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Robert Wone trial: All three defendants not guilty

Questions remain about how long Robert Wone survived after the attack.
Questions remain about how long Robert Wone survived after the attack. (Mel Barnhart, Radio Free Asia - Mel Barnhart, Radio Free Asia)
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Christopher Leibig
Defense Attorney
Tuesday, June 29, 2010; 2:00 PM

A judge has found the three men charged with conspiracy in the Robert Wone slaying not guilty on all counts.

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Christopher Leibig, a defense attorney with Zwerling, Leibig and Moseley, P.C., and not associated with the trial, will be online Tuesday, June 29, at 2 p.m. ET to discuss the verdict and the case.

Submit your questions and comments before or during today's discussion.

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NoVa: Did the police do a complete search of Wone's computer, cell phone records and e-mails? What was he doing there? Wone has some sort of relationship to these three men other than has been mentioned. Was he a closeted gay man? Maybe his e-mail and cell calls would bring this to light. I feel like the police have overlooked something here. Remember how the D.C. police messed up the Chandra Levy case? Seems like the same incompetence here.

Christopher Leibig: The evidence at the trial, which appears to have been accepted by the Court, did explain why Wone was at the house. He planned to work late, and had decided some time before his plans to spend the night in DC. His timeline that night was confirmed by witnesses.

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Washington, D.C.: The prosecution failed to meet the standard in this criminal trial, but there is still the fact of the pending wrongful death civil suit brought by the Wone family against the trio. Please discuss how the standards for prosecution will differ in the civil phase, and specifically do you think the evidence brought force against the trio in this trial would be enough to win a civil case?

Christopher Leibig: yes the civil standard for wrongful death is a lesser standard than murder, but the defendants in this case were not charged with murder. Even if the evidence proves by a civil standard that the defendants know more than they have told police, or even lied to police, this would not prove they are responsible for Mr. Wone's death. On the other hand, a trial based largely on suspicion and circumstantial evidence has a much greater chance of success in the civil context. Importantly, the defendants would have to testify, or a negative inference could be taken against them. (Unlike in criminal case)

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Washington, D.C.: The "Wone" case is just a travesty of justice. I have been following the case and thought the defendants would get off because of who they are. This verdict is just plain wrong and I hope one day Mr. Wone's wife will get justice for the brutal murder of her husband.

Christopher Leibig: The Court eloquently explained its rationale in a written order, and addressed the very real issue you mention - namely that emotion and passion could not be part of her decision. On the cold facts, the case was simply not proven, and thus the defendants were acquitted. The order reflects a principled and logical analysis of the facts and law - which is exactly as it should be.

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Brussels, Belgium: Can the prosecution appeal? Did the judge give legal reasons for her verdict that can be appealed? And why did you waive the jury (and how important was that to the outcome)?

Christopher Leibig: I was not involved with this case at all, besides as an observer.

The prosecution cannot appeal the acquittal because of the federal constitutions prohibition against double jeopardy.

One reason the lawyers who did handle the case may have waived jury is that they trusted the Court to make a principled analysis of the facts and law rather than rule on the emotions of the case. In retrospect, the Court's order reflects just such an analysis.

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So who did it?: Did these guys get off because the prosecution couldn't' make a case, or did they really not do it? The guy was stabbed repeatedly!

Christopher Leibig: Both sides agreed that the evidence did not prove who killed Mr. Wone. When you say "did it", you may be referring to obstruct justice or tamper with evidence. On those questions, the court's ruling means that the evidence failed to prove so beyond a reasonable doubt. The ruling does not equate to a legal finding that they "did not do it"

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Washington, D.C.: With the state of modern forensics, why was it not possible to determine whether the weapon found was or was not used in the crime?

Christopher Leibig: This is a great question. Unlike on CSI, most forensic opinions are based on opinions and probabilities, and not on 100% conclusions. Many thousands of knives "could" have made the wounds. Some knives can be excluded. If the knife had a abnormality on the blade, perhaps conclusions can be stronger. However, no scientist can say that a certain definitely caused a wound.

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Washington, D.C.: Do you agree with the judge's decision? What is your opinion of the case?

Christopher Leibig: I strongly agree with the decision having reviewed the written order. All of the important facts are analyzed, and the evidence did not exclude every reasonable hypothesis of innocence - which is required in a circumstantial case. Judges are charged with the duty of ruling without passion or prejudice, and it appears to me that this is exactly what happened. A credit to the Court.

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Brussels, Belgium: Did the defendants not testify? Why not? I know they have a right not to, but why in fact didn't they?

Christopher Leibig: A great question. The defendants had an absolute right not testify, and no negative inference could be taken from their decision not to testify. Here is one reason they may not have - the defense was essentially that the government could not prove the case beyond a reasonable doubt. In other words, even if you accept all of the reasonable evidence, it does not prove the case. In such a case, the defendants do not have much to add. Testifying is also a great risk - even incidental mistakes can make a person look like they are hiding something. And, let's face it, the prosecution would have had a lot of material for cross examination.

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Richmond, Va.: How does one prove "tampering"? Fingerprints, smudges, a moved body?

Christopher Leibig: Tampering does not just mean touching or moving evidence. Many, many people who discover a crime scene touch the evidence due to panic, attempts to revive, etc. Tampering must be done with the intent to destroy or diminish evidentiary value.

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Richmond, Va.: Did the prosecution charge the men with tampering with evidence because he couldn't find enough evidence for murder?

Christopher Leibig: I cannot read the prosecutor's minds, but can say both are extremely experienced and known as excellent lawyers. A logical guess is they believed a murder case would not have even made it to verdict due to insufficient evidence. They brought the case they believed in and litigated it very hard, which is their duty.

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Washington, D.C.: It seems that Judge L. thought that one of the defendants was the murderer (or at least knew the identity of the murderer). Does this crack the door open for murder charges against one or more of the defendants?

Christopher Leibig: The Courts comments on the evidence does not provide additional evidence for different trial.

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Arlington, Va.: Do you think the prosecution was pressured by the family to bring this case? The evidence was so weak, why proceed at this point? Why not wait?

Christopher Leibig: From what I know, there is no reason to believe these prosecutors operated from pressure rather than their sense that the defendants had manipulated the crime scene, etc. There was plenty of reason to be suspicious about the entire incident. Sometimes prosecutors bring underdog cases because they believe something strongly and want justice to be done. In this case, it just was not enough evidence.

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Brussels, Belgium: Do you think your view of the judge's order might be affected by your being a defense lawyer, or do you think even prosecutors hold that view if they're being honest?

Christopher Leibig: Good question. You may have a point. Although here, I actually believe a detached look at the evidence would result in acquittal, which it did. The advocates in the case - both defense and prosecution - are not expected to be neutral.

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Arlington, Va.: Do you know if anyone was given a polygraph during the investigation?

Was evidence insufficient to charge any of the three men with murder?

Christopher Leibig: On polygraph - do not know. Polygraph evidence would not have been admissible at trial in any event, and would likely have resulted in a mistrial if anyone mentioned. Polygraphs are simply unreliable, and are a tool for interrogation more than truth.

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Fairfax, Va.: You previously mentioned that the prosecution could not appeal this decision because of double jeopardy; could they be tried for a different charge (such as the actual murder) at a later date if some new evidence arises?

Christopher Leibig: I would want to do some brief research on the double jeopardy issue based on the elements of each acquitted offense- but the simple answer is that the present charges do not bar a prosecution for an actual murder.

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Washington, D.C.: Here is a follow up to my other question. If the crime scene as found by police did not jive with the blood spatter evidence, is this not a prima facie argument that crime scene was staged?

Christopher Leibig: Not really. Prima facie evidence is evidence which, if undiminished, proves a case. The mere moving of items at a crime scene, even cleaning, standing alone, does not necessarily prove that the moving of the evidence was done with the intent to destroy evidentiary value. That being said, any moving or cleaning is highly irrelevant to that inquiry,

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Norfolk, Va.: What role does the police investigation have in this verdict? Many attorneys on both sides try to show police botched the investigation in trying cases but it seems they really did here.

Christopher Leibig: Much of this is subject to opinion, but I do not believe any police botching of evidence contributed to the outcome of the case. The defense was very focused on highlighting the lack of sufficient proof - even if one accepts the large majority of the government's evidence. For example, there was a lot of back and forth about the knife. At the end of the day though - from a principled fact finder's perspective, the evidence merely showed that it might have been the knife and that there was a possibility it was not. I doubt the court was hung up on police mistakes.(which of course, in retrospect, exist in all cases - large or small)

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D.C.: Do you see any inconsistency in the Judge saying she beleived that the Defendants' knew who committed the murder and withheld the information and the verdict of not guilty. Does she explain this in the written opinion?

Christopher Leibig: There is not really an inconsistency in believing the defendants knew who committed the murder, and a finding of not guilty. The defendant's were not under an obligation to tell the police everything they knew (particularly since they had a right to remain silent - which they did not invoke during many interviews). The question is not what they knew, but whether they took steps to affirmatively fool the police. Any one of them could have sat silent from the very outset - and could never have been charged with conspiracy to obstruct for doing so.

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D.C.: Some initial press of the murder indicated that the police thought the motive/murder was some sort of crazy sex plot gone awry. Now the theory was that the murderer was an intruder (Price's brother) and that they covered up the crime. How damaging, in terms of the initial investigation and the trail, was the original theory, and at what point did the investigators shift their focus.

Also, if in fact the police find Price's brother, try him, and convict him, could the three be retried?

Christopher Leibig: In a jury trial the initial press could be a concern because the jury pool may have heard about it. In a bench trial, no so much. The Judge is versed at ruling only on the facts presented, and also aware that the litigants cannot be blamed for every outlandish rumor.

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Rockville, Md: Is the judge's full ruling available online yet?

Christopher Leibig: Yes. it is on whomurderedrobertwone.com

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washingtonpost.com: WhoMurderedRobertWone

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Washington, D.C.: As an attorney in the D.C. region, what is your sense of the defendants' future employability, particularly the one who is himself an attorney, Joe Price? If he has not been disbarred, can he still practice as an attorney in D.C.?

Christopher Leibig: If not disbarred or suspended, he can practice. This is just a guess, but opinion about this case was polarized. Not everyone believed he was guilty at all. Many people in legal community likely still support him.

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Arlington, Va.: The fact that the judge made findings stating that one of the defendant's may know who murdered Robert Wone -- or may have information regarding a conspiracy -- will that be useful against the defendants in civil court?

Christopher Leibig: Those comments indicate her belief about the evidence, but would not be admissible at a civil trial.

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Washington, D.C.: Was the prosecution's failure to show that the "true" murder weapon was concealed a prime factor in the judge finding reasonable doubt? Where there any other prosecution failures that cast significant doubt?

Christopher Leibig: The prosecution really went after the removed knife theory, and obviously if one of the defendants hid the real murder weapon from police and replaced it, that would be enough to prove tampering. If more than one did, it would likely prove an agreement to obstruct justice. So yes, that is a big point.

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McLean, Va.: Is it typical for a judge to basically say "the defendants either did it or know who did" but render not guilty verdicts?

The judge simply could have said that the burden of proof was not met, but she specifically noted: (1) beyond a reasonable doubt that there was no intruder; (2) beyond a reasonable doubt that one of the three murdered Robert or know who did; (3) highly likely, though not beyond a reasonable doubt, that Joe Price tampered with evidence and obstructed; but (4) judge has a 33 1/3 problem -- cannot establish beyond a reasonable doubt that any of the three actually committed the crime.

Christopher Leibig: It seems the Court wanted to acknowledge the strengths of the governments case, even if the evidence was insufficient in the end. No doubt the Court believed it was a case worthy of trying, and may have wanted to make it clear she did not fault the government or the members of the community who believed in guilt.

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Washington, D.C.: Your replies illustrate the central fallacy of our justice system: we guarantee, and strive for, a fair trial. Not justice. And I think the system regularly delivers fair trials. But people want justice, and fair trials do not guarantee justice. And to say "this is the best system we have" is a cop-out, because the aim is not justice, but a fair trial. A system designed to deliver justice would be different from what we have now.

Anyone who has been in a court on any regular basis knows (a) the justice system is a system and (b) justice is not achieved a substantial percentage of the time.

Christopher Leibig: I 100% agree. The system is not about justice as that term is usually used. It is about the process. That cuts both ways. Here, some believe moral justice was not done by acquittal. On the other hand, innocent people are held in prison because they did receive "fair process". In both cases, it is not about moral fairness, but systemic integrity. As a defense attorney, I share some of your frustration here.

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Washington, D.C.: I noticed in your biography that you went to some of the same schools as some of the defendants. Did you know any of the defendants personally? And, if so, could this account for any bias?

Christopher Leibig: I have never met or spoken to them and do not know anyone who knows them. If I remember right, they are about 4 years younger than me.

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Los Angeles, Calif.: Why would an intruder bypass the first bedroom door he would have seen at the top of the stairs and enter into a guest room that would not have been occupied if Mr. Wone had not decided at the last minute to spend the night?

Christopher Leibig: A great point, and one argued by the prosecution. In a circumstantial case, suspicious circumstances are insufficient to convict. A lot of evidence pointed to the absence of an intruder - but it is still hard to prove a negative. This was a very odd case in many ways, and one of them is that it is possible only one of the defendants committed a crime, but which? Naturally this is an unsatisfying concept on the moral level, but each defendant had a right to acquittal as an individual, not as part of a collective group. Part of the earlier referenced 33 1/3 problem.

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If not disbarred or suspended: How can they disbar him if he was found not guilty?

Christopher Leibig: The DC bar does not employ the same rules of evidence as a criminal trial.

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Christopher Leibig: Thank you for all the questions on this interesting case. Despite the fact that many people are frustrated, it is also an example of everyone performing their role properly. The prosecution brought forward every conceivable suspicious circumstance, the defense pointed out the problems with that evidence, and the Court made an unbiased decision.

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Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.


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