Leibovitz Said No. Will Rankin Say Yes?
A couple new Plaintiff filings hit the clerk’s office late on Friday afternoon.
Leather Pride Flag, a symbol of the BDSM and fetish subculture
The first one we’ll look at seems straight-forward enough, a Supplement to Rule 16(b)(2) List of fact Witnesses.
Had we tagged out posts better over the past 2+ years, finding information on James Plante would be easier – but we think his name first surfaced back in February 2010 on a Government list of expert witnesses they hoped to call for the conspiracy and obstruction trial.
Plante never made it to the stand, successfully kept away by the efforts of defense co-counsel Bernie Grimm, Thomas Connolly and David Schertler. Judge Leibovitz had a hand in that, too.
Why is James Plante familiar?
Until reading about him in those filings, we had no idea that the DC Metropolitan Police Department had an in-house expert on S&M sexual practices. We weren’t alone in being so naive.
As City Paper’s Rend Smith later noted:
“District cops even had a sex-toy expert on the payroll to help sort it all out for the court. Sgt. James Plante was to testify based on his “more than a decade of experience with gay sado/masochistic practices,” according to court papers.”
Now Plante is back on the list and for the Plaintiffs, hopefully on the stand come this fall.
While we don’t recall Plante’s expert credentials being called into question by the criminal defense armada, we believe his testimony was spiked by Judge Lynn Leibovitz’ aversion to allow any mention of the Swann Street Threesome’s unorthodox sexual histories into evidence. That would unfairly prejudice the defendants, the reasoning and ruling went. Then later, as we all know, the jury went, too.
Now that James Plante is back on a list, a few questions remain:
1. Will Plante even make it to the stand, our can Spagnoletti & Co. reprise their efforts to once again spike him from appearing?
2. If they are unsuccessful and Plante does testify as an expert, how will Covington and Patrick Regan position his credentials and testimony? Are they looking to play the physical restraint card again, even though there could be little physical evidence introduced to support that theory?
3. How may Plante’s testimony mesh with another Plaintiff witness, Jacob Pring, impresario of the CODE parties?
4. Is this an indication that Covington and Regan seriously plan on going balls-to-the-wall (no pun intended) on the defendants’ sexual histories?
That’s a start, but Plante’s name again has to raise another host of questions for how this trial may be conducted in October, and the skirmishes that will certainly precede it.
I’m not a lawyer, but I fail to see how the defendants are going to keep any of this out of the trial. The defense attorneys are advising their clients to take the fifth on anything that relates to what the plaintiffs are calling violent sexual behavior. If you’re arguing that something is potentially incriminatory, then you can’t really argue that it’s also irrelevant.
I just can’t see how the judge is going to let them have it both ways. Especially since the defense has said that the jury shouldn’t be allowed to draw an adverse inference without independent evidence. The plaintiffs can just argue that (a) the defense has already said that they think this is relevant, and (b) the defense has demanded that we present additional evidence to support our case.
In the criminal trial, it seemed like there was a lot of “never minds” being thrown around in view of Judge Leibo’s tough rep. The prosecution didn’t want to wear out their welcome when they had a good sense from her that she wasn’t going to allow much coloring outside the lines – and then the prosecution decided to streamline things to the point that nothing about the needle punctures or sex toy trove or individual practices or the semen in the anus was, for whatever reason, put into evidence.
Here we have a civil trial, which allows more in to start with. And we have Covington, whose likely (hopefully) sharpening its knives for a very long while discussing the best way of getting this stuff “in.” Like Bill O, I think that the defense has to decide how it will be defending this (if at all) including whether they really expect to sit on their “5th” laurels when it’s trial time (sounds fine now, to avoid having to answer much, but when the jurors are in the box, the defendants will only use the 5th in a limited way or pay for it).
Bea,
I’ve wondered if the prosecution’s decision not to present certain evidence had something to do with double jeopardy? In other words, is it possible that if they presented that evidence in that trial, it would preclude them from later bringing charges that would be based on that evidence, such as murder, conspiracy, etc.? I like to think those very smart lawyers had some sort of rationale. . .
I would like to think so too. I believe, though, that they didn’t see that the defense had intended a bench trial from the start and that they spent their days whittling down what Lynn could rule on.
It’s been said before, but just reading that made me realize how wrong Judge Leibowitz was in disallowing information about the “unorthodox” sexual histories of the residents of 1509 Swann. Judge Leibo screwed up in that regard.
Lynn, how could you!
This mentioning of a most unusual official raises so many questions:
Why would the MPD employ an BDSM expert? Is violent and drug crime in the District linked to BDSM practices? Is Mr. Plante a reluctant observer of these sexual subcultures, or is he a willing, hungry “pig” looking for “action?” How often does Mr. Plante testify on the stand, and does he demonstrate these practices on volunteers from the audience?
Lynn may have gagged on the mere whisper of bringing a St. Andrew’s cross to her cramped courtroom, but Michael, being a man and having a larger space, might actually pick up a tip or two. Brooke may have also ruled this crap in, simply because of a better-appointed and more spacious setting in which she sat. Game, set, match to Covington!
“…That would unfairly prejudice the defendants [in the minds of a jury], the reasoning and ruling went. Then later, as we all know, the jury went, too…
To this day I can’t help but wonder just exactly how pissed Judge Leibovitz is about being outfoxed like that.
The relationships of the legal parties in that trial were a bit odd as well, with Judge LL having worked under Schertler and Spag having been with the DC govt, etc.
Clio, such good points re the BDSM specialists. Really, does the person get trained in the field or “trained” in the field and what kind of job applications are there out there for such specialists? Hopefully all that delightful info. will come out sometime during the trial or beforehand. And what if this person is a “slave” of someone in the culture and told to lie to the people he works for. It is really odd.
Susan, I would like to know if James Plante specialized in this “discipline” before or after the Wone murder? Moreover, has he presented or published his research in professional venues? And, why didn’t the comedy team of Norris & Wagner consult him during the Anacostia Dialogues? Plante could have helped them to ask better questions: who doesn’t want to have better material if the cameras are rolling!
I kind of suspect that some undercover or outright investigation might yield a lot of expertise. I don’t think the MPD set out to hire themselves a “made guy.”
That said, it would lend a lot of credibility to his testimony if he was a member of the community, and by community I don’t mean law enforcement or a fine upstanding DC resident. I’d love to hear how they were perceived among the insular family that never really seemed to embrace them. There is almost always a very good reason for that.
I don’t think she was outfoxed at all. I think she was facing a well-financed defense team, she knew that any guilty ruling she made would be appealed, and she folded. I’ve said this before–her written ruling doesn’t make any sense. It’s just a lame attempt to justify her failure to do her job out of fear of being overruled.
The prosecution should have asked Judge L. to revisit the restraints issue once the jury was waived — they did not. As for the broader lifestyle evidence, it made a certain amount of sense to focus on the facts directly related to the cover-up, so I can see why the prosecution didn’t press the issue, but since Joe and Dylan’s proclivities were not public knowledge, keeping those proclivities out of the public eye could have provided part of the motive for the cover-up.
I disagree that the judge folded — there were very specific elements of each charge that the prosecution had to satisfy to get a conviction and in the end they did not establish sufficient facts to do so. It is rare for an appellate court to overrule a judgment on the basis of a judge’s discretionary findings of fact, but the essential elements were so lacking, it probably would have happened here had she found the defendants guilty.
I re-read the opinion periodically and always find it to be logical, except for the section on the tampering charge against Joe — she might have been able to rule differently on that, given her finding that he moved the knife, but she ended up finding that his motive was not established. The prosecution’s theory that Joe was covering up to protect a member of the Swann Street “family” could have sufficed but for whatever reason, she found the motive lacking.
Agree Hoya – she gave a pass to Joe for some unfathomable reason when she had him well within the lines of “guilty.”
I would have been pissed to have gone through all the jury prep and then get the bench request (which, by the way, was likely intended from Day 1). I wish the prosecution hadn’t caved on many of the important so-called tangential matters, most of which didn’t even have to be ruled on.
the Judge’s ruling IMHO-definitely gave a pass/folded to the defense and she literally drove a sword thru Robert’s wife heart by then saying but I think they may be. You can’t have it both ways and hopefully the outcome haunts her every day but maybe she really just wasn’t knowledgeable of a potential Canadian Ken and Barbie situation where Karla pledge to be the ultimate enabler to her blond knight and drugged her own sister who accidently died because Paul wanted it.
Maybe the judge just wasn’t hip enough to see IMHO that personality disorders occur in all(heter/homo/bisexual ). Bondage and Slavery experts need to be heard at that trial so if the prosecutors feared a double j entity then let it come out in the civil trial where St. Andrew crosses/celtic crosses/ russian crosses can all be present. I don’t know how Robert’s wife holds up because Lady Justice is moving at a glacial pace here. How do sex therapist get their credentials?? who knows
Hoya, I just don’t agree with you here. The judge basically said that at least one of them was guilty (i.e., it wasn’t an unknown intruder), but she couldn’t be sure that any one of them wasn’t the odd man out, so she found reasonable doubt for all three. In theory, I’m fine with that argument, but if you’re going to make it, you should be able to imagine some sort of scenario for each defendant in which they really could have been the odd man out. And with respect to Joe Price, I just can’t imagine one. He says that he was awoken by the door chime–he was absolutely certain about this–and then he and Victor went to the doorway, heard three grunts, and ran downstairs to find Robert with three stab wounds. If you’ve ruled out a ninja assassin, how can Joe possibly be telling the truth here? Victor couldn’t have been involved, because he was next to Joe the whole time. So you’re left with two possibilities:
1) Dylan acted alone, in which case he went downstairs and tripped the door alarm for no good reason, then silently went back up the creaky stairs, opened Robert’s door, stabbed Robert to death with no signs of a struggle, and then fled to his room while Joe and Victor were coming down the stairs directly toward him, all without getting a single drop of blood on himself or the floor.
2) Dylan acted in concert with someone else, in which case either he or someone else tripped the door alarm, and then two people walked around the house without making any noise, committed a stabbing with no struggle and no blood trail, and then noiselessly fled the scene in two different directions with two people barreling down the stairs at them.
In my opinion, neither of these scenarios makes any logical sense, and thus, her argument fails. If she didn’t think the ninja assassin theory constituted reasonable doubt, then the only logical conclusion I can see is that Joe was guilty of obstruction.
Reading your post made me think that J. Price has acknowledged or is placed in the lead of most of the known activities of that night.
JP’s friend, R. Wone, comes to spend the night.
JP allegedly sees a spider and leaves the door open/unlocked
JP allegedly heard R. Wone scream and the story begins there with him.
JP takes the lead, sits with RW and sends VZ off
JP moves the knife
JP holds the towel to RW, at least he says he does, but he’s not viewed doing so.
JP seems to give instructions to VZ re the 911 call
JP is the one with RW when the police arrive.
JP apparently is giving some stink eye to his partners when it looks like they will speak while police are there
JP has the phone
JP calls SH to pick them up
Etc. etc. He seems to be at the forefront of each scenario that evening.
Given the centrality of the character of Culuket, Shakespeare again needs to be consulted; Dyl, get your highlighted textbooks out again.
Yes, so, in one draft of a possible reinterpretation of an old classic, Joe was/is a fourth-rate and lavender MacBeth, and Robert was/is definitely Duncan: that leaves Vic and Dyl as the Lady MacBeths. Who will star as the witches?
Bill O:
You make a logical argument.
Unfortunately, the burden of proof to prove that at least one of the three obstructed justice and tampered with evidence was on the prosecution. The prosecution had to prove specific acts by each defendant, as specified in the D.C. Code (the provisions relevant to each charge are on the site somewhere) in order to meet that burden. Because they did not do so, there was no obligation on any of the three defendants to affirmatively demonstrate that they were the odd man out, nor would it have proper for the judge to pursue the line of thinking you suggest.
Connolly did, however, come close to making that argument for Victor and I suspect his closing had a big impact on the judge’s final decision by forcing her to closely examine the facts against his client and then, in turn, the other two and ultimately finding all of it insufficient. The circumstantial case was strongest when the facts against all three were viewed collectively, but she needed to render judgment on each as an individual and there wasn’t quite enough on any one of them, except as I noted above with regard to Joe and tampering.
I understand what you’re saying here, but I still think the logic of the judge’s written ruling fails. As you say, the judge had to render judgement on each defendant as an individual. Had she written, “The possibility of an unknown intruder, while extremely unlikely, still rises to the bar of ‘a reasonable doubt’,” then I would agree that her argument makes logical sense.
But that’s not what she did. She concluded that at least one of them was guilty, but she couldn’t be sure that all of them were, and so she found all of them not guilty. In effect, she did NOT render a judgement on each defendant as an individual. If she had, she would have said that she found no reasonable doubt that at least one of the defendants was guilty, and given that finding, there was simply no reasonable doubt that Joe Price himself was not guilty.
and the strapped down blond guy in the chair–I wonder if he knew he would be infamous on the internet when he agreed to be facemasked and bound at that little event he was at
I doubt he minds. If I had that body, you’d pretty much have to pay me to put a shirt on in the morning.
Looking forward to the pending civil trial – in total contradiction to the hand-wringing expressed above concerning the dreadful experience that was the criminal trial last Summer – the plaintiff’s amendment of the witness list to include Sgt. James Plante, described as a “sex-toy expert [who has] more than a decade of experience with gay dado-masochistic practices” is the most hopeful development we’ve seen since this heartbreaking saga began.
It evinces the obvious fact that plaintiff’s counsel now know how the murder occurred and are positioning to prove it – not beyond a reasonable doubt, that will come later (I promise) but – easily by the standard of evidence necessary in a civil trial.
I predict that evidence to be aduuced by Plante will be admitted and will be damning.
Thereafter, in a subsequent trial the government will need only prove who owned the sado-masochistic materials, who owned the knife, who was expert in the use of a butcher knife, and it’s then ………………..conviction time.
Nice post boofoc. Hope you are right.
Without the S&M evidence, the case is about four guys in a house and an unlocked door. With the S&M evidence, it’s a whole new ball game. That’s why Spag will fight like hell (again) to keep it out, but I think, for the reasons cited throughout this thread, this time he loses.
Question for the smart guys & gals (and attorneys): How does the defense keep out evidence and testimony like Plante? Is it motions in limine like in criminal trials?
Yes, Motions in Limine are filed in civil cases just as they are in criminal cases. Usually, they are files just before trial.
That is to say: adduced by Plante.
I can’t wait for this NSFW photo to go away. When’s the next post guys? LOL
Nice flag, eds. Looked it up on Google. Some might miss the old pic but this one has some heart.
I am surprised/amazed and delighted to learn that the DC MPD has a “sex-toy expert [who has] more than a decade of experience with gay sadomasochistic practices.” Has no one among us encountered this man before; can’t understand why there have been no comments concerning this seemingly anomalous fact. I mean, how does one become proficient enough in sadomasochistic practices to claim expertize? Not that I really want to pursue that endeavor, but… Anyone interesting in discussing this? I’ll be interested in in Sgt. Plante’s curriculum vitae.
I wouldn’t be surprised if there are many more inadvertent deaths due to BDSM than the public realise that are, like suicides, not fully reported in the media due to: 1. sensitivity to relatives 2. the fact that no charges are ultimately laid and 3. not wishing to encourage copycats. There may well have been some police officer quietly working on this sort of death who has researched BDSM practices in order to understand how someone came to die and whether laying charges was justified.
A lot of people die from autoasphyxiation and their deaths are deemed suicides.
Jim Plante is not employed by the police specifically as a BDSM expert. He is a police employee who happens to also be a BDSM expert.
He’s pretty well known within the gay and straight BDSM community and has a good reputation. When I heard his name attached to this I thought it was a good choice as he is knowledgeable, well respected, and could be counted on to keep confidential details confidential. I’d love to take to him about the case but haven’t as I already know he wouldn’t.
twb6yz,
Thanks for dropping us a note about Jim Plante. A question for you — is Plante a BDSM practitioner which makes him an expert or is he have an academic creditial that makes him a BDSM expert or both?
David, co-ed.
Very interesting that Jim Plante is a police employee, a BDSM expert and will be plaintiff’s witness. Wait till the trial when we hear his testimony and that of the guy from Texas, etc., etc. all together. Might not need much testimony from the defendants, except 5th-amendment refusals to testiy from which the jury may infer…answers to interesting questions. Those damnable inferences!
David,
I think it’s safe to assume that he has workin knowlede of “special interests.” He was the President of SigMa in 2004. (Special Interest Group Men’s Association)
http://www.sigmadc.org/home.html
NSFW, folks.
Hmm…wonder if Joe and Dylan were members.
Great question, cd; if JP & DW were/are members of SigMa, it might be a conflict for the organization’s past-president to testify against them (depending on the “membership agreement”). Very interesting developments. Thanks for the research.
boofoc, here’s the membership appliction. doesn’t look like there is anything on this application that would prohibit someone from testifying against them.
http://www.sigmadc.org/Library/MemberApp.pdf
so, in light of the sigma angle, perhaps Plante’s testimony is not general S&M info, but specific info regarding the behavior of JP & DW.
Could the Editors send a representative to the Sigma-sponsored Electric Play Seminar at the Eagle’s Third Floor on May 9? One might glean some insights from such a class.
BTW, ladies, guess who is the new Rector of William and Mary’s Board of Trustees? Could it be someone who actually defended Mr. Price in August of 2006? Who knew!!
oh, the webs…
Thanks, cd, for the additional link. I agree it’s just the usual “hold harmless” agreement by members. And there’s nothing to inhibit one member (or an officer) from identifying another “card-carrying” member or from tattling about what he sees (fill in the blank for other senses) another member doing. Perhaps Plante’s testimony will not be so abstract as expert testimony usually is.
Yet, boo, one might hope that Michael R. at least will be spared a live demonstration of the Joyrider rimseat.
“Your honor, I introduce Exhibit A..”
Hope Judge R has the presence of mind to act as if he doesn’t recognize it!
SigMa’s upcoming picnic in Berkeley Springs, West Virginia promises to be quite illuminating: I wonder if Mr. Plante will be there to conduct some research. Their rules do seem to be very firm on having no drugs (even hard liquor is banned!) and pursuing consensual activities only: given albeit limited clues, that may not have sat well with Culuket and/or Sparkly Cat circa 2006.
I do wonder what Mr. Plante and fellow Sigmas think of this sordid case, and one might venture to ask if any of them knows Mr. Pring and/or our Texan in the Biblical sense. Ride ’em, cowboys?
Apparently defendants have no expert witness to counter Plante’s testimony. They plan to argue that the S&M details of the murder are irrelevant. Yea, right.
The defense could bring the author of Dyl’s highlighted manual to the stand, arguing that anyone trying out sexual techniques copied from a textbook must not have been very adept. The awkwardness of the trouple’s “game” may unfortunately be played in their favor. The urbane Spag must find them all so tiresome, nonetheless!
How can the be? BDSM is the very reason he is dead.
No, it was not “the very reason” he was dead. The vast majority of BDSM practicioners are not rapists, any more than, say, the vast majority of hunters are apt to shoot their friends (a certain vice-president excepted). A much more salient reason is that Joe was apparently willing to rape his friend. Joe’s willingness probably arose out of a desire to salvage a relationship with Dylan that he felt was slipping away, and his drug use also was a likely contributing factor. But the failed ethics of the people involved that allowed them to perpetrate rape and murder provide the essential reason for Robert’s death.
Well said, DonnaH.