By Keith L. Alexander
Washington Post Staff Writer
Friday, June 18, 2010; B01
A D.C. Superior Court judge's decision Thursday to allow the Robert Wone conspiracy trial to move forward without any major acquittals sent defense attorneys racing to revise their strategy and coordinate witnesses for the rest of the proceedings.
Judge Lynn Leibovitz ruled that there was enough evidence for the trial to proceed to the defense phase. Leibovitz did acquit two of the defendants, Dylan M. Ward and Victor J. Zaborsky, of tampering with evidence, saying that the government never presented any direct evidence that the two men touched the knife that was found at the scene or Wone's body.
But Ward, Zaborsky and Joseph R. Price are also charged with more serious counts of conspiracy and obstruction of justice. Those charges will stand, as will the tampering charge against Price, Leibovitz ruled.
The judge said the government had presented enough proof at this point in the trial that Price tampered with evidence at the crime scene, including with Wone's body. Price admitted to authorities that when he and Zaborsky walked into Wone's bedroom, he saw the knife on Wone's body and he removed it and placed it on a nightstand. If Leibovitz finds the three men guilty, Ward and Zaborsky could face up to 35 years in prison, while Price could face a maximum of 38 years, according to Superior Court sentencing guidelines.
"I conclude, considering all the evidence, a reasonable juror would, though not be required to, find without a reasonable doubt that the government had proved its theories of conspiracy and obstruction of justice," Leibovitz said. But the judge cautioned that her decision was neither a "verdict" nor a "signal" of what the final outcome of the trial might be.
Bernie Grimm, Price's attorney, called Leibovitz's decision "the correct decision at this point" but added that there's a "higher standard" that applies for the verdict.
Leibovitz, a former prosecutor in the U.S. attorney's office for the District of Columbia, is the sole arbiter because the defense requested that the judge, and not a jury, hear the trial. Prosecutors did not object to the defense's request.
Wone, 32, was stabbed three times in the chest on the evening of Aug. 2, 2006, after he asked to stay at Price's home at 1509 Swann St. NW.
Price, 39, shares the house with Ward, 40, and Zaborsky, 44; the three housemates say they are in a committed romantic relationship. Wone arrived at the house about 10:30 p.m. after working late at his job as general counsel for Radio Free Asia. He wanted to stay there rather than commute to his home in Oakton, where he lived with his wife, Katherine. The Wone family has filed a $20 million wrongful death lawsuit against the housemates.
No one has been charged with killing Wone. Prosecutors said the defendants altered the crime scene because they know who killed Wone and are protecting the killer. The men claim an intruder came through their unlocked back door and stabbed Wone as he slept. The housemates were sleeping in their own bedrooms, they said.
Legal experts in the District say it is rare for judges to issue acquittals after prosecutors complete their case.
Still, after the judge announced her decision, the six defense attorneys asked for an additional day to go over their witness list and prepare their defense. Leibovitz denied their request.
Prosecutors had called about 30 witnesses; the defense plans to call about five or six after determining their availability.
"We're scrambling, your honor," said Thomas G. Connolly, Zaborsky's attorney.
The first defense witness was Nicholas Petraco, a forensic consultant with the New York police crime laboratory. Petraco testified that there was no way to determine whether fibers found on the knife at the scene came from the shirt Wone was wearing or from a bloodied cotton towel that was left next to Wone. Petraco said the fibers found on the knife "could have come from the T-shirt."
Prosecutors had argued that the knife found at the scene was planted by the men and could not be the murder weapon because there were no fibers from Wone's shirt. An expert for the prosecution had testified earlier that the fibers came from the towel and not the shirt, as if someone had wiped the knife in the towel. Petraco later acknowledged that forensic scientists often disagree, and some findings might differ depending on the quality and type of equipment used in testing.
The defense attorneys said they could conclude their case as early as next week.