The Civil Complaint: Something Old, Something New…
With the turn of the leaves in DC comes a new turn in the Robert Wone civil case. (Cue legal filings falling to the ground…)
Filed this week a new motion; one that shuffles the deck for both plaintiffs and defense in the civil case. Submitted by Stephen Rodger for Ben Razi and the Covington team on behalf of the Estate of Robert Wone, the Consent Motion for Leave to Amend Complaint now sits on Judge Brook Hedge’s desk. Both sides are in agreement and this consent motion for the amended complaint is likely to be granted.
One month after Dylan Ward’s indictment and arrest in late October 2008, Kathy Wone’s civil team filed their first complaint. In may ways it was a cut and paste job that relied heavily upon the often shocking and lurid accusations of that warrant.
Covington and Patrick Regan seem to be jettisoning what didn’t work in the criminal trial and doubling down on what did. What did work in their estimation is simple: call it Judge Lynn Leibovitz’ Greatest Hits. That, after the jump.
In any other case the changes probably wouldn’t attract attention, but there are differences between the 2008 complaint and the one filed this week. Subtle differences, but ones that may shape the case, from the discovery process all the way through the October 2011 trial.
Regarding the parties in the case, the who of course remain the same. What’s changed is where.
There have been questions as to where the defendants are living. This filing suggests that Price and Zaborsky were each “…until recently a resident and citizen of the District of Columbia.” So make that whereabouts unknown for the domestic partners. Perhaps striking their current residences from this document was an agreed upon accommodation for the defense consent?
As to Ward: “…(he) is believed to be a resident and citizen of Florida, residing at 550 NE 94th Street, Miami Shores.” This is the home Price and Zaborsky own in Florida where Ward lived at the time of his arrest. We were perhaps misdirected by the State of Washington notary stamp on Ward’s interrogatory response, but now there are indications that may not be the case. The geography just got more confusing for Ward: on trial in DC, his lead attorney in Portland, Oregon, all the while living in the Sunshine State.
Both documents run sixteen pages and some sections they are nearly identical in many regards, namely the seventeen points of facts regarding Robert’s murder. From there the complaints diverge.
Generally, amending a complaint is a non-controversial motion as plaintiffs adjust and focus their argument based on new evidence and developments. In the Wone case, the criminal findings and evidence introduced inject a new, and unusual, element – namely suggestions of serious wrong-doing, but failing to meet the lofty BARD threshold.
The 2008 document had a section entitled, “New information regarding defendants’ conduct and their cover up of Robert Wone’s murder,” that cribbed much of the affidavit language that included sexual assault, swapped knives and the plethora of S&M toys found. The amended complaint does away with that but adds language with perhaps greater weight – Judge Leibovitz’s scathing findings from her verdict, to start.
In the criminal trial the defendants offered a wall of testimony – that they don’t know who stabbed Robert Wone, while maintaining that none of them committed the crime. However, paragraph 26 of the amended filings begins the recitation of Leibovitz’ hard-nosed findings:
“[t]he government has . . . presented powerful evidence to support its claim that Robert Wone’s murderer was either one of the defendants, or someone known to them who was able to enter without breaking.”
“[i]t is very probable that the government’s theory is correct, that even if the defendants did not participate in the murder some or all of them knew enough about the circumstances of it to provide helpful information to law enforcement and have chosen to withhold that information for reasons of their own.”
“…the murder of Robert Wone was not committed by an intruder unknown to the defendants…Overall, the defendants’ story that an intruder committed the offense is incredible beyond a reasonable doubt.”
“In the criminal trial, the court found that “Mr. Price very likely tampered with and altered the murder weapon, and that he lied about his conduct in this regard to police with obstructive purpose (United States v. Price, et al.,)”
This document is obviously written for Judge Hedge but the plaintiffs may have others in mind. The jury that will be seated next October will be reading this complaint word for word and those passages could be searing.
This amended filing cites the same four counts: Wrongful Death, Negligence, Spoilation of Evidence, and Conspiracy. Not necessarily new, but look through all the counts – gone are allegations of sexual assault, gone are discussions of fibers, gone are charges of chemical incapacitation and missing knives. In the criminal trial, these three avenues were losers, and they have now dropped from the plaintiffs’ road map.
So what does this mean? Legal scholars will weigh in, but what seems clear is that there is a metamorphosis occurring on the part of the plaintiffs.
Amended Complaint – September 29, 2010
Original Complaint – November 25, 2008
Can the lawyers please weigh in on this? Is this a viable way of putting Judge Leibovitz’s opinion in front of the civil jury?
Lawyers, like generals, always tend to fight the last war again. Nevertheless, trying to use Lynn to please Brook and her future jury may be not enough to get a significant verdict. But that’s just me!
injection of new, unusual element… nice one Dougy Fresh.
@Michael: Shout-out to Craig, who deserves at least as much credit for this one. Always nice to have news.
-Doug, co-ed
Great job, Craig and Doug!! When, though, will the priceless Green Picture from Mr. Ward’s Flickr account be posted in the Media Gallery? Many readers did not get a chance to analyze the rare photograph’s aesthetic and forensic dimensions because someone pulled it down very shortly after the picture’s discovery via Google.
“… until recently a resident and citizen of the District of Columbia.”
For Victor and Joe this appears on both the 2008 and new 2010 complaint. Do I recall correctly that they were living with Victor’s Aunt Marcia in the Maryland suburbs during the trial?
I wonder if they’re still with her?
Kate, Aunt Marcia’s McLean Hamlet ranch house is in “my country” of Virginia.
Joe and Vic at Aunt Marcia’s, without Lil Dyl? What ever will they do for Halloween now?
Ah, hah, thank you, Muse – I knew their safe house was somewhere in the region. Virginia is “my country,” as well.
As for Halloween costumes, I have a few suggestions:
It’s a financially tough year for the Three, so perhaps Victor can recycle that ol’ Milkman ensemble, complete with a crisp white shirt and trousers, black bow tie and the white mustache.
For Lil Dyl – he is in the Sunshine State and I think he’d look quite spiffy with a bowl of fruit on his head – Carmen Miranda.
As for Joe – no costume required, he’s creepy enough as is. (Yes, that’s rude of me, but I’ve lost all objectivity when it comes to Joe).
Cheers,
Kate
Yes, Kate, it is a shame that the Three can no longer fit into their Cerberus get-up of last year.
While performing the Eleusinian mysteries this fall amongst the autumn leaves of either McLean, Tacoma, or the elder Zaborskys’ Pa. hometown, however, the possibly fractured Triple Alliance will put their best game faces on and go as Larry, Moe, and Curly in their golden mean of middle-age. The Pyrrhic victory of Lynn’s “cold comfort” may make them turn from classical to pop culture references, but their costumes will be just as ironic as before.
I also do wonder if Joe and Vic will go to Homecoming at William and Mary. If so, will they be embraced by the gay alum and student groups there as Christian martyrs who came to Jesus?
Kate and Clio,
Thanks for the laughs! I imagine as Halloween approaches, more costume speculation will be posted.
Perhaps their friends/attorneys will go as the “three wise monkeys” who traditionally are seen as “ee no evil, hear no evil, speak no evil,” or maybe the “Swann 3” will go as the monkeys under the Japanese interpretation of the monkey trio, which comports more with pleading the 5th:
From Wikipedia: “The concept of the three monkeys originated from a simple play on words. The saying in Japanese is “mizaru, kikazaru, iwazaru” (見ざる, 聞かざる, 言わざる, or with the suffix in kanji, 見猿, 聞か猿, 言わ猿), literally “don’t see, don’t hear, don’t speak”.”
Actually, I don’t know that the jurors would ordinarily ever see the complaint – plaintiff may well change that by way of trial theatrics – but note I don’t practice in DC. Other lawyers?
Could the plaintiff’s have amended the complaint so they could introduce Judge L’s comments during the trial?
I don’t recall a complaint ever being admitted in any of my trials.
With regard to getting Judge L’s opinion in front of Judge B, the best way is simply a motion for partial summary judgement (with the opinion attached), asking Judge B to hold that certain facts exist as a matter of law because there was a judicial determination made with regard to those facts by a court of competent jurisdiction after a full evidentiary hearing on the merits, where the Defendants had the same or greater interest in disputing the existence of these facts. Or, in legalese, Defendants are collaterally estopped from relitigating these facts.
Cat:
I don’t recall a complaint ever being shown to a jury either. Certainly not in any of my trials. I can’t think of a reason to do it, most being chock full of legaleze, etc.
I think there is a little gamemenship going on.
It is not unusual for the defense to agree to the filing of an amended complaint. Usually, amendments to complaints are granted without much fuss (unless you are right at trial).
By the defendants agreeing to the filing of the amended complaint does not mean that they won’t fight it once it is actually filed, with a motion to dismiss or strike certain portions.
90% chance, in my opinion, that they will file a motion to dismiss or strike the portions of the complaint (once it is filed) that refer to the criminal trial and any orders in that trial, since they were acquitted and the criminal court proceedings and findings are not really relevant to the civil case.
The defendants will argue that the references to that order are irrelevant, frivolous, and are just put in to harass and embarass the defendants.
In Illinois, we have such a provision in our Civil Rules to dismiss or strike statements or allegations in a pleading (like a complaint), based upon these arguments.
Here’s the bad part. I could certainly be wrong, and can’t look into the mind of the civil court judge, but I think that there is about a 90% or more chance that if such a motion is filed by the defense that the civil judge will grant it, and these provisions in the complaint will be “stricken.”
Just my opinion. Any legal beagles or others disagree?
After reading my post, above, I think I should clarify some things.
First, I am not giving the defense any “hot tips.”
It is elementary Civil Procedure 101 that with any complaint, first or amended ones, the defense always looks very carefully at it to determine whether they can file a motion to dismiss or to strike certain portions of it.
Anyone just out of law school should know this. The defense attorneys for the Swann 3 are very experienced, and know very well the legal options when confronted with an amended complaint like this.
Secondly, many on here may wonder, if the complaint or amended complaint is not shown to the jury, what’s the big deal if it contains some things the defense does not like? Why waste time on a motion to dismiss or strike?
Good questions both.
But the answer is fairly simple: The complaint by the plaintiff and the answer by the defendant are called the “pleadings” in the case. They set the issues that will be fought at trial.
Whether or not the “pleadings” are shown to the jury, you want them, from both sides perspectives, to be “lean and mean,” meaning not including any extra materials or wording not needed, for, if no other reason, the appellate clurt(s)to have a clean unconfusing record of pleadings to go over if (I’m afraid in this case that it is more like “when”) the verdict or issues in the case are appealed.
The civil judge is also very aware of this, and wants a “good” complaint to be in the pleadings in her court, not one full of extra things not legally relevant to the proceedings before her.
Also, when it is time for the parties and judge to work on the written jury instructions that will be read to the jury at the end of the trial, and go with them to the jury room, the parties and judge will have to fashion what is called an “issues” jury instruction.
This “issues” jury instruction basically advises the jury what the legal and factual issues are in the case. For that, the parties and judge look to the complaint and answers, the causes of action pleaded and possible affirmative defenses filed in the answer.
The point being, it is more efficient to try to trim down the pleadings when they are filed, rather than arguing over what can be put or not put in the “issues” instruction to the jury at the end of the trial.
Clearly, Mrs. Wone’s attorneys are interested in having references to the criminal trial in the jury instructions, and the Swann 3 attorneys are just as interested in getting them out.
If they are not in the pleadings, it is likely that they will not go in the jury instructions.
So, the defense will file their motions to dismiss or strike now, after the amended complaint is filed, rather than later.
Usually, civil rules in federal courts and all state courts say that the defense is given around 30 days to “answer or otherwise respond” after an amended complaint is “filed.”
The phrase “otherwise respond” means a motion, like a motion to dismiss or strike.
So, we can look forward in quick terms (at least in this case quick means a month) to seeing what the defendants’ attorneys do with this strange amended complaint.
By the way, found something interesting in looking at what the Swann 3 filed at the beginning of the civil case, including their motions for protective order and motions to stay.
Suggest everyone re-read those items, as they set forth the 5th Amendment arguments of the defendants, and include other interesting tidbits.
You can read them under “legal documents” in the top tabs on the blog.
It appears that the defendants never actually answered the civil complaint, in terms of admitting or denying the allegations, as originally filed.
They may have filed something called an “answer” but it does not admit or deny the allegations of the complaint, and relies upon the 5th and its filed motions for protective orders and for stay of the civil case.
Since the defendants have not really filed a legal answer, in my view, the parties may not be “at issue” because the pleadings are incomplete, and I am a bit surprised that they are all talking about discovery when there has not been a legal answer filed.
In any event, with the filing of this amended complaint, the defendants will be forced to either do an answer to the amended complaint or file the motions described above. Or they could do both, answering certain allegations and moving to strike the others (including references to the criminal trial).
In any event, I would certainly expect the defendants, if they are answering the amended complaint in any fashion, to not really “answer” the allegations of the complaint with “admit, deny or state why you can’t do either” as is usual, and we will just see a lot of 5s bandied about, as with the discovery “answers.”
Bruce, does taking the 5th over and over again endear oneself to a civil court judge and jury who are deciding over property issues and not over life-and-death matters?
The civil proceedings began before they were stayed to allow the criminal court to proceed. Now, that the criminal court, and not the defendants themselves, has pointed to the likely involvement of at least one of the three in this murder: shouldn’t Lynn’s conclusions be introduced?
The trouple’s 5s, of course, will not stand up against Lynn’s Aces, to any conventional jury member, but, at least Robert may get a little justice after all.
Clio,
Yes, civil jurors generally have a problem with defendants who plead the 5th. While Civil Courts cannot force Defendants to testify, they can (and typically do), permit the jurors to assume the worst about the Defendants because they won’t testify.
Of course, our fear for Robert’s family is that Defendants will plead the 5th and the jury will find for the Plaintiff and award Robert’s family a bazillion dollars they will never see. . . and no one will ever know the truth about what happened in that condo on August 2, 2006.
House, not condo.
House of cards.
House of cads, not cards.
BTW, thanks, Cat. That is a depressing prospect, though: a civil court victory with no clear-cut assignation or explanation of guilt. I shudder at that increasingly likely future.
Wouldn’t they be obliged to pay a percentage of their annual incomes–when and until the $ is paid off, and or until they are knockin’ on heaven’s door?
Sadly, only if Kathy’s lawyers continue to pursue it. The process to collect a judgement is cumbersome and time consuming, as any parent who was stiffed on child support can explain.
Plaintiff’s counsel can spend months getting a court order to attach wages from one job, and the defendant can simply quit that job, wait a bit, maybe move, and take another. Plaintiff then has to start all over again.
Thinking about the future of this case makes me sad. Over the years, I’ve talked to so many people who came to me to seek justice, and I’ve had to explain that our civil system is not a place to seek justice. It is a place to seek compensation for an injury wrongly inflicted, and if you use the system to pursue something else, you are very likely to be disappointed. I’m afraid we may all be disappointed in our pursuit of justice for Robert’s family. Yet, I still have some hope of a break that will lead to the truth.
In the very least the fine attorneys at C&B can hound the trio of cads from now ’til kingdom come. I hope these men get no rest and their very existence is plaqued by the repercussions of this crime.
Thanks, Cat. Garnishments–was the word I was thinking of. Thanks for explaining how that works.
The way it seems to be–realistically or not–is as Cicero put it: While there’s life, there’s hope.
And between now and the far off time that the case begins, anything can happen. I’m hoping, and maybe holding out for, Justice.
Since Kathy is a lawyer, she well may find satisfaction in making this her primary hobby, if not her livelihood.
She and the rest of the pro bono attorneys at C&B.
Joe’s rep isn’t free.
Someone, somewhere will be breathing down Joe et als collective necks for cash.
For Mrs. Wone’s health and future happiness, I sincerely hope you are dead wrong.
Her attorneys can do everything.
Bea: Then I must’ve misread your email from last night! LOL.
Strike the aforementioned legal thingie in the post by the guy who is NOT the attorney. PS: I like penguins.
May have bungled it myself! The plaintiff won’t be handing out copies of the complaint, but it puts the defense on notice that they’ll be doing handstands to figure out ways to get Leibo’s findings “in front of the jury” – not sure just how, but I’m guessing they’ll be quite inventive!!! So, that’s to say the gist of the post may well be true – just that the jurors won’t be ‘reading’ it.
Re collateral estoppel, I just don’t see it – think we’ve had legal scholars jump in on this not working. That said, again, Covington will spend serious time making sure they get as much in front of the jury as possible – even if as “question formatives” in cross examination. I don’t know the first thing about whether the criminal trial is even technically ‘relevant’ or off-limits in the civil case – the defendants “won” but the crushing dicta would likely have impact on the jurors.
can they call a criminal trial judge to be a witness in the civil trial?
nevermind….I asked that before and the answer was no.
During my lunch break I did a little light reading of the posts from the opening days of the criminal trial. After a quicky review it appears that the Plaintiffs will present a case quite similar to that of the criminal prosecution – with the one big exception of the cutlery set and knife switch-aroo theory.
If I recall correctly, the prosecutions theory of a sexual assault gone afoul was not presented in the actual trial. In retrospect, this was probably a wise move on the prosecution’s part, for the evidence would never have passed BARD, especially in a bench trial with a judge like Judge L. in the chair.
My question is as follows: Is this a wise plan for the plaintiffs in the civil trial?
As we have learned from our great legal minds, the burden of proof is somewhat lower in civil proceedings. Also, this will be a jury trial, with twelve men and women who are going to want to know WHY one or more of the defendants drugged, incapacitated and murdered their friend.
I realize that the plaintiffs do not need to supply a motive, but the WHY is rather like the elephant in the room.
Your thoughts would be greatly appreciated,
Kate
Yes, Kate, it would be a shame (and another strategic blunder) to have Covington leave the WHY question for historians to answer. Juries, unlike the Olympian Lynn or Brook, have inquiring minds that just want to know!!
I am wondering if the amendments to the complaint, which center the case precisely on the issues “found” by Judge Leibovitz in dicta, are an attempt to end-run the defendants’ 5th Amendment refusals to answer interrogs and testify in depositions. If the issues in the civil case are limited to those in the criminal case, that is, they don’t involve murder, then the defendants will not be facing additional criminal charges based on their testimony in the civil trial, and their 5th Amendment claims will be rejected.
Ohhh, good point, legal minds would that be the case?
I don’t think the civil trial can essentially “prohibit” anything which might turn up evidence of murder such that the 5th wouldn’t work. BUT I doubt the judge will allow the 5th to deflect EVERY question posed. It’s risky to take the 5th in the face of all the logic of the plaintiff’s case – 4 guys in a house that wasn’t broken into; 3 live past midnight and one is brutally murdered. Do the math.
Then the 3 all take the 5th – no matter what experts say about how long Robert lived, or even if the jurors don’t believe the Thomas’s testimony putting the delay into play, simply taking the 5th will make each juror think THESE GUYS DID SOMETHING WRONG and WE DON’T HAVE ANY OTHER REASONABLE EXPLANATION OF ROBERT BEING MURDERED.
Finally, even if they take an easier route and say, well, we can’t find them intentionally causing his death, they damned well could have done something to prevent his death and that was a deliberate decision on their parts: find the defendants liable for one or more counts.
Hell, even if they convince a jury that they left the door open and a Ninja Intruder DID come in the house, they are still culpable in Robert’s death. In that scenario, it was their shared negligence and action/inaction that caused Robert to be murdered/die.
Can we get a lawyer to weigh in on the whole 5th Amendment issue? My understanding is that you can invoke it only to avoid criminal prosecution, not to avoid giving information in a civil dispute. So they’re refusing to answer almost any question because that information could, in theory, be used against them in an eventual murder trial.
My guess is that this is being done largely to preserve their ability to appeal if and when additional criminal charges are filed. So if/when the judge rules against them on any particular question, the answer to that question probably STILL won’t be able to be presented at a criminal trial, because the defendants all made it very clear that they were invoking their 5th Amendment rights in response to the question. Is this analysis correct?
Yes as to the first paragraph. They’re doing this both legitimately and as a ‘dodge’ on committing to the facts here. We’ll see if it changes, as clearly it won’t sit well with a jury, and the judge is likely to limit the questions that are genuinely ‘covered’.
I’ve always felt the purchase of that home in Miami Shores was a way for them to put money in a home that would be safe from any loss in a court case. The owners would be required to have been living there as their main residence. If Ward is living there, it could indicate that the trio is still joined at the hip, but there would need to be a way to show that he’s one of the owners. Usually that would be a spouse or else someone whose name is on the deed. If Price loses the case to Mrs. Wone, he could also lose the house to her if he can’t meet the residency requirement.
Google maps show the house to be about 18 blocks east of I-95 and about ten blocks west of Biscayne Bay. Sattelite images show a swimming pool between the house and garage with no way that neighbors could see someone getting a massage or all-over tan out on the pool deck.
And if Price/Zaborsky lose the civil suit and are forced to liquidate property, they will be “upside down.” They bought the Miami Shores property when real estate prices were up. They owe more on that house than it’s worth.
I imagine Price still has equity in the R Street property he still owns. He purchased it in 1998.
What a luxury pay-off for the continued silence and loyalty of the talented Mr. Ward that that Miami Shores address may be: an outdoors studio in which mutual touch may be allowed and encouraged!!
Given the reaction to the airing of his own Anacostia dialogues, Culuket may want to keep on indulging his Sparkly Cat, long after the sparkle went out of their dangerous liaison.
Go ahead, Come To Jesus, Bill 2 ha…ha…You asshole.
Going down there later this month and my eyes will be peeled looking for him or them.
I keep imagining running into them somewhere snd having them engage me in a oonversation.
One can only wish…
Rich, the last thing that I would want to have happen to me in Miami would be to run into those three turkeys. No one, including yourself, should have their vacation spoiled in such a manner. And, besides, there are probably much better massage alternatives to Lil Dyl in Dade County than in DC. And, what could one talk about to them: I need my will redone, Joe; I prefer goat’s milk to cow’s milk, Victor; I think Judy Blume is overrated, Dyl. Yikes!
Clio:
A little late. Just saw your post.
No interest in a massage from Dyl whatsoever. However, there could be a good visualization, though. 🙂
He is cute, I think.
Just would love to engage them without them knowing my knowledfge, just to see what I learn.
Won’t happen.
But, wouldn’t that be quite the post:
I just had drinks with the Swann 3….
That’s called stalking and is illegal (and considered creepy) for a reason. Jesus, you’re even an asshole in your dreams.
AZ:
Have you ever bothered to read your posts? Probably not.
Fortunately, everyone else on this site has drawn their own conclusions.
Full of venom and hate.
As for folks on this site having an opportunity to engage any of the Swann 3 in a conversation of any kind; don’t assume they are creepy or breaking the law or stalking. They are simply furthering their understanding of what makes these guys tick.
Don’t worry about anyone sending you flowers or apple juice.
It’s a long shot.
I’m sure you will have a ready response.
Don’t waste the time on the keyboard. Mature folks are not listening.
But, knock yourself out, make a comment. I know, you cannot move on.
I am. Again, I’m done with you.
J: Have you had difficulties in social adaptation since kindergarden, or was it before that?
Eagle, Mary did have a tough time raising Him, in part due to the unusual circumstances surrounding His birth.
Yet, recall that Joe may see himself as Jesus: a lowly birth to young parents in an East Texas manger, coming out and fighting for social justice against the Pharisees of the Old Dominion, and then a dutiful Son allegedly sacrificed and crucified to satisfy an angry electronic mob. So, when Detective Wagner instinctively used the expression “come to Jesus,” he may have unwittingly reflected upon Mr. Price’s grandiose self-delusions.
Wonder of wonders.
Denton:
You there or did we lose you?
Only for a bit, I hope.
Ha…aah, brother Rich,
I just have a big project that just came up in the past several days with the new re-opening of a business in the District. I haven’t even had a chance to check in with youse guys. Thanks for asking. I will get back when I am settled in. Please give my regards to the Editors, Cat, Bruce, and the “regulars.” Cheers.
Very Well.