Someone’s Clearly Not On The Same Page
Whatever else can be said, this week’s motions have clarified one question…and raised multiple new ones.
First, the question answered: how would the defense counter the prosecution’s filing of “Uncharged Conduct 1″?
The government’s blueprint was assertive and the case brought by AUSA Glenn Kirschner and his deputy Patrick Martin was broad and bold. The defense’s response?
Tepid. Where-ever one may come down in this case, it seems apparent the prosecution is, for the moment, on the move… painting its theory in crimson brush strokes. In contrast, their opponents at present appear in a crouched position, simultaneously defensive but also intent on setting several small legal brush fires.
Whether substantive or merely distracting, it’s hard to know what secrets lie behind these motions. And brush fires can die out or ignite a conflagration, depending on conditions.
But we have new questions, and possibly new fuel to be added to the fire.
Of the three Motions for Severance, two are remarkably similar. Only if by similar you mean nearly identical – they being the motions for Joseph Price and Dylan Ward. How similar is similar? How about word for word?
To be fair there are a few differences. For example, paragraph #4 of the Ward motion adds the end sentence:
“Certain portions of each defendant’s statement are videotaped.”
A helpful, if grammatically challenged, reminder that certain portions of Ward’s interrogation were not taped. Again, nice work MPD A/V Club.
But similarities – down to duplicated paragraph after paragraph – are the rule here. So much so that Section A is listed as “Introduction of His Co-Defendants’ Statements violates Mr. Price’s Sixth Amendment Confrontation Clause Rights” – in both motions. Whoops.
Unsurprisingly, the arguments for severance are the same and go something like this. The Sixth Amendment grants the accused, among other things, the right to confront and cross-examine testimonial evidence brought against them. Prosecutors can’t just bring hearsay and leave it at that.
But because part of the government’s case involves statements made by the three that – the government says – demonstrate intent to mislead and confuse, and thus demonstrate guilt of the charges brought, no one of the three will be able to contest statements made by the other two. Hence, a violation of each of their Sixth Amendment rights under the confrontation clause and then need to Sever. Or something.
(Granted, legal eagles will find much more meat, and will likely point out the many errors and oversights in reasoning here. Do be kind.)
All three defendants made much of not being mirandized. But only in Zaborsky’s motion does this appear – twice:
“The MPD also subjected Zaborsky himself to interrogation the night of Wone’s death without advising him of his Miranda rights and in defiance of his request for counsel.” (emphasis ours)
Defiance? Not the good cop/bad cop head games we saw played with Ward, but outright refusal to provide counsel on request? Shocking if true…we would have hoped even the MPD would know enough to put down the rubber hose at this point.
If severance were granted, a new issue pops up – would the separate defendants be able to call each other to the stand? Perhaps, but this seems complicated by Victor and Joe’s domestic partnership. It’s our understanding that a spouse cannot be compelled to testify against their partner. As for Dylan…but this is all speculation.
What’s not speculative is the vastly different filing brought by Victor. The break with the other two begins at paragraph #5:
“The government seized a variety of items from the Swann Street residence, including, inter alia, a variety of items used by individuals engaged in bondage and domination (“B&D”) practices.”
B&D? Is that supposed to sound better than S&M? Continuing…
“The government has indicated its intent to introduce and rely upon the B&D evidence. Neither the government nor any of the Defendants has asserted that Zaborsky engaged in B&D practices or had any connection to the B&D evidence recovered in the case.”
The motion employs some similar arguments and case law, but is clearly a different construction, based as much around the right to confront as it is the importance to Victor of not being linked the wealth of evidence of Joe and Dylan’s sexual activities on Swann. Reading all three motions, it’s possible to question if Victor’s motion came first…and Joe and Dylan’s motions were the rapid response.
And one begins to wonder if something deeper than just different legal arguments is stirring here. Consider: all three moving to be tried separately. Increasing attention to Michael’s activities the night of the murder. More space emerging between Victor and Joe’s legal strategies. Victor and Joe arriving at the courthouse at different times,with Joe departing in one direction and Victor and Dylan in another.
And just where was Aunt Marcia at January’s status hearing?
On Monday, something we’ve been working on for a while. An update on the Trouple.
-posted by Doug
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