May 12, 2010 | by Lou Chibbaro Jr.
Trial begins in Wone murder case

A long-awaited trial opened this week for three gay men implicated in the murder of attorney Robert Wone, who was found stabbed to death inside the men’s Dupont Circle area townhouse in August 2006.

Joseph Price, 39, his domestic partner, Victor Zaborsky, 44, and the couple’s roommate, Dylan Ward, 39, have been charged with obstruction of justice, conspiracy and evidence tampering in connection with Wone’s murder. If convicted on all three charges, the men face a possible maximum sentence of 38 years in prison.

Authorities have yet to charge anyone with the murder itself, a development that has created an air of mystery and intrigue and has captured the interest of the gay community as well as local and national media.

Prosecutors and defense attorneys said they could present 80 or more witnesses and expect the trial to last as long as 10 weeks. Jury selection was scheduled to begin Wednesday at D.C. Superior Court, with opening arguments set for Monday.

Judge Lynn Leibovitz ruled Tuesday against the defense team’s attempt to separate the joint case so that each defendant could be tried individually rather than together in a shared trial.

The defense argued that the men should be tried separately because it would be impossible for prosecutors to avoid violating constitutionally mandated rules of evidence that statements made by one defendant can’t be used against another defendant in a joint trial. But Leibovitz said the defendants’ rights would be protected by strict limits she imposed on the prosecution concerning the introduction of the defendants’ statements about each other.

Defense attorneys were especially concerned about prosecutors’ plans to show jurors videotaped interviews of each of the defendants by homicide detectives conducted shortly after the murder. At Leibovitz’s instruction, prosecutors said they would edit the videos to remove any statements by the defendants that would incriminate a co-defendant.

After months of pre-trial wrangling over the admissibility of evidence, Leibovitz forced prosecutors in the days before the trial began to withdraw several key elements in their case, including allegations that the crime scene was cleaned of blood.

Under pressure that Leibovitz would rule against them and claims by the defense that the government lacked sufficient evidence, prosecutors also agreed not to introduce testimony that Wone may have been immobilized with a paralytic drug or restrained by S&M devices found in the men’s house before being stabbed three times in the chest.

Also excluded was any testimony by police regarding the collection of S&M devices they found in the house, including restraining harnesses, face masks, books about sadomasochism, and a device used to administer an electric shock to a person during sexual activity.

Assistant U.S. Attorney Glenn Kirschner, the lead prosecutor in the case, has said introduction of the S&M devices as evidence was intended to show that Wone might have been restrained at the time he was stabbed.

Kirschner has said the government nonetheless remains confident it has sufficient evidence to prove that the killer “is someone known to the defendants” and that the three men conspired to obstruct the police investigation into the crime.

Kirschner has said he also remains optimistic that the government will demonstrate to the jury that Wone was not murdered by some “unknown, unseen, phantom intruder,” as the defense has alleged.

In pleading not guilty to the charges, the three gay men have said through their attorneys that an intruder entered their house through a rear door while they were asleep and killed Wone.

Wone, a friend of Price since the two attended Virginia’s College of William & Mary, spent the night at the men’s house on Swann Street, N.W., after working late at his nearby office. Wone’s wife, Kathy Wone, and family members have said Wone was straight.

The defendants have retained an experienced and highly regarded team of nearly one dozen defense attorneys, including former prosecutors such as the openly gay former D.C. Attorney General Robert Spagnoletti.

Since Price, Zaborsky and Ward were indicted in the case in 2008, the attorneys have methodically challenged nearly every piece of evidence and legal theory advanced by the government, accusing prosecutors of “manufacturing” a sensational case that isn’t supported by the facts.

In a final series of pre-trial hearings over the past month, Kirschner, chief of the homicide division at the U.S. Attorney’s office, and his smaller team of prosecutors, have sought to defend a case built largely around the aspects of a stabbing death reportedly committed by an outside intruder that were conspicuously missing in the Wone murder.

Citing the autopsy and crime scene findings, prosecutors note that although Wone was stabbed three times in the chest area, including once in the heart, there was hardly any blood on the guest room bed where he was found or on the floor or walls. This prompted prosecutors to conclude in a lengthy arrest affidavit released in October 2008 that someone in the house had “cleaned” the crime scene.

The affidavit points to an autopsy finding that the three stab wounds on Wone’s chest area were surgical-like and undistorted rather than the jagged cuts usually found on a stabbing victim, who would be expected to recoil in pain and move around in an effort to defend himself — even if he were sleeping in a bed, as the defendants say was the case with Wone.

Additionally, there were no defensive wounds on Wone’s hands or arms that are normally found on victims stabbed more than once, who traditionally position their arms to deflect the path of a knife-wielding attacker, prosecutors have said.

The arrest affidavit citing these findings pointed to a theory by the medical examiner that Wone appeared to have been immobilized by a paralytic drug, which likely prevented him from moving during a violent stabbing attack. The autopsy also found several needle marks on Wone’s body that were inflicted before he died, further pointing to the possible injection of a powerful drug before the stabbing.

Yet another autopsy finding of semen in and around Wone’s genital area and rectum prompted prosecutors to initially assert that Wone had been sexually assaulted at the time of the murder.

All of this, prosecutors said, made it clear that Wone could not have been murdered by a burglar or home intruder who entered the house, stabbed Wone and quickly fled.

The defense, however, has argued in pre-trial hearings that the paralytic drug theory should not be introduced as evidence because no such drug could be detected in Wone’s body from chemical tests. The defense also argued that semen is normally found to be secreted when men die and that the government failed to present any evidence that Wone had been sexually assaulted or restrained at the time of the murder.

Instead, defense attorneys announced they plan to call a controversial cardiologist as a witness who will testify that a stab wound to the heart can instantly stop the heart and immobilize the person stabbed. This development, defense attorneys have said, would explain why Wone didn’t move or recoil when stabbed two more times.

The defense said it would also present expert witnesses who will claim the bleeding in Wone’s case was mostly internal, explaining why the crime scene lacked large quantities of blood.

Agreeing with the defense that the government failed to produce sufficient evidence that a paralytic drug was administered, and that Wone was sexually assaulted or restrained by S&M sex devices, Leibovitz either ruled against admission of these theories or persuaded prosecutors not to bring them up at trial.

Kirschner has said the government’s case nevertheless remains strong.

With no evidence of a forced entry, no evidence that anything was taken from the house and no signs that anything was disturbed or disrupted, he has said prosecutors will call on the jury to conclude that an intruder or burglar could not have killed Wone and that the defendants had to know who was responsible for the murder — even if the government doesn’t have sufficient evidence to charge anyone with Wone’s death.

But in a comment at one of the recent pre-trial hearings, lead defense attorney David Schertler called the reasoning “ridiculous,” saying people are killed in the city “all the time” by home invaders and during botched burglaries.

“All you have to do is read the newspapers,” he said.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

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