Acquittal

But Not Exoneration

It took a sober and, at times soft-spoken, Judge Leibovtiz little more than an hour to plow through what she termed “…a very long and complicated legal trial.”  We have previously posted, and will post here again, Judge Leibovitz’ verdict in its entirety.

Because the story of today may not be just in the acquittal, but in the suggestions of guilt.

The hour long recitation of findings and conclusions swung like a pendulum – finding first strong merits in the government’s argument, then the defense.  It was like standing on the edge of the ocean while the ocean rolls in, then out.

Early on, however, there were signs that things weren’t going the prosecution’s way.  Among Leibovitz very first findings were that sometime “….between 11:08 and 11:49…” Robert Wone was stabbed.  This seemed a suggestion that the Judge was not persuaded by the government that the defendants were lying about the time line, and that Robert could have been stabbed just about the time of Victors 9-1-1 call.  Later, she returned to this point, noting that the government itself in closing statement admitted to not knowing with certainty what was happening when in the house.

She turned to definitions of “beyond reasonable doubt” and the various legal standards of proof – notably that in criminal trials.  Noting a turn from early use of “moral certainty” in U.S. legal proceedings, she noted the current standard she must follow is “evidentiary” certainty.  “This case has been a…test of reasonable doubt…” she noted from the bench.

Turning to the elements of each charge the prosecution needed to prove “…beyond a reasonable doubt…”, the judge detailed the specifics of obstruction, conspiracy and evidence tampering.  Crucial to each was demonstrating intent – specific intent to deceive, mislead, impede or undermine an official investigation.  Turning through each, a sense grew in the courtroom that the government had not proven this element in their case.

“I’m persuaded the murder was not committed by an intruder unknown to the defendants,” Leibovitz began, turning again to specific findings of fact.  Robert Wone was “…entirely immobile…” at the time of his murder.  The knife found on the scene, she said – noting testimony from Dr. Henry Lee – was “…used to commit the stabbing…” of Robert.  This replacement of the knife was an important element of the prosecutions case, she said, and they had not proven it.

“It is very likely Mr. Price pulled the knife from the victim’s chest,” she continuted, noting that he may well have tampered with the knife but she couldn’t conclude it beyond reasonable doubt.  Further, she couldn’t conclude that Price wiped Robert’s body, “…although it’s probable.”

She then turned her sights on the defendants.

“From the beginning, each one of them – Mr. Zaborsky included – displayed a demeanor wholly at odds with what anyone would expect from an innocent person who’s friend had just been murdered tragically and violently…” going on to characterize their response “dischordantly.”  defendant’s behavior was wholly at odds with normal human behavior…” adding that she found all of them acted “dischordantly” with just having found a friend murdered in their home.

Joe Price was “…arrogant, unconcerned, flippant, aggressive, self-centered and dismissive.  Mr. Zaborsky was hystrionic and tearful, but entirely passive and apparently unmotivated to help detectives…” noting his 9-1-1 statements were “…at best eyebrow-raising, and at worse calculated.

Mr. Ward was from the start distant and detached, unmoved, patient and calm.  He also was apparently unmotivated to help police solve this terrible crime.  Of which, had it truly had been done by an intruder, he could easily have been the victim.”

That said, one can only judge a person’s knowledge and intent so far by demeanor.  Another sign things of things to come.

The decisions came next, although they did not come as a surprise at this point.  Even though the judge found the intruder theory implausible (“Overall, the defendant’s story that an intruder committed the offense is incredible beyond a reasonable doubt” she said), even though the judge found it likely one or more of the defendants knew who murdered Robert Wone and/or covered it up, even though it was “…very probable the government’s theory is correct,” none of this was enough to clear the high hurdle of beyond a reasonable doubt.

Again raising the difference between moral and evidentiary certainty – in what sounded and reads like a tip to her understanding of what actually happened – she still was encountering what she termed “the math problem”: in short, a sense that while two of the three may well have been proven guilty of the charges brought, there was still a reasonable possibility that one was “…the odd man out.”  And given there being no way to determine who might be the odd man, she was forced to acquit all three defendants on all seven charges.

Citing Sir William Blackstone, she employed his famous axiom: “Better that 10 guilty persons escape than one innocent suffer.”

Judge Leibovitz apologized to the Wone family and their supporters, noting the appropriate legal findings in this case on evidentiary certainty were of “cold comfort.”

For their part the defendants reacted little – Victor shedding a tear toward the end, but Joe and Dylan remaining largely stoic.  Their families, too, seemed to evidence little joy in the verdict.  Members of the Wone family appeared genuinely distraught.  The media swarm gathered turned and looked at each other as if to say “Innocent?  Really?

No, not really.  Acquittal is not not guilty; not guilty means merely not proven.  Judge Leibovitz’ own words offer strong testimony to her understanding of this distinction.

The defendants left quickly; Bernie Grimm and the prosecution team spoke with members of the media.

Last note: we asked a member of the Covington & Burling legal team assigned to the civil case when that would begin.  “45 days?” we asked.  “No, it starts this afternoon.”

Price counsel Bernie Grimm speaks to the press

AUSA Glenn Kirschner speaks to the press