The Defendants Have a Bad Day at Moultrie
Here’s your update from Moultrie:
Today’s hearing began at 10:20 – a late start due to heavy security in the building.
On the defendant’s Motion to Dismiss: motion denied.
On the defendant’s Motion to Enjoin – the “gag” order: motion denied.
On the plaintiff’s Motion to Compel: agreement has been worked out, and deponents will have to invoke the Fifth with their own words – particularly that they have accepted the advice of counsel and will invoke. Judge Hedge ruled outright that counsel could NOT take the 5th on behalf of the defendant.
In attendance: Kathy Wone & the Wone family, the Post, Legal Times & the Examiner. Not there: Joe, Victor or Dylan.
Hearing gaveled out at 11:45. Complete update coming soon – watch this space.
“And to clarify, Judge Hedge ruled outright that counsel could take the 5th on behalf of the defendant.”
COULD?
In any event, the 5th is the 5th is the 5th. WHomever invokes doesn’t matter, right? The jury can still drawn an inference from that decision.
CD: I clarified my clarification and changed it to say “Judge Hedge ruled outright that counsel could NOT take the 5th on behalf of the defendant.” Apologies for my typo and earlier omission.
Was on my way to Moultrie and ran into a snag at 8:15am.
Could have gone late, but, thought it would appear inappropriate.
Knew Judge Hedge would take a tough line.
Look for more this afternoon.
Reposted from below. Here’s a general question for people. Which scenario looks worse to you:
(a) Someone who invokes their Fifth Amendment rights on their own when asked if they brutally stabbed a person to death.
(b) Someone who invokes their fifth Amendment rights ON THE ADVICE OF THEIR LAWYER when asked if they brutally stabbed a person to death.
Frankly, I think (b) looks a lot worse.
“(a) Someone who invokes their Fifth Amendment rights on their own when asked if they brutally stabbed a person to death.
(b) Someone who invokes their fifth Amendment rights ON THE ADVICE OF THEIR LAWYER when asked if they brutally stabbed a person to death.
Frankly, I think (b) looks a lot worse.”
To me, (b) leaves open the possibility of an over-cautious lawyer, so (a) sounds worse – especially if you have to claim the privelge on multiple occasions in a short period of time. You can practice your body-language, manner of speaking, ect, but you’re probably going to look and sound guilty.
If I were a juror, I wouldn’t even notice who voiced the claim. But if the only jurors who show up these days in DC courts are attorneys, then yeah — they’d notice. My DC friends are constantly being called for jury duty because of the low-show rate from the average citizenry. And I guess the DC courts are more “active” than the suburbs in terms of volumn of cases.
I agree, Gloria. Makes NO differene to me.
Bill O:
I think both (a) and (b) are devastating to the defense. To me, it would make no difference, so I agree with CD.
An argument can be made that if even one juror has a passing thought that the defendant was just taking his attorney’s advice, so the defendant really didn’t have a choice in the matter, then (b) could be just slightly less devastating.
But, as I say, it would not matter to me, and I don’t think it will really matter to the jury once the plaintiff’s counsel rightfully and dramatically utilizes the “adverse inferences” jury instruction to the jury during the plaintiff’s closing arguments.
While the jurors will undoubtedly be putting 1 + 1 together during all the testimony, it will be during closing arguments that the plaintiff’s counsel will have the opportunity to wrap it up all together in a nice box for them.
Defense counsel will likely not be able to say much, if anything, about the 5th objections, since the defendants will have to personally state they are taking their attorney’s advice, and motions in limine will likely restrain defendants’ counsel on what they can say on the topic before the jury.
When the trial actually is proceeding, I expect that many of us may try to time a nice little trip to DC to see those closing arguments.
Bruce: We’ve got 10 months to try to get an audio stream out of her courtroom. Could take 10 years, however.
The delays getting in to Moultrie were outragous – nearly an hour at some entrances, on a very cold day. Hedge runs a tight ship and she motored through things pretty briskly. Very up to speed on the details. She gave no hints of walking away.
Why are these extraordinary measures needed at Moultrie, of all places? It all seems part of the theater of security in our national security state: thousands standing around to make you seem safe.
Did the guards have full body scanners, or were they doing aggressive pat-downs? At any rate, why would that scrutiny create hour-long lines at Moultrie: it’s not O’Hare!
Business as usual at Moultrie.
Pat downs only happen if you set off the scanner. And, then it’s only a wand over the, “Problem,” area.
Delays are standard there.
Bruce:
“The Closing Argument” is what I would personally focus on (besides all the details throughtout the trial). Since (to me, and I don’t know about anybody else) I work with lawyer(s), the “finale” is the “grand exit” of that trial and I KNOW all lawyers live up to that moment.
Therefore, it’s a HIT or MISS to jurors too if we have “good lawyering” or “not so good lawyering.”
Any juror should not be intimidated by the aggressive presentations from the defense team. It’s so much fun and very exciting to watch/hear/see how they present the “finale” wrap up.
From the Plaintiff team, I expect to be “totally “convinced” that they “deserve” what they have come to bargain for!
Thanks for your well-crafted words to educate one of a reader (like me).
Much as the statement “someone who takes the 5th is guilty of something” is blatantly incorrect, if any defendant is asked “did you brutally stab RW to death?” and takes the 5th, the jury will take the instruction of “adverse inference” to heart.
It will be quite interesting as it goes along – and we’re nowhere near the finish line of the 5th. What if the answers are “did you stab RW?” and it’s answered “no” but the 5th is taken to “do you know who stabbed RW?”. That’s where the ‘didn’t keep him from dying’ part of the complaint becomes useful, particularly if all three answer the same way. It may be that they’ll all claim the 5th on ‘did you stab him?’ but my guess that not even the defense lawyers know yet.
Agree that it was a very good day for Plaintiffs, not that I thought it would be anything other than a very good day.
Bea: Judge Hedge made it sound like we may see additional 5th issues down the road and possibly with the depos. The full report on today’s hearing goes up in the morning.
“What if the answers are “did you stab RW?” and it’s answered “no” but the 5th is taken to “do you know who stabbed RW?”. That’s where the ‘didn’t keep him from dying’ part of the complaint becomes useful, particularly if all three answer the same way.”
Is that a permissible use of the fifth amendment? I thought you could only invoke to protect yourself from a criminal charge, not a civil one.
I hate to say this, but what’s to keep them from simply lying in response to the second question? Why would a murderer or accomplice flinch at the thought of saying he didn’t do it and doesn’t know who did? They’d kill someone, but by Jove, they’re not going to lie!
Carolina:
You make good points. Also, exactly how would the defendants saying “no” I didn’t kill Mr. Wone, “no” I don’t know who did, and “no” I didn’t do anything afterwards to try to cover up anything…
…incriminate them? They have already said as much in the police interviews. On the stand are they going to say something different than they did in the police interviews?
I imagine at some point here the defense counsel should re-visit the 5th Amendment objections affect on a jury, and possibly change their strategy. They have the ruling now on the motion to dismiss.
I look forward to our kind and resourceful editors further break down of today’s hearing tomorrow. Of most importance to me is exactly what the judge said in regard to the motion to dismiss/summary judgment motion. Did she leave the door open for a summary judgment on the statute of limitations isue in the future?
A great day for Mrs. Wone!
“I hate to say this, but what’s to keep them from simply lying…”
I agree with you that none of these three would have any ethical qualms about lying under oath, but there are a number of practical problems they’d face. If they get caught in a lie, they could wind up back in criminal court facing perjury charges.
Furthermore, Covington knows MUCH more about the defendants’ backgrounds than the police knew on the night of the murder, which means that they can ask a number of “new” questions that are both relevant and potentially VERY embarrassing to the defendants. They can lay out a minefield of perjury traps in their depositions. I think that’s exactly where this is heading, and the defense teams know it.
Their clients are going to get dragged through the mud, and they need to do their best to keep their clients from (a) committing perjury and (b) having to say extremely damaging things about themselves in open court.
I do agree with you, Bill O.
It is just that the adverse inferences regarding the defendants’ invocation of the 5th and not testifying on the stand to ultimate relevant at issue questions, in my opinion, is going to be a ticking time bomb virtually guaranteeing plaintiff’s win.
Of course, the ultimate goal of the defense is to protect the defendants from a murder charge or further criminal charges. They would prefer any type of money damages to that.
Maybe it is time for them to re-think defense strategy now that they have today’s rulings and have to fully understand the effect of the adverse inferences on the ultimate jury verdict.
Of course, it would be best for us and Mrs. Wone if they answered all the questions.
Probably will never happen.
The defense is in a very bad place right now. Not that they don’t deserve it.
Bill O:
Wish I knew criminal law better.
Maybe Kiki, when she gets time, can answer the question of what possible post-murder charges, if any, the Swann 3 could be now subject to, since they can’t be subject to the charges that were in the criminal trial due to double jeapardy.
I think we were typing at the same time (or I didn’t see your post). They’ve not been tried for accessory after the fact or before the fact. You’d be surprised to see how creative prosecutors could get – won’t mean they’ll be successful, but if ONE of these defendants is the killer, the other two are likely guilty of something other than conspiracy, obstruction, and tampering. Many laws are on the books – as an example, don’t forget the cops who were acquitted in state court for beating Rodney King were later convicted on federal charges.
Duelling computers. Thanks for that info, Bea.
Bill O, yeah if they’ll lie then how they’ll use the 5th may be a moving target of strategy we may see a lot of. Is it a ‘permissible’ use of the 5th to say “no” to did you stab RW but take the 5th on “do you know who did” as you ask – I could see arguments that it is if the first answer is a true answer. In other words, if a man (let’s call him Victor) answers ‘no’ to ‘did you stab RW’ but takes the 5th on ‘do you know who did’ he could be making the claim that he’s guilty of something tied to that other man having actually stabbed RW, such as lying about it to authorities and taking such action that might be characterized as ‘accessory after the fact’ (or ‘before the fact’ depending on those facts) and THAT/THOSE crimes have not been the subject of a prior trial (unlike conspiracy, tampering, obstruction).
Like I said, there’s a very long way to go on the 5th, who and when and on what questions it will be invoked.
Is the statute of limitations still running on possible accessory charges?
There is no statute of limitations on murder, but in looking at DC Code it seems that for all other felonies the SOL is 6 years.
The time is ‘running’ – I suspect (and hope) that prosecutors are well aware that six years and one day after Robert Wone’s murder is the date by which charges must be filed for any felonies related to the murder must be filed (except for the murder itself).
If illegal acts occurred after that date, the 6 years would start running literally the day afterward (for example, if disposing of evidence occurred in 2007 – note I am not professing to know whether an accessory charge would stand separate from the 3 charges for which the defendants have been acquitted except to say there is a distinct code section on ‘accessory after the fact’).
Whew – that was long and boring!
Gloria: You and your friends may be right that DC courts are more active than VA/MD but I can’t say if it’s due to volumn of cases. Maryland is very active in cases too as you know there have been a lot of recent crime committed in PG county. I served 5 weeks in 2008 at Moultrie and I am called again on a Federal jury selection for a special case right after New Year at USDC. I think it just that DC is probably one of the well known lawyers’ town.
Interesting. I get called for DC jury duty every two – two and a half years, and have no idea how that frequency compares to other jurisdictions. It doesn’t seem onerous to me. And I’ve never been on a jury; enough others show up that I wind up surplus to requirements every time. Usually get a lot of reading done that day!
I live in Montgomery County, MD and — in 35 years — have been called twice but sent home within an hour because the cases were settled before the trial. I’d like to be on a jury before I die, but at this rate, I’d have to live to be 150!!
(a.)
(a) looks REALLY bad.
(b) is normal practice.
I’m not sure if I agree with you on your take on (b), at least once you get into the courtroom. I’d say it’s fairly normal practice for a defendant to not take the stand at all during a criminal trial. But it’s got to be pretty odd to be invoking your fifth amendment rights on a question-by-question basis, particularly when it comes to questions about your phone number and who you live with. And especially when the invocation can be used against you. And if I see your lawyer telling you to invoke on things like this, I’m going to conclude that either your lawyer is a complete moron, or he (and correct me if I’m wrong, but I think they’re all “he”s in this case) you’re a murderer and that you absolutely shouldn’t answer that question.
Also, I think this judge is going to have very little patience with the defense lawyers here. My expectation is that they’re going to argue that they should advise their clients to invoke if the answer to a question MIGHT be incriminatory, and that they have no idea if the answer to the question actually WILL be incriminatory. So, for example, I expect all three teams to argue to invoke on the question of whether or not they stabbed Robert Wone, because the answer MIGHT be “yes”, and the lawyers just don’t know for sure, because they haven’t asked their clients if they’re guilty or not.
I think this judge is going to smack that strategy down pretty hard. I think she’s going to say, “Look, here are the questions. Take a twenty minute recess to ask your clients what the answers are. Then you’ll know whether the answers are incriminatory or not. And if you’re not sure about something, feel free to tell me exactly what the issue is, and I’ll be happy to clarify it for you.”
Bill O, I agree that the 5th will be settled well before the jury is seated. I think there’s very little chance that the judge will let any of them invoke the 5th for things like ‘where do you live?’ and such things. I think there will be a number of battles on the subject but that it will be ironed out (one way or the other) and the jury will see the result of the judge’s advance rulings on the who, when and to what the privilege can be invoked.
Bill O: I think my lawyer is a total moron – at least until the Judge tells him not to invoke the 5th in me.
I think I like this judge. . .
Cat: I replied last night to your post but I don’t see it here this morning. I said (didn’t copy my post but it was something like): Having reviewed the Judge’s papers through my lawyer, I find the Judge is cool, thorough, organized, and totally “no nonsense.” (I add) I did like her since the beginning.
Please excuse my going somewhat off topic but I wanted to say rest in peace, John Lennon and Robert Wone. I couldn’t help but think of both today as both were murdered early in their lives. Both left behind very sad wives and family. Both contributed to a lot of good in this world. Both are missed by many people and many people, who knew neither man, ended up being touched by the lives of both. Thanks. Apologize for going slightly off topic.
I meant to add that the ref. to J. Lennon for those who missed the media tributes is because today’s the 30th anniversary of his murder. Thank Goodness his murderer is behind bars. Let’s hope soon that the murderer/s of Robert Wone is behind bars soon.
Props.
This post refers back to Bea and Bruce’s discussion of double jeopardy above.
Double jeopardy is actually a much harder question than whether or not defendants are charged with a different code provision. If your eyes glazed over during the discussion of the 5th amendment right against incrimination, then you will likely go blind trying to understand the 5th amendment provision against double jeopardy.
The most widely used test to determine whether a charge violates double jeopardy is the Blockburger Test (from the SCOTUS case Blockburger v. US). A very simplistic explanation of the Blockburger test is whether the second offense (here we are talking about access after the fact) requires proof of at least one additional fact. So Jeopardy would apply only if access after the fact requires the prosecution to prove one more/different element than conspiracy,obstruction and tampering.
So here are a couple of examples that may help:
Defendant is charged with and acquitted of murder, using the same facts the prosecutor cannot than accuse him of assault/battery. BUT if the defendant is charged with and acquitted of assault/battery, the prosecution may be able to charge him with murder because murder requires proof of the additional fact that the vic died. (I say ‘may’ in that last sentence because there is a whole idea of collateral estoppel, that may defeat the murder charge, but nobody wants to hear about that I am sure).
Also, the explanation above is based on SCOTUS precedent, so it is the bare minimum test. Many states have much stricter jeopardy rules, such as prohibiting prosecutions using substantially similar evidence.
Without doing research into the DC Double Jeopardy cases and some serious statutory analysis of the different code provisions, I cannot opine as to whether jeopardy would attach in the hypo above.
It was noted repeatedly during the criminal trial that the commission of the murder by one or more of the three defendants was not an essential element of the case. Nor was it essential to prove that any of them knew for sure who did it (as in the much-discredited theory that they might have suspected Michael Price after coming on the murder scene after the fact).
It would seem that accessory charges would indeed depend on proving the additional element that one or more of the three killed Robert and/or that the accused assisted whoever did (as opposed to merely moving things and cleaning up for reasons unknown but to the defendants).
Actually Hoya, I don’t think it is that simple. A conspiracy charge requires two or more people to conspire to commit a criminal offense and that “an overt act is alleged and proved to have been committed by 1 of the conspirators pursuant to the conspiracy and to effect its purpose.” DC Code 1805.
I cannot find the DC Code provision on Accessory after the fact, which I think would be an integral part of this analysis, but the US Code provision states:
“Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
I think your point Hoya is that the requirement of “assists the offender” is an additional element needed for the accessory charge but not for the conspiracy charge, as the principal in the conspiracy charge is not necessarily the offender in the accessory charge. I think that is one valid argument.
But I think there are other arguments as well: I don’t think accessory requires that the defendant “knew for sure” who committed the murder. Under the Model Penal Code, knowledge requires only a high probability of the existence of a fact. Which I think you could argue was the same mens rea (state of mind) needed in the conspiracy charge. Thus whether or not the prosecutor’s needed to argue one of the defendants committed the murder, they did argue that the each of the defendants had enough knowledge that an offense was committed by someone who they chose to protect (thru conspiracy, tampering, obstructing). And the defense lawyer argues that this knowledge is the same knowledge needed to prove the accessory charge. Thereby negating the only additional element in the second charge.
So while, I think your analysis is one possible way to look at the issue, and likely the one the prosecutors would put forth, I do not think a jeopardy determination is that simple. It really requires the analysis of each element of each crime compared to the evidence used by the state to prove that element. When I have made jeopardy arguments to the court I usually attach a chart listing each element in one column, the case law that defines that element in the next, the evidence used to prove that element in the next.
Plus as I said in my last post, if DC has case law that extends jeopardy to substantially similar evidence, the analysis is even more complex.
Just one more quick point on this topic. DC seems to have a unique provision that makes an access before the fact a principal to the action and thus able to be charged with the actual murder:
“In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be.”
Thanks, Kiki, for your always welcome and helpful analysis.
What I take away from your posts is that if and how “double jeapardy” will apply to possible criminal charges that are not the same ones upon which the Swann 3 went to trial in criminal court, is a very complex and difficult analysis.
Essentially, we need to figure out all possible criminal charges against the Swann 3 for which they were NOT tried in criminal court.
The only easy thing is that we can say with certainty now that they cannot be re-tried in criminal court for the exact same charges to which they were deemed not-guilty in the criminal trial!
Well, I guess the other thing we can reasonably conclude right now is that they CAN be criminally charged with murder, because that was not on the list of charges against them in the criminal trial.
Next, we would need to analize whether those additional charges to the ones previously tried could be considered included in the not-guilty charges (such as same quantum of proof), even though not charged in the criminal case, to make sure that they are different enough (like needing just one more element of proof), so that they cannot be considered subsumed or included in the previous charges.
I’m sure the Swann 3’s attorneys have done this analysis, and they and their clients know what additional criminal charges can possibly be brought.
It is certainly too much for us part-time bloggers to do so!
Do any of these possible additional charges — criminal or civil — have an SOL? Murder has no SOL, of course, but do rape, perjury, or conspiracy have one?
KiKi, I too was struck by that DC Code provision that essentially seems to say that one who in other jurisdictions could be charged with ‘accessory before the fact’ to murder could in DC be charged with murder. I wish we had a DC crim lawyer here – if that’s the case, would it not follow that there is no Statute of Limitations for such ‘accessory before the fact’ defendants?
I did find the accessory after the fact statute provision but didn’t save it – sorry.
But back to the idea of BEFORE the fact – what this would seem to me to mean is that if one of these three defendants OR someone else with whom they worked in concert before the murder is charged, others working with that person will be charged with murder as well if they were ‘in on it’ (for example, someone who may have shot RW up with drugs). I’d like to see the case law on this after a DC criminal attorney chimes in – both as to the way it’s practiced and the SOL implications.
Given the possible angle of illegal narcotics, should Uncle Michael be particularly worried?
I suspect Michael is worried (to the extent he worries about anything) and that the three are forever bound together because of this worry.
You know, bea, I have a really hard time putting on a prosecutor hat, but as I was thinking about this provision this weekend, I couldn’t help but think, why not charge them all with murder and acsses after the fact. If the acssess before the fact is murder and killing is murder, and they were all there, doesn’t this seem like the prosecutor’s best hand? I am not saying that a good defense attorney would not have plenty to work with, but it certainly seems as if those charges have a better chance of sticking to at lease one of the three, then the tampering, conspiracy, obstruction trifecta.
I think that’s what’s going to happen down the road, to be honest. The original criminal charges were a fairly obvious ploy to get one of the three to flip. That strategy didn’t work. From a prosecutor’s standpoint, I would imagine that the best move is to see if the civil suit shakes anything loose, then wait to see if the insurance company makes any sort of legal move (I’m guessing they won’t–their best move is to pay out the maximum and walk away.), and then just charge all three with both murder and accessory before and after the fact.
KiKi, I have great empathy for the trouble putting on the prosecutor’s hat – I did public defender work in law school and my one year of doing criminal stuff (with other stuff, being low person on the totem pole in a general purpose firm) was obviously defense work. There are many bastard prosecutors and the cards are stacked in their favor – BUT in this case is going nowhere. I suspect, too, that by the SOL date of accessory after (6 years) we’ll be seeing charges fall in the same manner you’ve suggested. By then, too, all that there is to have will be had (or at least we assume). I do wonder if the cops aren’t counting on Michael Price having a major run-in with the law (or Phelps Collins, for that matter) and telling all. Joe’s ability to keep Michael fat and happy financially has to have taken a hit.
Of course, maybe there was something that happened that night that we’re all simply not privy to – I don’t see it being a stranger/intruder but possibly a scorned lover who found the wrong room, that sort of thing. Still, the three know something (to my thinking) and the civil case and time may yield the critical stuff. Regardless, I do think the prosecutors figure that time is on their side – and the charges will eventually drop.