Wone case defense has setback, as judge refuses to hear opinion on time of death

By Keith L. Alexander
Washington Post Staff Writer
Saturday, June 19, 2010; B01

The defense team in the Robert Wone conspiracy trial suffered a minor setback Friday as the D.C. Superior Court judge hearing the case refused to allow an emergency room physician to give his opinion about what time Wone was killed.

The issue of how long Wone remained alive after being stabbed three times in the chest while staying at his friends' home near Dupont Circle is critical to the prosecution's case.

Prosecutors say Wone, 32, was killed Aug. 2, 2006, sometime between 11 and 11:49 p.m., when one of the residents called 911. Attorneys for the defendants say their clients called 911 within a minute of discovering Wone's body -- and did not have enough time to clean up the crime scene.

Wone's friend, Joseph R. Price, 39, the owner of the million-dollar townhouse, and housemates Victor J. Zaborsky, 44, and Dylan M. Ward, 40, are charged with conspiring to mislead authorities and covering up for Wone's killer. The men, who are in a three-way romantic relationship, said an unknown intruder came through the back door after Price inadvertently left it unlocked earlier in the evening.

An attorney for Zaborsky called Jeffrey P. Smith, an associate director of trauma at George Washington University Hospital. Smith, who never treated Wone, based his testimony primarily on medical reports from his colleagues and court transcripts of testimony from paramedics and hospital staff members who worked on Wone.

Under questioning from attorney Amy Richardson, Smith testified that when paramedics removed Wone from the house at 11:59, Wone was in a state of so-called pulseless electrical activity. His heart was no longer beating, but some heart activity could be detected on a monitor that paramedics had hooked him up to.

Smith testified that untreated, the electrical heart activity could last as long as 12 minutes and that Wone's heart would have entered that state about a minute after falling unconscious after being stabbed.

Richardson then tried to ask Smith to give his opinion on what time Wone had to have been stabbed.

Judge Lynn Leibovitz quickly stopped Richardson from asking the question. Based on Smith's experience, the judge said, Smith was unqualified to offer such an opinion.

"He's not a forensic pathologist. He's a medical doctor. Only a forensic pathologist can give that opinion. It's outside his scope," Leibovitz said.

David Schertler, Ward's attorney, rose to argue that Smith should be allowed to testify. Leibovitz briefly excused Smith as she, the attorneys and the prosecutors discussed Smith's potential testimony.

Prosecutor T. Patrick Martin argued that Smith should not be allowed to give an opinion on the time of the attack, primarily because he never treated Wone and was relying on the notes of the attending emergency room staff and paramedics. "There's too much he doesn't know," Martin argued.

Leibovitz agreed.

Schertler then asked for a recess so defense attorneys could regroup.

After the break, Richardson asked how quickly an average human heart would lapse into pulseless electrical activity once a stabbing victim loses consciousness. "Very quickly," Smith responded.

On Thursday, Leibovitz refused to dismiss the charges, a day after the prosecution closed its case. Leibovitz did acquit Ward and Zaborsky of tampering, the lesser of the charges. All three men are still charged with conspiracy and obstruction of justice and, if convicted, face a maximum of more than 35 years in prison.

The trial resumes Monday. The defense attorneys said they have about six witnesses to call and expect to rest their case as early as Tuesday.

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