Cold Comfort

Plaintiffs Win the Day at Status Hearing

Frigid weather and long, long lines greeted the Court Set at Moultrie on Wednesday morning.  Jurors, attorneys, defendants, media and even judges braved the cold and stood in lines that snaked around the building, some waiting nearly an hour just to make it to security and the mags.

The long lines are due in part to enhanced courthouse security efforts that were first reported during last month’s Levy trial and according to one AUSA, all the judges inside are aware and their schedules are adjusted accordingly to accommodate.

The delays also impacted Judge Brook Hedge’s schedule.  Waylaid attorneys slowly filtered into her courtroom and the hearing, set for 10am, began about a half hour late. 

But Hedge plowed through the packed agenda and just over an hour later, the retiring judge left a lasting impact on the Wone case and 2011 trial.

Wone attorney Patrick Regan and the Oregon based Ward counsel Ralph Spooner were the stragglers yesterday morning, standing on line and updating their colleagues who were already inside the warm confines of courtroom 517, by BlackBerry.

Plaintiff attorney Ben Razi and Ward co-counsel and familiar face Robert Spagnoletti, kicked off the action with oral arguments on the 5th Amendment issue.  Razi conceded a key point to the defense regarding DC Civil Rule 30(d),that allows counsel to speak on behalf of their clients, but only up to a point.  “If they want to invoke, that’s their prerogative,” Razi said, adding that there was still a need to get “proper 5th Amendment invocations.”

Hedge, signaling that her mind was probably made up on this issue interjected quickly and said she’s read all the documents submitted by counsel from both teams.   Noting the different “textures” of the deposition questions – how long did you know Robert, ownership of the cutlery set, and knowledge of the 1509 Swann alarm system, “…raise interesting 5th Amendment issues to be resolved.”

Spagnoletti, while never once revealing the underlying strategy to his 5th play, admitted his statements in the November 10 Ward depo were “carefully phrased.”  Hedge drilled down in particular onto page 15 of that transcript and remarked that, “…nothing is in the record of the witness invoking… counsel prevented him from answering.”  Spagnoletti maintained that DC civil rules allow for how he and Ward handled the depo but Hedge cut him off saying, “I don’t agree.”

Hedge then led a refresher course in criminal v. civil and the 5th and noted that adverse inferences can’t be drawn by a jury in the former but can in the latter.  Adding that in a civil, unlike a criminal case where a witness can decline to testify, “Plaintiffs are only left with the deposition and the jury is left with that record and that opportunity to see and view him… When only an attorney and not the witness make the claim, it makes for a very different proceeding.”

While Hedge was OK with attorneys making a claim of privilege, she insisted that must be followed by actual acceptance by the deponent of counsel instructions/advice, “…he has to answer personally on a question by question basis.”  She went on to say that case law regarding this issue is “not on point… the concept running through this is that the witness has a right to change his mind and must take the affirmative step.”

And showing concern for the Brave New Media World, Hedge warned counsel not to share anything until the issue is made public and brought before the Court. “I don’t want to see anything…on youtube… Discovery is not a public record and shouldn’t be leaked or divulged.”

Hedge admitted potential prejudicial blowback from the jury seeing tapes of a witness taking the 5th on over 400 questions posed and suggested maybe five get played to the jury and stipulations cover the remainder.  “Massive deletions,” she assumed, may be in order.  The simple upshot from this is that in the coming depos, the defendants will have to personally state that they are declining to answer the questions thrown at them.

At 10:45am, Regan finally arrived and apologized for his tardiness.  He was stuck in line for 50 minutes behind Judge Wright, Superior Court’s Acting Chief Judge.  Hedge said the long lines have gotten better lately, now averaging around fifteen minutes and compounding that was a recent power outage that struck the courthouse.

 She said that the Court wanted to erect plaza entrance overhangs to protect visitors and staff from the elements, “But the Architecture Review Board said no.” DC Superior Court was overruled.  Good luck visitors, with the forecasted cold rain and snow.

Zaborsky counsel Sean Edwards spoke first on the motion to restrain counsel from speaking to the media. Although officially referred to as a motion to enjoin, the shorthand term used here, gag order, was adopted today for the purposes of arguments.  “This is where the 6th Amendment collides with the 1st Amendment,” he said.  Hedge cut him short and asked if the criminal case defense counsel had made comments about the pending civil.  She knew the answer was yes, but Edwards said he was not aware of the “panoply of statements made.”

Edwards mentioned that Civil Rule 203 and DC Bar 3.6 were not sufficiently muscular and that the proposed gag pertained to the defense as well. “3.6 doesn’t remedy if inflammatory or prejudicial statements reach the jury pool… You can’t unring the bell and disciplining an attorney (after the fact) doesn’t help.”

Regan, the one who set off this skirmish was next to speak. “My comments teed up this issue and I never intended to taint the jury pool.  In my mind, my comments were less prejudicial than Judge Leibovitz’ decision; not nearly as prejudicial as her 55 pages regarding the culpability of the defendants.”  He tempered that continued stridency with a few words of contrition,” I apologize if I offended the Court… but the gag order is unnecessary.”

Zaborsky co-counsel Frank Daly argued next and wanted to hit the reset button.  “This trial is a fresh start.  What came before shouldn’t set the precedent for these proceedings… These comments help no one… What happened before doesn’t matter… Keep this neutral, keep this insular.”

Next, on behalf of the media intervenors, Ober Kaler’s Chip English, argued that 203 and 3.6 more than suffice, that the defense’s 6th claims don’t apply and there was no right, and that he’d be “shocked” if any depo material was leaked.  English said that 203 can’t “overcome the 1st amendment right,” and that the defense was overreaching with the gag order. “They’re going to the end of the line on just one comment.” 

Hedge reminded them of 203: Don’t speak to credibility of witnesses, motives of parties or characterization of testimony, though she admitted, “Easier said than done.”  She said Regan’s tough talk was “not needed,” and that this case was preceded by an “extensive history” of coverage.  She noted Keith Alexander’s WaPo piece on the September 16 status and the comments it generated (attached as an exhibit by the defense). “This is a different age in which we’re litigating.”

By denying the gag order, Hedge mooted the motion to intervene.  She “expects strict compliance and adherence (to the rules)… I don’t want the case tried in the press.  It’s fair to provide the media filings and explain in neutral terms, not sound bytes, with substance, not characterizations.  Keep it neutral.  You are not advocates for the press.  Bite your tongues.  In that regard you serve as officers of the Court.  Resist temptation to go beyond the facts.”  She even quoted Dragnet’s Jack Webb, “Just the facts ma’am.”  All counsel agreed.

Al 11am the motion to dismiss came up and Brett Buckwalter, on behalf of defendant Joe Price, argued that Holmes and Chappelle were on their side and the one year cause of action trigger for SOL was appropriate. 

Hedge wasn’t buying it and asked him what did Mrs. Wone know in August of 2007 that she didn’t know in August 2006?  In other words, what did she know and when did she know it?  Buckwalter said that reports of the alleged criminal activities were in the press.  “Do you believe everything you read in the press?” she asked.  She then wanted to know where was the unfairness to the defendants.  “Their lives were put on hold,” said counsel.  Hedge’s follow up was blunt. “You were the ones that asked for the (February 2009) stay.  “You’re the one who asked to put their lives on hold.” 

Covington’s Ben Razi was next up and he characterized the defense motion as “…an aggressive attempt to reshape DC SOL law to never apply tolling to unsolved murder cases.”  Fraudulent concealment was the real issue and that the defendants actions were “extensive, textured, rich oral statements… of hiding evidence, staging the crime scene and an elaborate effort to conceal.”  He added that SOL tolling for that is “routinely accepted.”

Razi then rattled off a tick list of the major factual disputes and why dismissal or summary judgment is not warranted.  “Defendants lied to Kathy Wone’s face…point blank.”  The MPD transcript from the night of the murder, attached to the defense exhibit, didn’t surface until the criminal trial.  He said plaintiffs did not have access to confidential grand jury investigations.  “The transcript has no bearing.”

Razi said that the August 2007, one year anniversary press conference that featured Mrs. Wone, Eric Holder and other supporters, was not relevant and at that point they still knew very little and that nothing was really known until late October 2008 when the Ward affidavit hit. “You forgot what a bombshell this affidavit was,” he said and that according to Rule 11, a good faith basis was needed to file a complaint.

No blood on the towel?  Razi said that was “a specific lie the plaintiffs became aware of,” and that allegation that Robert was showered, redressed and placed back into bed, “…was inconsistent with the intruder theory they told Mrs. Wone and that they (the defendants) spread across the city.” 

Not until late 2008 did plaintiffs have reason to disbelieve the housemates and subsequently they filed Razi said..

Razi mentioned that the needle puncture wounds found on Robert were initially thought to have been the result of medical intervention, and that only later did they learn of a possible injections.  It was “wild to suggest” that Mrs. Wone knew more ahead of the affidavit’s filing. “We allege these guys destroyed evidence… and had Robert survived he would’ve had claims.”

In from Salem, Oregon, for his debut in this case, Ward co-counsel Ralph Spooner warned Hedge not to be too quick to dismiss Chappelle, that it’s the law in DC.  “The existence of a cause of action was known… the stabbing gave rise to it… The fact that identities are not known doesn’t toll SOL.”  Hedge asked how the plaintiffs could’ve filed any earlier.  Spooner replied that it was possible – the defendants were the only ones in the house or they could’ve done a John Doe. “The plaintiffs did neither,” he said. 

Razi reminded Hedge that Chappelle was from 1982 and was superseded by Diamond.  What was at stake was not concealment of identification but one of wrong doing.  Buckwalter disagreed on Diamond and Hedge shot back, “Since when do we file claims based on something reported in the press?”  The Levy trial shows problems with a rush to judgment and filing suits.  The facts disputed are material issues… You can’t file suits in vapor.”  Hedge said “the plaintiffs accurately and satisfactorily pled” and the motion was denied.  And by 1145am it was over.

Media attending yesterday’s hearing included the Post’s Keith Alexander, Legal Times’ Mike Scarcella and the Examiner’s Emily Babay. Alexander has this on the pending judge calendar swap.  Is this the end of Hedge?  More on this development in the coming days.

“Wednesday’s proceedings in the Wone case will probably be the last for Hedge, who is retiring at the end of the year. Judge Michael L. Rankin, who currently oversees felony trials, will assume Hedge’s 2011 cases.”

Not So Soto Voce

During the summer criminal trial in Leibovitz’ jammed courtroom, there was always a protective screen of 50 other people that allowed for the most discrete whispering in the gallery during the proceedings.  Not so in a near-empty courtroom for a status hearing.

Your intrepid reporter’s barely audible, close order whispers with a colleague were notice by Judge Hedge yesterday morning during the SOL arguments.  She politely said, “No talking in the courtroom.”  Or so I was later told.  Your Chatty-Cathy reporter, still too busy whispering, didn’t hear that first warning which led Hedge to repeat the admonishment.

Apologies to the Court, Your Honor.