questioning – throwing them off their game, if you will. I don’t think that necessarily points to homophobia. They are trying to get a rise out of the person they are questioning – it is their job to be offensive and confrontational.
I’m not convinced the cop was a homophobe. Maybe he was deliberately trying to provoke. That’s one of the oldest interrogation tricks in the book — push the suspect’s emotional buttons to get him to lose control and blurt something revealing.
“These three defense statements are absolutely convincing.”
Are you serious? These statements do a reasonably good job at raising doubts about a number of aspects of the prosecution’s case. But they are a far cry from “absolutely convincing”.
The assertion that the three defendants are all pure sweetness and light is so over the top that it’s just absurd. Dylan Ward had a portable dungeon in his room. Joe Price had BDSM porn–including pictures of himself–on his office computer. Neither of these facts mean that the defendants had anything to do with the murder of Robert Wone. But they DO indicate that we’re not dealing with three innocent little lambs here, and the defense’s attempt to paint them as such is just ridiculous.
Furthermore, the assertion that Joe Price did everything he could to help the police is clearly false. He walked out of a police interview the morning after the murder. He refused to take a lie detector test. And as far as we know, he hasn’t co-operated with the police at all since August 3, 2006. Again, this doesn’t mean he’s guilty, and you can argue (convincingly, I think) that he was advised by counsel to invoke his fifth amendment rights, because there was nothing he could say at that point that would convince the police that he wasn’t involved. But that’s not what the defense is arguing. They’re arguing that Joe did everything he could to help the police, which is simply not true.
I’m sorry, but the defense is simply bullshitting in their opening statements on several points. Does it mean the defendants are guilty? Absolutely not. But it’s a far, far cry from “absolutely convincing”.
Bill Orange, I’d venture to guess that you’re straight?
In any case, let me do a bit of ‘splaining for all our hetero friends out there*:
1. There are lots of gay guys who are into the S&M/leather, etc. scene to one degree or another. (Plenty of straights, too, but a much higher percentage of gays.) DC seems to be a particular mecca for this, for whatever reason … for god’s sake, there’s a whole leather/BDSM convention here every year in one of the big hotels. I personally find that scene pretty creepy, but I have known plenty of nice and decent gay guys who you’d never guess were turned on by it, but are. I’ve basically come to understand that it’s a kind of sexual playacting with roles, costumes, and props rather than an expression of real desire to harm other people. If you rounded up every person within a 10-block radius of 1509 who was into BDSM to some degree … well, you’d need a pretty damn big paddywagon.
2. Similarly, there’s a whole huge multimillion-dollar industry that makes and sells the kinds of sex toys found in the house – plus some that are even creepier. A *lot* of gay men have sex toys. A lot have sex toys that they don’t really use but just bought (or were given) because owning them was a naughty turn-on in and of itself. (This is true of straight people, too, I’d venture.) If you rounded up every person within a 10-block radius of 1509 who had a few weird gay sex toys … well, you’d need an even bigger paddywagon.
3. There is a whole huge multimillion-dollar industry of websites where gay men go to exchange nude pictures of themselves – often just for titillation, sometimes to hook up. I’d venture to bet that the majority of DC gay men below a certain age have x pics of themselves on their computers. If you go on one of the big websites like Manhunt during work hours, you will find that many guys go online there when bored at the office. (Lots of straight guys surf porn at the office too, as we know.) For a high-powered DC lawyer like Joe Price, who I’d imagine practically lived at the office many weeks, it’s even less surprising he’d have such pics there.
So in short:
– The evidence of Dylan and Joe and Victor’s sexual interests and practices is really not so weird or scary. There’s nothing about it that’s inconsistent with being a decent and honorable person.
– If people were convicted of crimes based on what their fantasies are, what sex toys they own, and how much porn is on their computers, a hell of a lot of us would end up in jail. (Yeah, I’m talkin’ to you.)
– The DC cops’ lack of familiarity with gay sexual culture clearly, in my opinion, caused them to misunderstand and *way* overvalue the importance of the sex toys and porn that they found. In short, it made them exclaim “Aha! These three guys are secretly twisted sadistic sexual deviants like Jeffrey Dahmer … case closed!”
*To all my gay brothers: Sorry to let the nice sweet innocent hets in on all our dirty little secrets (and on Pride day, no less). But there it is.
Talking about weird, you are either stupid or living in such a little mental/social ghetto you have a distorted view of how many are just like you.
You wrote:
“*To all my gay brothers: Sorry to let the nice sweet innocent hets in on all our dirty little secrets (and on Pride day, no less). But there it is.”
I am gay, and I resent your ludicrously over-generalized characterization of gay people. Ridiculous. Your gay world is NOT the gay world.
And equating x-rated pics with the shit this trio was up to is either disingenuous or stupid.
The scene I described is not *my* gay world, either. But I can assure you that it is the world of quite a few well-educated, well-off, 30- and 40-something gay males in the greater Dupont Circle area of DC.
I stand by what I wrote. As a gay person, I resent your generalizations.
Moreover, I hadn’t noticed that you Nate were the poster, so I no w re-state what I wrote below about your posting on the intruders in the neighborhood. I now simply do not think you are an objective third party.
You know what’s really interesting? It’s that every week or so we have a gay man who lives very close to the trouple, knows everything about their innocence and home, but doesn’t know them at all. Isn’t that odd?
That said, Gay Brother, wouldn’t you say having your personal S&M porn on your silk stocking law firm computer was, how shall we say, INCREDIBLY STUPID?
GREATEST POST EVER!
No, it’s not odd. It’s one of the trouple or their friends.
“Bill Orange, I’d venture to guess that you’re straight?”
Guess again.
Ha ha … one never knows, do one? 😉
OK fine. Lifestyle choices aside, what is your theory of what happened that night?
I answered this question below when you asked it two hours ago.
Oh, sorry. I see that now. You don’t have one.
I don’t know about the poster to whom you addressed this elucidation but I hate to break it to you; gay people have no monopoly on kink, not by a long shot.
I am certain that I have posted here to the point of annoyance to others that interest in BDSM does not in and of itself indicate any predisposition to criminal actions any more than being a good chef indicates a predisposition to stabbing people. I will say though that hording photos of yourself in sexual situations on your work computer would indicate to me a lack of normal understanding of boundaries in a person of any orientation, and that prolonged drug use does in fact have known correlations with criminal activity.
Thank you. I’m one of the vanilla hets here myself, but my wife and I hang out in some sex-positive circles, and I’ll endorse that characterization.
Nate, I’m glad you decided to return since you are the only advocate for the defense side of the story that actually addresses the issues and facts in this case. I am glad to hear a plausible, logical analysis of the other side. Not everyone here is a part of the “paranoid lynch mob.”
I agree that Nate is the only advocate for the defense side who actually addresses the issues and the facts, and is a reasonable educated individual.
Yes, keep it up Nate, it’s interesting.
Nate is the only poster we have seen who is consistently pro-defense and worth reading.
I was surprised to find that of all the defense openings, Bernie Grimm’s was the least impressive. He actually argued that if the Judge knew Joe Price’s character, she would have to acquit. If Joe or anyone were to start testifying about his allegedly stellar character, that would surely open the door to the prosecution’s putting on all kinds of other character evidence including, I would imagine, that relating to his “avant garde” sexual lifestyle and the photographs and equipment found on his computer and in his home. Not a good place to go. The other two defense attorneys did a much better job at succinctly summarizing the flaws in the prosecution’s logic and theory. I agree that if these guys wanted to actually do a good cover up, one or more of them should have “seen” or “heard” the intruder, and the murder weapon and Robert’s possessions including wallet, watch and Blackberry should have been disposed of.
Leo, it seems to me Nate just made, I think, a strong argument that practicing BDSM and having porn on one’s computer is not in and of itself an indication of one’s character, but it’s the only argument that you specifically raise. Do you have an argument against the points 1-3 that he made above? Are you specifically suggesting that people uninterested in such activity are less likely to sexually assault others?…
I think the only point about raising evidence of the “toys,” etc. is to show that they had the means to engage in a few of the specific acts suggested by the evidence (e.g. using an e-stim to bring about orgasm on a possibly unconscious person). Otherwise, there are a number of points we know of that conceivably could speak to Joe’s character, though mostly within the context of this case (asking for Kathy Wone to waive attorney-client privilege; questions already raised about his reactions to finding Robert and delay in calling 911; etc.).
I look forward to any comments from the legal professionals here on the relative weight given or claimed for character evidence and what kinds of evidence might be more relevant, particularly in a conspiracy case.
Character evidence — trying to argue that one’s prior behavior on a given occasion is evidence that one has a propensity to behave this way — is generally NOT allowed in a trial, with a number of exclusions and exceptions that rivals the hearsay rule in complication and difficulty. I agree that engaging in BDSM does not mean you are a murderer or other criminal; I was pointing out, however, that if you open the door to the issue of your character by proclaiming what a fine, upstanding, trustworthy and honorable citizen you are, you invite the prosecution to rebut your assertion of the same with anything and everything they could possibly dredge up (rumors of drug use, porn photos of oneself on one’s work computer, hanging out with miscreants like Michael Price and his cat-torturing pal, etc etc) to cast aspersions on your assertion. It’s because this kind of smearing is NOT fair and is prejudicial that the rule generally excludes this kind of evidence.
Thanks, Leo. Nice to know that Grimm’s appeal to the judge based on painting Price as an upstanding character will carry little or no weight.
Just because a defense attorney argues one type of evidence doesn’t mean he’s thrown open the barn door. If you argue D is peace loving, the govt can present evidence of violence. It can’t throw open your nightstand drawers and catalog your sex toys.
What about Joe’s (rumored) drug and alcohol abuse problems? Again, just like their alt.com ad, the gov’t might not be bringing that up anymore. Still, as an outside observer, it’s relevant. Maybe not legally, but when you’re trying to make sense out of this bizarre crime against a friend.
Leo, if every person in the DC Metro area straight or gay that also has what you call “avant garde” (but are in fact old as the hills) sexual interests were automatically suspect in murder cases you would have so many suspects to choose from you would be hard pressed to keep track of them all. Even moving into the smaller subset of outliers to which Joe and Dylan belong who have tastes that involve the infliction of and desire for considerable physical pain you find a huge population. There are even theories, well founded and considered sound in analytic circles, that people who have these needs and who are able to express their desire for pain or degradation safely sexually become more sound of mind by doing so, not less.
I will say again that the wild card here is not sexual taste, it is drug abuse.
The question of “character” is complicated. Mr. Grimm says that Mr. Price is a gentleman of high moral character, who would never murder anyone. That in turn results in the question of what defines one’s moral character. Nate is the best spokesman for the defendants, and he says that, in the gay community, keeping BDSM on one’s office computer is not unusual. That is, it is difficult to define the standards for moral character. I agree. I have a hard time defining moral character in the straight community. I have to go to church once a week to contribute to that process.
I don’t think that “character” is a useful argument either for Mr. Price’s innocence or for Mr. Price’s guilt, let alone with respect to his housemates.
So based on the evidence, what is your theory of what happened that night?
I don’t have a theory, as I’ve said, because the evidence is so clearly botched, misread, and incomplete.
Imagine if we read that the D.C. cops found a body in a room with a sailor’s hat on its head, a rubber chicken on one foot, and the sports section of yesterday’s Washington Post sitting nearby. Sure, we could sit around concocting plenty of fun scenarios, but in the end we’d have to admit that we (and the cops) needed a lot more evidence to actually solve the crime.
Nate, suppose the person found in your scenario was known for always wearing a baseball cap, wearing a now-missing rabbit’s foot on his boot, and never reading the newspaper or showing an interest in sports; along with other unusual evidence, like no blood around and signs of things being cleaned up, an “admission” of removing the knife from the body and “wiping away some blood,” and a seemingly delayed 911 call.
Would you consider that the crime scene might have been tampered with? –Because that’s the “crime” at issue here–tampering, conspiracy. Certainly what goes on in the comments section here is sometimes simultaneous discussion of a seeming coverup and inevitable conjectures about the comission of the murder itself. But the point is that because of this coverup, we don’t have the evidence to solve the underlying crime of murder; we can at best come up with plausible scenarios. It’s important, however, to keep them separate. What do you think about the evidence thus far of a coverup?
Good questions, Donna. I think it’s unclear whether the facts point to a coverup, or to incomplete/faulty evidence-gathering by police. If there were ever a crime scene that begged for thorough, professional forensic investigation, it was this one – and as we’ve seen, that just didn’t happen.
In fact, it seems like the *only* intensive forensic work the cops did was to look for physical evidence of the supposedly cleaned-up blood. Traces of blood (or bleach etc.) should have been relatively easy to detect, if they were there. But what did the investigators find? Zero. Zilch. Nada.
“I think it’s unclear whether the facts point to a coverup, or to incomplete/faulty evidence-gathering by police.”
That’s precisely the question the Judge is going to have to answer, after all the evidence and arguments are in the record. If it remains “unclear,” the defendants will be found not guilty. The prosecution has to make it clear. There’s a lot of debate right now whether they have done that. I think they have made some good points, but whether they’ve done enough to prevail beyond a reasonable doubt, no one can tell. As someone else said, this is a difficult case. The benefit of having a judge rather than a jury decide it is that she will understand the burden of proof and know exactly how to use the evidence that’s been presented. She will decide whether one side or the other’s theory is more plausible and then balance all that against the prosecution’s burden of proof. I imagine she is as unclear at this point on how she’s going to rule as the rest of us. It will take quite a bit of sifting and pondering.
“I don’t have a theory, as I’ve said, because the evidence is so clearly botched, misread, and incomplete.”
…or tampered with, perhaps?
Perhaps. Perhaps not. Quien sabe?
although previously i was out to “lynch” the 3, according to Nate, i did find the defense opening argument convincing, when related to VICTOR. i am really unconvinced that he knows anything.
You know what’s really interesting? It’s that every week or so we have a gay man who lives very close to the trouple, knows everything about their innocence and home, but doesn’t know them at all. Isn’t that odd?
I was thinking this same thing.
I think it would be easy to live near them, not know them, but have a strong opinion about them from things seen in the press and on TV – especially after the story in the Washingtonian magazine. When I lived on Capitol Hill, I didn’t know any of my neighbors. If a person on the same block had been involved in a murder case, it’s possible I would have been very much aware of the situation.
Yeah, I don’t think it’s very odd at all. It’s a very dense area of town, many people work late hours, the layout is not necessarily conducive to meeting your neighbors (e.g., no yards, no front porches, fences between the back patios/decks). I lived around the corner for many years and knew very few people in my immediate neighborhood; however I certainly knew the neighborhood well, and as a close neighbor would certainly find myself being interested in the case enough to look around the exterior of the house and poke my head into a message board devoted to such. It really doesn’t seem that strange to me.
Last night’s episode of 20/20 on the Riley Fox murder case in IL was eye opening for it’s expose of how police and prosecutors work:
http://abcnews.go.com/2020/
Tasso,
This Riley Fox case is a window into what happened in the Wone case, except conspiracy by the government more easily provable.I can’t wait till these superstar defense attorneys turn to offense.
Holder should pull the plug on this incredibly embarrassing prosecution to which his name is linked & could use it as a way to honor Wone by making it a learning opportunity to make sure these kind of malicious prosecutions don’t happen in the future.
Question for the lawyers: Is the whole “truth” versus “not for truth” issue going to have any impact on the defense team? The judge seemed to hint at this here. My understanding of what she was saying is that the defense can’t use their own videotaped statements “for truth” without actually taking the stand. Is that correct?
Prefacing what follows with the caveat that I am not a criminal lawyer, I read the Crawford case and some of its progeny, including the Second Circuit Court of Appeals decision in the case involving the obstruction of justice conviction of Martha Stewart. Other lawyers are free to chime in, since this is just my interpretation of an area in which I am not an expert.
This case involves the hearsay rule and the exceptions to the hearsay rule. The hearsay rule precludes the use of an out-of-court statement to establish the truth of the matter asserted. There are a wide variety of exceptions to the hearsay rule, such as dying declarations, statements against penal interest, and excited utterances. For various reasons, the circumstances of these statements have been viewed for a long time as bearing the marks of truth. For example, if Robert Wone had still been alive in the ambulance and told an EMT “Michael Price stabbed me,” and then died, the statement would be admitted as an exception to the hearsay rule for the truth of the matter asserted.
Many of the statements made by the defendants, including their videotaped interrogations and the 911 call, could be viewed as hearsay statements since they are out-of-court statements if offered for the truth of the matter asserted. In that case, a decision needs to be made whether an exception to the hearsay rule applies.
For many years, materials such as 911 calls and videotaped interrogations were admitted as evidence, especially in cases where the prosecutor might not want to subject a witness to in-court testimony, such as cases involving violence to children or sexual assaults. These cases involve a Constitutional issue regarding the Confrontation Clause. The Constitution says that a person charged with a crime has a right to confront his accuser. This issue was addressed in the Crawford case, a Supreme Court decision by Justice Scalia.
In the case, the defendant stabbed a man. Both the defendant and his wife were interrogated by the police. The defendant said it was self defense. The wife told the police she was not sure whether the man who had been stabbed had a weapon, putting her husband’s self-defense claim on shaky footing. At trial, the wife refused to testify. The prosecution sought to present her statement during the interrogation. The defendant objected on the basis that he was denied his Constitutional right to confront the witness (his wife) whose testimony was to be used against him. Justice Scalia agreed with the husband (following a long digression into the history of the Confrontation Clause in England and its meaning in the 1700’s, etc.)
The opinion discusses the application of the hearsay exceptions to what Scalia refers to as “testimonial” statements. The opinion holds that the Confrontation Clause of the Constitution effectively precludes use of a testimonial statement (such as a videotaped police interrogation) where the witness does not take the stand. If the witness is not available to testify, the defendant is denied his or her right to confront the witness. Justice Scalia’s opinion left open several issues: where is the dividing line between testimonial and non-testimonial statements and what exceptions apply to testimonial statements. Justice Scalia suggested that testimonial statements by co-conspirators were covered by an exception.
In Martha Stewart’s case, Martha and her stockbroker were interrogated by government investigators. The government sought to introduce the statements to show that Martha and her stockbroker conspired to prevent the investigators from learning the truth. Martha claimed that the videotapes could not be used against her as evidence “for the truth” of the alleged conspiracy. The Second Circuit held that statements made in furtherance of a conspiracy to obstruct justice can be admitted.
The Second Circuit noted that no conspirator in an obstruction of justice case will make completely untruthful statements. There will be enough truth in the statements to make them appear credible. As a result, the Court of Appeals permitted the statements to come in against Martha Stewart and her stockbroker. This decision is based on language in Crawford regarding an exception for testimonial statements by co-conspirators (which are admissible).
The stage is set in this case for the defendants to claim that the 911 call, statements at Swann Street on the night of the murder, and the videotaped interrogations may not be used against them as evidence “for the truth of the matters asserted.” This leaves the question of whether the defendants are available to testify.
The defendants have the right to take the stand in their own defense to face these charges of obstruction of justice, tampering with evidence, etc. If one or more of the defendants does not take the stand, how can they then claim the benefits of the Confrontation Clause? Can it be used as both a sword and a shield? I think this is what the judge is driving at.
It may seem unfair, but if all three defendants (as a matter of trial strategy) fail to testify, it seems pretty cheeky of them to claim that their statements should not come in for the truth of the matters asserted (subject to some sort of Stewart analysis that acknowledges that someone who wants to obstruct justice puts some truth and some lies into the story to weave a credible story).
Again, take all of this with a grain of salt, but I think this may be where the judge is going. She is putting both the prosecution and the defense to the test.
DC probably has a whole statement rule which allows the party against whom a statement is offered to demand the whole statement be admitted so that the different parts of the statement can be understood in context. It should be in the local rules of evidence.
According to the defense (I wasn’t able to copy and paste) Mr. W was “immediately dead” after being stabbed, and would have been dead “within four or five seconds.” How then to explain the “grunts” or “screams” (extremely different, mind you, but given as testimony at various times by either Zaborsky or J. Price) heard for clearly more than four seconds from their upstairs bedroom and apparently heard afterward as stated by J. Price, who said Mr. W was making utterances as he sat by his bed.
Also, how did the defense concoct the story that the prosecution has Mr. W getting up to respond to a knock on the guest bedroom door and getting stabbed? Also, the defense spends a lot of useless time bldg up the RW and JP friendship as a defense against the possibility of JP and buddies being complicit in a cover-up of murder. There have been father/son murders, mother/daughter murders, lover murders and best friend murders throughout human history. The defense’s build-up of the friendship as a defense of J. Price, Ward and Zaborsky crumbles against the backdrop of senseless murders of family members, friends, and acquaintances throughout history.
Or the continued electrical activity recorded by the EMTs in the ambulance.
Thank you Nate for telling it like it is. I posted here yesterday that I did not find the prosecution’s statement all that compelling and immediately it was suggested by a poster that I go jump off a bridge. Several more commentators joined in that chorus. Hats off again to the editors for making all of the documents in this case so readily available. People with open minds can read and judge for themselves.
Our eds said in their initial coverage that Bernie seemed to be off-form that first day and that seems to have been the case. He rambles more than Kirschner even, though he hits the necessary points.
Reading Schertler, it strikes me more strongly than ever that the defense medical and knife/fiber experts will be key to this case.
Connolly played it short and sweet. I have found him the most impressive to date throughout, based on our eds coverage.
Also, for food for thought, check this out, from a case that this case often echoes in many ways:
http://www.cnn.com/2010/CRIME/06/11/amanda.knox/index.html?hpt=Sbin
There’s one thing that I’ve neglected to mention and that may help explain the perspective I bring to this case:
I used to live within a block or two of 1509, some years before the Wone killing. During the time I was there, *two* of my neighbors were senselessly attacked by intruders who climbed the back fence and forced their way into the house. The first neighbor, a young woman, was ambushed in her bedroom, threatened with a gun, and raped. The second neighbor, a man, was surprised in the middle of a weekday afternoon by an intruder who grabbed a kitchen knife and stabbed him repeatedly.
In the case of the rape, I was the one who came to the victim’s aid and saw the D.C. police respond in all their incompetent glory. Just moments earlier, the rapist, stark naked, had fled by scaling a tall iron fence. (Yes.) The cops took their good ol’ time about going in pursuit of the naked man running somewhere through the streets, but finally went and hauled back some random unlucky – and fully clothed – black guy, whom they dragged in front of the just-raped woman and asked her to ID (totally illegally). Fortunately, she had the presence of mind to say he wasn’t the rapist, and they let him go. The case was never solved.
All of this is to say:
1. It’s a big bad city, boys and girls, with a lot of weird and crazy (and drugged-out) people doing a lot of weird and crazy shit, some of it involving climbing fences and breaking into random strangers’ houses.
2. Hercule Poirot, Sam Spade, and Philip Marlowe are not members of the D.C. Metropolitan Police Department.
Nate, I was enjoying your posts up until this one. You just put too much icing on the cake, and now I suspect you are not just an objective third party. Your earlier analysis was well-put regarding the reasonable doubt that may exist here (personally I lean heavily against your view, but i understand it), but now you are venturing into kitchen-sink type defense arguments.
I’m not quite sure what you mean. I was just being honest and sharing experiences/information that seemed relevant. In any case, no one (lawyers and judges and police officers included) is wholly objective … each of us brings our own background and attitudes to bear on a case like this while trying our best to apply thoughtful, logical analysis.
If you want to believe that my experiences prejudice me, you may. Other readers – especially those who live far, far away from 1509 Swann St., NW, Washington, DC 20009 – may choose to think that it provides some useful context.
Again, I agree with you that the police in this case were totally incompetent. But I still think the evidence suggests that the defendants are guilty.
Agree. Can’t deny the 14-44 minute delay in calling 911, the lack of blood, the tampered knife, the dead-to-nuts lies told by defendants (to cops, to friends) set against the background of the intruder-who-leaves-no-signs-on-the-fence and who leaves OVER the fence instead of through the gate. Joe really blew the last one – was the intruder worried that if he left the gate unlocked that the trio would be robbed? Absurd.
How did Victor travel back in time on the 911 call to say that the back door was unlocked when the trio didn’t “discover” this for another fifteen minutes? How did Dylan come to say to first-arriving cops “we heard the chime” when in fact he did not hear a chime? How did Joe and Victor incorporate the wrong time-stamp of 11:43 if they never discussed it? The list is far too long and this is not a murder trial but for lying to the police (among other things).
It is a standard defense tactic in any case to attempt to shift the focus of the case from the actions of the accused to someone else, usually the police, I am not saying that’s unfair, that’s just our system. But if this judge is doing her job she will look at whatever competent evidence the police managed to gather, look at the post-slaying statements of the accused and determine if they are so inconsistent as to amount to acts of intentional obstruction or not. In my view the claims that the police could have done more, should have done other things, should have saved some other evidence are mostly red herrings.
Nate: It is a big, bad city, and mean streets abound. But that was news to Price and Co., who said, despite their years of urban living on the Hill and Dupont, were said to be cavalier about locking doors and setting the alarm.
I have a hard time buying their supposed lakadasical approach they said they had in terms of security. Too convenient. Not believable, at all. This ain’t Mayberry and they knew that too.
And don’t worry about spoiling anyone’s Pride weekend. It comes with the territory.
Nate:
If we take the defendants at their word, this case is an urban nightmare come true: an intruder enters the home they forgot to secure and kills a houseguest.
The two scenarios you present are eerily similar. How long before the Wone murder did they take place exactly? Is there record of the incidents in the press or elsewhere? Should the defense be aware or made aware of these if so?
The rape was in ’96 or so … the stabbing in, I think, ’02. I think the stabbing got some press, the rape not.
Was the ’02 stabbing solved? Do you think it is possibly connected or just relevant generally? If it was in the same neighborhood four years earlier, should someone have made a connection (not doubting you nor begging the incompetent cops question, just thinking out loud)?
I’m not sure if it was solved or not. I don’t think so. I didn’t mean to suggest that it was directly connected (the thought never occurred to me) – just offered it as part of the local context.
Also, Nate, the two crimes you use as a basis for your argument of frequent intruder-based crimes were crimes in which an intruder was actually seen, heard or witnessed.
Again, no evidence in THIS particular crime that would lead an investigator to believe an intruder was involved.
Nate:Then, given the crime frequency that you describe in that neighborhood, please tell me why in the world, the trouple plus Sara (who tried to correct the situation) did not lock their doors in routine manner?
I was just appalled that Sara testified that she came home and found the front door unlocked. Not only unlocked, but Joe P’s keys in the door.
Something very very wrong in this behavior.
If Joe was so great a friend of Sara ( I guess it was really Victor who was the close friend) why in the world did he not respect her wishes and not give a key to Michael. And keep the doors locked and the alarm on?
And why did she stay in a basically unsafe place?
Was she not afraid of what she might find arriving in her apt or in the house?
Is this why she fled to her friends home so often? She did not feel safe?
These are question that I wish that either the prosecution or the defense had asked her.
Was she living a fantasy for another goal (she liked living in that area or perhaps she just liked the trouple). After all, she went to Italy with them. Or whatever. Did she not sense danger and then act on her sense? (At least she took care of herself and got a lawyer.)
She is very very fortunate that she left the house the evening of August 2.
We really do not know what went on or would have happened to her if she were there.
Also, she might find herself sitting as part of foursome in a conspiracy trial.
She must have a super guardian angel.
Damned if I know. Now ask me why Albert Einstein was always forgetting to zip his fly.
So much for respectful dialogue.
adios Mr. Nate.
Eagle,
Flip responses are typical when you present a legitimate argument. I find it complimentary that a legitimate counter-argument cannot be offered. LOL
It is a big bad city, Nate. And random crime such as what you describe happens every day in every city. However, what happens with most frequency (3x more frequently, in fact) are acquaintance murders.
You are 3x more likely to be murdered by someone you know than by a stranger, and if you are murdered by a stranger, it is most likely during the commission of another crime such as robbery (if you are male) or rape (if you are female). There are myriad statistics out there to support this.
So, Nate, beware AND aware.
Thanks, CD. Henceforth I shall always carry a can of mace when around my loved ones, and never go out alone at night in areas where friends and family might be lurking.
Nate, it’s statistically accurate.
In addition, one need only look at the circumstances of THIS crime. The absence of forced entry. The absence of burglary. The immaculate crime scene. And inconsistancies in the defendants’ statements, as well as testimony of friends that suggest questionable behavior by the defendant[s] regarding the crime scene and events of that evening. All of these factors STRONGLY suggest that this was an “inside job.”
However, we are all entitled to our opinions.
CD makes a valid point – no need to be so catty.
Hey Nate, I too lived blocks away from 1509 Swann a number of years ago. Perhaps we were neighbors. Like Joe, I’m a gay IP attorney and while I don’t know him, I know two people who know him, one of whom I (very recently) had a conversation with. Just so we’re all on the up and up.
Back when I lived on DuPont, I locked my doors. My car was broken into, but I wasn’t the direct subject of any crime. And, against statistics, I did know the person who broke into my car. As CD says, murders are most often committed by people one knows. And while I respect your opinion about whether the evidence meets the reasonable doubt standard, I think since you’ve arrived, you’ve dug yourself in as someone who likes playing the “nuh-uh, no way” card a bit too much. In our first posts, you and I simply disagreed on whether the evidence here was sufficient, but you agreed that the intruder theory didn’t “make sense”. So now you think it was an intruder? Please explain. Thanks for participating – it’s good to see someone who someone whose read everything and is willing to discuss the evidence and (1) what likely happened that night separate and apart from (2) what one thinks the verdicts will be.
I’d assumed you were only disagreeing about #2. Has that changed?
“The second neighbor, a man, was surprised in the middle of a weekday afternoon by an intruder who grabbed a kitchen knife and stabbed him repeatedly.”
Did the police ever catch that attacker? MO strikingly similar to that asserted here!
Did the attacker clean up the crime scene or did the attacker leave behind some evidence of an intruder (e.g. fingerprints, footprints, any signs of entry, blood trail, blood splatters, DNA, etc.)?
I’ll agree with #1, and I suspect Joe and Friends were often part of that group.
But Nate, I am sure that you would agree that in the two instances you mention of home invasion there was probably evidence of forced entry? None in this case, instead, we have a back door that was left open because one of the defendants stated he wanted to go out into the back yard to look at a bug on the back porch light.
Again, I haven’t made up my mind on this case but attacking the Police department also seems like a classic defense tactic red herring to me. As I say in another post, the issue is whether based on the competent admissible evidence and the statements of the witnesses there is enough to convince the judge that there was an obstruction of justice.
Oh Nate, what a disappointment. You are not personally acquainted with a person who was stabbed with their own kitchen knife by an intruder somewhere in the blocks near 1509 Swann in the years before Robert’s murder. Those my friend, are lies.
Anna, “my friend,” before accusing me of lying, please take a look at the following:
“Confronting A Burglar, District Man Is Stabbed,” Washington Post, July 27, 2002, page B3.
Nate, again, the two crimes you use as a basis for your argument of frequent intruder-based crimes were crimes in which an intruder was actually seen, heard or witnessed.
Again, no evidence in THIS particular crime that would lead an investigator to believe an intruder was involved.
Believe me, if there was ever a crime involving an intruder with similar MO as this case, the defense would have been all over it. There simply was none.
The case you cited above does not help the defense since no burglar would enter a fully occupied house, stab a sleeping occupant to death, and leave without taking any valuables. Not to mention that even if someone was stabbed while asleep, the victim would have had some sort of response and if the victim was killed instantly before he could even flinch, how could a dead man grunt???
Absolutely, Jo. The vast majority of intruder-based crimes result in robbery, rape or kidnapping.
Re the grunting, it amazes me that the defendants’ counsel is arguing a case by NOT taking into account the defendants’ own statements. In my opinion, that makes the defendants appear to be liars.
Nate, my deepest apologies. I was totally out of line. That is very interesting information. I won’t try to make excuses for calling you a liar, that was just rude and stupid of me.
Nate, without purchasing the entire article, here are the first two paragraphs….
“Sgt. James Somers of the 3rd Police District said that the burglar apparently approached the man’s house from an alley, climbed over a 10-foot fence and pried open a sliding glass door to the basement.
One floor up, Somers said, the burglar encountered the man. The two ended up in the man’s bedroom, and the burglar demanded more property, though Somers would not say what items were asked for or taken.”
Differences in this case and the Swann Street case….
Burglar in 2002 case was looking for valuables. Nothing taken in Swann Street case.
Burglar in 2002 case scaled the fence and most likely left evidence as such (although unnecessary to determine as the burglar was seen and it was obvious that there was a burgler). No evidence of an intruder in the Swann Street case.
The burglar in the 2002 case was seen by the home owner. No such sighting in the Swann Street case.
What I’m getting at is that there is CONCRETE evidence that there was an intruder in the 2002 case. Not so in the Swann Street case.
Anything NO burglar, no matter how crazy would do, such as sexual abuse or unexplainted needle punctures simply resolves this case against the defense. My understanding is that the former is not being introduced by the latter is compelling. (To be clear, there is plenty of other evidence absent these items but either of these would make this case closedin my view).
The physical evidence of sexual abuse and needle punctures is dubious at best … not to mention illogical.
Nate:
The semen evidence has not been introduced at trial and may not be. Even if it is, it can only be presented as the result of a test, not as evidence of sexual assault as that is excluded from this trial on the governments own decision.
Likewise, the needle marks are in evidence only because they were noted by the ME, but not as evidence of paralytics or chemical restraint which have also been excluded from this trial. The EMTs and ER nurse indicated that at least some of these were not from efforts to save Robert and were not shaken on cross, though defense experts may be able to dispute this if lawmed, a poster from earlier this week is correct.
Illogical? To say the least! Robert’s own semen was found in his rectum. The posters on this blog can explain that, but only by way of consensual sex. Given there is no evidence Robert was gay, how else can that be explained, except in terms of a sexual assault?
There is testimony that the needle punctures were pre-mortem, therefore not part of an attempt to revive Robert. How is that dubious?
Well said! Some posters seem to want to ignore or play down evidence that doesn’t suit them, while giving credence to hypotheses that seem much more dubious…
The ME could only say perimortem, not definitely pre or post when it came to the needle marks if memory serves.
Also, to the extent that there was semen in the groin and perianal area, there is a possbility that the person performing the sex assault exam was careless or poorly trained, resulting in contamination. I’ve seen reports by SANE nurses that did not stand up to close scrutiny. Not saying that is what happened but it is a possibility.
Themis, you may be right about perimortem vs. premortem. I am looking for the relevant information, but I think it is premortem.
As for groin area and perianal area, no way. It was clearly in his rectum. Or as Nora so eloquently put it a while back, “way up there.”
Doesn’t it seem odd that the defense attorneys say there was no second towel when clearly in Zaborksy’s Interview Part I, pg 7 line 24-25 he states “And at that point Joe was already applying pressure to the wound.” “I gave him another towel.” Another towel means two.
Agree. Another is another.
And what the hell was Joe doing while Victor was fetching towels? Why not use the one sitting next to him – but of course the wound wasn’t bleeding all that much; they simply had to lie to get it captured on 911 that “my partner is applying pressure.” Can’t have it both ways.
“(The MPD) has inflicted unforgivable anguish & damage to the Wone family” – BenFranklin
If you genuinely gave a crap about the anguish inflicted upon the Wone family, you’d be as ‘outraged’ at the Trouple’s insensitivities and cruelties.
Did Joe Price’s air-stabbings and deathgrunts- made right in Kathy’s face- inflict any anguish? Yet that ‘sudden, forceful, unexpected’ display of impossibly insensitive cruelty hasn’t seemed to merit much outrage on your part at all.
What a disingenuous and hypocritical crock of crap…
I still can’t wrap my mind around why JP would do the stabbing motion and make the three grunts to the newly widowed Mrs. Wone. To say that it was incredibly cruel and insensitive was an understatement!
In my opinion (putting aside the unnecessary and ungenerous back-and-forth among some of the postings), Nate has his finger on the issue here — is there sufficient evidence to persuade the Judge beyond a reasonable doubt that the defendants tampered with evidence, obstructed justice, and/or conspired to do either or both? If so, they will be convicted.
Then, perhaps one of them (not likely Joe, though there is wisdom in not ruling out the unexpected in this bizarre case) may have something to say in the pre-sentencing phase about what he knows and has heretofore chosen to conceal with respect to the events on the night of August 2, 2006 at 1509 Swann Street; and if that happens, then the question in which we on this blog are all most interested — but which is not likely to be conclusively addressed at this trial — may be answered: Who Murdered Robert Wone (and maybe why and the circumstances of same, which remain far more difficult to sort through, in my mind, than the question that the Judge must decide).
One question I have for the gay readers of this blog…
I’m not meaning to defend the MPD’s actions but I do sometimes wonder- if the MPD hadn’t found any of the torture/BSDM toys and cadaver books- would they have been so quick to rush to their theory about ‘gaying’ Robert up?
I personally feel that if the suspects had been straight males- and Robert had been a “Roberta”- and was found murdered (and possibly sexually assaulted) – and those same BSDM devices had been found (or equivalent ones) – it probably wouldve prompted investigators to be more suspicious than if they’d found, say, cookbooks and rosaries.
Does it seem reasonable to people- particularly gay participants here- that it was Dylan’s shocking (to many) array of torture/degradation equipment that especially prejudiced the MPDs?
I have to admit- they probably wouldve prejudiced my view, too. Absent those accoutrements, i’d be far less inclined to speculate about, well, acts of bondage/restraint/assault…
And if that was the case, was it unreasonable
Good question, Denali; Dylan’s treasure trove has probably influenced a lot of the thinking about this case, whether the prosecution explicitly cites it or tries to admit it into evidence or not. I’m sure the cops were thinking they’d hit pay dirt with this find and that the three residents were going to have to “come to Jesus” now.
I don’t think the detectives that question the defendants in the early a.m. hours knew anything about the “treasure trove.”
Search warrants weren’t executed until a significant time later.
In any event, I’ve never found offensive that particular detective’s inference that being gay had something to do with Robert Wone’s murder. It’s a murder investigation. Numerous theories would/will be played out by the detectives to solve the crime.
And who knows? It could still have something to do with Robert’s murder.
PS….I’m gay.
Agree. If this had been a straight woman found stabbed to death in the house of three straight men, I think the very first question would have been, “Which one of you was fucking her?” The interrogations would have gone pretty much the same way, with the police suggesting that this was a drunken gang-bang, and they stabbed the victim as soon as they started to sober up. And I’m gay, too.
So you’re saying that there would have been the same assumption by the police interrogators, whether gay or straight scenario. That one of them (some of them, all of them) were/wanted to “boink” him.
I’m saying that they would’ve at least asked them about it.
I am not sure I understand why the distinction between gay/straight in your question. But, in any event, Dylan’s practice of BDSM, his apparent interest in (fascination with) torture and death, and all the implements in his closet that indicate he wasn’t just vicariously into that stuff, is very significant to me in formulating my opinion that these guys did it.
I believe that Dylan was the impetus of something that went terribly wrong.
And, as you indicated, if cookbooks were the only thing found in Ward’s closet, and he did charity work cooking holiday meals for the local orphanage, my stand on who did it (i.e., intruder or defendants) would be much more cloudy. Without all of Ward’s stuff, you have a respected attorney, a respected marketing man, and a guy with cookbooks and rosaries in his closet. Hardly sinister.
These are just my gut feelings. I understand that gut feelings are not evidence and don’t mean someone is guilty or innocent.
“his apparent interest in (fascination with) torture and death”
There was one point about Mr. Ward’s trove that always seemed particularly striking. According the charging affadavit, Mr. Ward’s BDSM books had underlined and highlighted passages.
My old statistics textbook has underlines and highlights. I never marked any book that I read for pleasure. Maybe Mr. Ward was studying for a role, rather than indulging a personal taste.
No way to know, and it probably doesn’t matter anyhow.
Mr. Ward told the police that he left Mr. Wone to take his shower, circa 10:45pm. He heard Mr. Wone take a shower, and heard the latch click on Mr. Wone’s door about 10pm.
Mr. Wone’s body was found lying on his back on top of a neatly made bed with a folded back coverlet. His clothes were found piled in disarray. Mrs. Wone testified that her husband didn’t shower at night, and always neatly folded his used clothes and put them inside a pillowcase he carried with him for this purpose. Two towels, suitable for a shower, were found neatly folded in his room. This evidence is uncontested.
The prosecution contends that this evidence shows that Mr. Wone never went to bed, didn’t take a shower, and never got to take off (or at least put away) his own clothes.
Mr. Ward’s story, innocuous in substance, requires Mr. Wone to do his various evening ablutions at times when Mr. Ward is awake and less than thirty feet away. Mr. Ward’s story cannot be true if one accepts the prosecution’s contention. Instead, something different happened. I expect that the prosecution will contend that Mr. Ward was awake and could not have missed that something different.
There is more, but the sample above is enough to make the point. This argument has nothing to do with Mr. Ward’s character, his career, his living arrangements, his sexual tastes, or the contents of his closet.
Also, Joe and Victor claim they knew that Dylan was asleep in his room the whole time, but they also claim they were upstairs together, so how could they know.
The exclusion of the BDSM evidence from this case, so as not to unduly prejudice the jury, puts the remaining evidence in a much different light and makes the case much more difficult for the prosecution. Again, I wonder if the judge would reconsider that ruling, given the bench trial. It would take guts to ask her, but . . .
Reading the opening statements by the defense attorneys reminded me that the defense have their tricky problems, too.
1) All three attorneys elected not to explicitly argue that “maybe one of the other defendants did it.” This choice precludes some persuasive arguments for innocence or reasonable doubt for their clients individually.
2) The defendants voluntarily provided the police with a detailed recital of their actions. Each defendant’s account is generally consistent with and generally corroborates the accounts of the other defendants. That enhances their credibility.
However, there is also a downside. If one significant part of one defendant’s story is shown to be false, in many cases it will follow that other parts of other defendants’ stories must be false as well. So, there is a sense in which the defendants’ entire narrative stands or falls together, and the defendants stand or fall together.
3) Since the defendants provided this interlinked narrative, and they are being tried for conspiracy and obstruction, the concept of “reasonable doubt” arguably attaches to the assertions made within the narrative itself. It isn’t sufficient for the defense to argue that “the investigation was botched, and we can’t figure out what happened.” All three defense attornerys are forced to argue (though not prove) that the entire narrative is substantially true.
4) This creates some quirks: the defense must assert that the prosecution’s intruder argument (Michael Price) is absurd, but the defense’s intruder argument (somebody else) is what actually happened. Yet the evidence that tends to support or refute the intruder theory does so independently of the identity of the intruder. [OTOH, that Michael Price has an alibi witness, whom the prosecution (!) will call, is a big problem for the Michael Price theory].
5) The defense has to explain the absence of blood, and they have lined up witnesses to do so. I expect, that these witnesses will argue that ‘no blood’ requires instant death. Instant death is a poisoned chalice for the defense, because the defendants’ story requires Mr. Wone to have been in bed for nearly three-quarters of an hour, and to have moaned or grunted loudly enough to rouse the household at least twice after he was dead and incapable of motion. Mr. Baker’s (the EMT) observation that Mr. Wone had been dead “for some time” must be wrong as well. The defense may have a good further explanation, and I am looking forward to hearing it.
Well said as usual.
Personally I’m glad that the BDSM evidence is off the table. I have said before that if Robert’s DNA wasn’t found on any of it I’m not interested in it. As for that Cadaver book and books about murder I have the first book myself and lots of people (millions, maybe billions) read murder related fiction; it’s a very popular form.
Like I’ve said before, Dylan is the one person of the three that I really don’t have a good “read” on. His “fascination” with BDSM, torture, and death seem quite clinical to me, almost like someone who’s studying for a test. I can’t tell if these are things that he’s truly interested in, or if he just decided to read more about them at the request of Joe Price. I’d be very curious to know who bought all the books and the BDSM gear.
Good point, BillOrange. I doubt Dylan’s credit card was used – unless Joe pays the bill each month. That the gear was stored in Dylan’s room doesn’t make the gear Dylan’s – that is simply WHERE that gear is used. Joe has a wife and a (BDSM) concubine. Because Dylan must ‘study’ and ‘prepare’ I’d have to guess that he’s trying to satisfy his role with Joe. Very telling that Joe is the one on alt dot com trolling for thirds – would that not mean too that Joe would be the one selecting the thirds? Seems like a job for the decision-maker, bottom or not.
Seems like Joe can’t get enough.
(please ignore my last redundant & incomplete line- I’m typing in iPhone and had a leftover line from an earlier paragraph that wasn’t visible in the text field when I hit publish….)
Methinks all this talk about who’s gay, who’s not, matters not.
It’s the lack of blood, the wiping up of blood. That’s the obstruction. It matters not who is gay or who plays with what.
Yes, something went terribly wrong that night and an innocent man died at the hands of his “friends.”
A stabbing in the shower after Wone died helped create a fairly clean crime scene. What little blood remaining that didn’t wash down the drain was wiped away by “friends.”
The disappearance of the blood didn’t result from an over-achieving intruder’s clean gene. Rather it was conveniently taken care of by a “freaked out” conscientious “friend” who just so happened to be a clever story-telling attorney.
DCULater – Agree.
With all due respect to Nate, who’s contrarian commentary I appreciate, Dyl’s collection would concern me – even as a trick. Sadly, had Mr. Wone really known the true nature of his “friends” I doubt any sleepover would ever have been contemplated.
What I also find upsetting, as I have become fascinated by this case, is that these three give all gay men (which I am a member of that tribe) a bad name. A name which we have worked decades to de-stigmatize.
There are several aspects to this case that make it of interest. From a legal standpoint there isn’t any direct evidence that I am aware of that proves any of the defendants manipulated the crime scene or conspired to cover up the crime. In stating this Im making the assumption that all of the defendants statements are going to be considered as hearsay. What we are left with is a crime scene that had remarkably little blood especially if we consider the MEs testimony about the amount of blood recovered in the autopsy – here again there may be interpretations and errors to consider.
The stab wounds and no defense wounds are not easily if at all explicable. But this is not a murder trial and as evidence of a cover up these do not indicate directly a conspiracy. The testimony of the police as to cobwebs and dust etc does appear to be legitimate. There could have been errors there too but without clear testimony or evidence that refutes this it needs to be considered as inidactive that the intruder neither entered or exited over the fence. The delay in the call is also a problem for the defense but perhaps the neighbor who heard the scream got the time wrong and again is their testimony trustworthy. Lack of evidence of sn intruder doesn’t prove the guilt of the defendants.
The judge I expect will adhere to the letter of the law which a jury might not. The judge is also in a position where even if the evidence points to a cleanup it doesn’t point to which of the three might have done it and whether it could have been done without one or two of the three knowing. I personally don’t find an unknown intruder story compelling. I also don’t think it could have been suicide. It could have been another party known to Wone with some as yet not disclosed motive but that still doesn’t adequately answer the missing blood question unless you believe the ME was mistaken.
Hi Leonard,
What do you make of the 14-34 minute time delay in calling 911? Or the use of identical wording in the story (including incorporating the incorrect 11:43 time stamp, complete with Joe’s denials)? There are many other things which, to me, add up to a guilty verdict on all charges against Joe, obstructions and conspiracy against Victor and Dylan (though admittedly, Dylan appears to have the least amount of evidence against him).
Again, the reminder that even the proverbial “smoking gun” is circumstantial evidence. Given the charges before us, I’m not sure what direct evidence would be likely anyway.
TV listing Friday: “NewsPlus With Mark Segraves” (WDCW at 7:30) moves to a new time, and Segraves leads a discussion about the death of Robert Wone.
Did anybody watch this?
It is supposed to air again this morning at 10AM
I saw this – doesn’t give any new or interesting information, Segraves does most of the talking, summarizing the case for viewers. He finally lets Doug (one of the blog creators) get a word in. Doug is an intelligent, well-spoken guy. Segraves mentioned that the blog is a “goldmine” for journalists, with links to all the relevant legal documents.
Does anyone know at what time tomorrow the trial is scheduled to resume?
Interesting notes form the second court in the Martha Stewart case re Crawford.
Here, Defendants do not have the temerity to argue that somehow Crawford precludes the government’s proof of the Defendants’ false portions of their statements because they were provided in a testimonial setting. Crawford expressly confirmed that the categorical exclusion of out-of-court statements that were not subject to contemporaneous cross-examination does not extend to evidence offered for purposes other than to establish the truth of the matter asserted. * * * Defendants object that certain truthful portions of their statements made during the course of the agreed-upon obstruction must be excluded because they are “testimonial.” On the facts of this case, where the object of the conspiracy is to obstruct an investigation that is engaged in obtaining those testimonial statements of the conspirators, that objection must fail. * * *
As noted, the admissibility of such totally false statements, made in the course and in furtherance of the conspiracy, suffers no Sixth Amendment bar under Crawford. The truthful portions of statements in furtherance of the conspiracy, albeit spoken in a testimonial setting, are intended to make the false portions believable and the obstruction effective. Thus, the truthful portions are offered, not for the narrow purpose of proving merely the truth of those portions, but for the far more significant purpose of showing each conspirator’s attempt to lend credence to the entire testimonial presentation and thereby obstruct justice.
It would be unacceptably ironic to permit the truthfulness of a portion of a testimonial presentation to provide a basis for keeping from a jury a conspirator’s attempt to use that truthful portion to obstruct law enforcement officers in their effort to learn the complete truth.
The judge seems to be keeping this analysis in mind.
Just to illustrate the background in the Stewart case, the government sought to use statements made by two other defendants against Martha Stewart when she was tried for obstruction of justice. (Although many people thought Ms. Stewart was being tried for insider trading, the government basically prosecuted her for lying to investigators and not for the underlying crime.) Ms. Stewart apparently concocted an explanation for her stock trading, after the fact. The explanation was partly true and partly false. Ms. Stewart tried to keep the other defendants’ statements from being used because those defendants would not testify (and could not be cross examined).
Bea
I think it all hinges on the admission of the testimony of the three defendants. If the judge excludes it as hearsay then it comes down to physical evidence and witnesses called. If it is admitted, then it becomes a matter of picking it apart in light of the evidence. The matter then sits in the judges hands as to whether there are specific deliberate false statements on the part of each one of the defendants and the state of mind of each at the time. This is particularly important for Victor. If he truly believed what Joe and or Dylan told him and repeated it that’s different than knowingly relating false testimony.
In his case one point that might be a problem is he does say “I” heard the scream – I think it was on the 911 call. By saying that he is providing a testimonial that he heard it himself and that he and Joe came down immediately. In most other statements Victor says “We”. If the testimony is not hearsay I would expect a conviction might be likely for all three barring new evidence. Without it I couldn’t say how it might come out. The secondary question behind the conspiracy is of course why would they cover up a crime in which they had no personal liability? One possibility is each thought one of the others did it but wasn’t sure who.
I ran into a guy from the neighborhood on Swann Street on Saturday a few blocks from his house, and he was bubbling with the idea that the three will be found not guilty. Of course the significant fact is that he himself was, in the opinion of many in this neighborhood, rail-roaded himself judicially and sent to jail for a period. Naturally, he is skeptical of the police, and I don’t blame him for that. But I think it is going to take more than that kind of skepticism to get these three off.
The neighborhood guy proclaimed the theory that Dylan Ward had been quite active sexually and therefore had a lot of jilted lovers. But can any of this possibly explain a murdered friend over for the evening, and no real evidence anywhere around? Sadly, the charge they are being tried for is probably the right one. There may be more to this story than anyone will ever know, but skepticism and ascriptions of police overzealousness will not quash a simple fact. Robert Wone was murdered in that house, and the three have to know something about it.
I am unconvinced by the defense’s arguments; they mostly amount to: “Price and Wone were such good friends” and “The crime scene is too bizarre to be a fabrication.” In the case of the former, anyone who has studied domestic abuse knows that intimacy between people is no safeguard from the worst kinds of victimization you can imagine. As for the latter, the idea of an “intruder” creating such a scene is even more farfetched.
The defense seems especially desperate in quotes like this: “And on top of that shed is a pair of sunglasses that’s simply unexplained, consistent with the outside intruder theory.” Guys, it’s the city. If I had to account for every discarded object on my block…and anyway, it was after eleven at night. Who are they saying the culprit was, Corey Hart?