Then she lost patience.
“What evidence do you have when the conspiracy began?” she asked from the bench in Superior court.
And, “What is the evidence of an agreement?”
And, “Is it your position that I can find—beyond a reasonable doubt—that two of these defendants were there at the stabbing?”
Leibovitz is serving as the judge and jury in the trial that has proceeded for five weeks. The defendants—Joseph Price, Victor Zaborsky, and Dylan Ward—chose to forgo a jury and let the judge decide whether they conspired to obstruct the investigation into Wone’s death. Price is also charged with tampering with evidence. The three, who lived in a polyamorous relationship, maintain that an intruder killed Wone; the government has charged them with covering up for the murderer. No one has been charged with the actual crime.
“Pretend I’m a jury,” Leibovitz said after listening to Kirschner for an hour. “Tell me what you want me to believe.”
Kirschner rarely gave her a clear picture.
Leibovitz cocked her head to the right, rested her cheek on her palm, jotted a few notes, peered down skeptically.
At one point she said: “I wouldn’t mind understanding your overarching theme.”
The problem with the government’s case is that it has plenty of theme but few facts. To prove criminal conspiracy, obstruction of justice, or tampering with evidence, prosecutors need three things: evidence, testimony, or a confession. In this case they have little or none of each.
Very little makes sense in the tragic murder of Robert Wone. A promising attorney—well-loved by his wife, family, and friends—he worked late the night of August 2, 2006. He had arranged to spend the night at the home of Joe Price, a friend since their college days. He arrived at 1509 Swann Street, Northwest, at 10:30 PM. Ninety minutes later, he was found dead from three stab wounds. Paramedics testified that they found strangely little blood on his body. Had he been washed?
There were needle marks on his toes. Had he been injected with paralytic drugs?
Was the knife that the police found on the bedstand the murder weapon?
Could an intruder have scaled the back fence, made his or her way up two flights of stairs, stabbed Wone without a struggle, retraced his steps, and left without taking or disturbing anything?
So many questions. Judge Leibovitz wanted answers.
She asked Kirschner for facts at least a dozen times. She kept invoking her need to find guilt “beyond a reasonable doubt.”
“What facts are you hoping I find to prove tampering?” she asked Kirschner.
When Kirschner recited examples of how the defendants might have changed their stories, she asked: “What inference should I draw?” and “What are you saying I should conclude?”
To prove a conspiracy, prosecutors often record conversations where the conspirators plan a crime. Somebody’s wired, someone’s phone is tapped, a hidden microphone picks up talk of a murder or a heist.
“What’s the evidence of an agreement?” Leibovitz asked to prove a conspiracy.
Here, the government has none.
“The cumulative effect of all the facts scream there was a coverup,” he said.
When Kirschner said how odd it was that Wone was found on top of clean white sheets that had been turned down as if they were in a hotel room, she asked: “What’s the factual significance of that?”
And, “Did Mr. Wone go to sleep in that bed? Why was he there?”
“We don’t know the answer to that,” Kirschner said.
Minutes later, she asked, “Is it your position that I can find beyond a reasonable doubt that two of the defendants were there at the stabbing?”
Kirschner had no definitive answer—because he doesn’t have evidence, testimony, or confession of what actually took place.
What Kirschner has is “inferential evidence.”
He did show that both Price and Zaborsky changed their stories very slightly when they were questioned by detectives the night of the murder. He argued they changed their stories after they met in a Mercedes-Benz between interviews. But the changes were slight.
Leibovitz asked so many questions she gave Kirschner more time for his closing remarks. She engaged him in a long debate about the definition of obstruction of justice.
“Am I done?” he asked at 12:30.
“I think I’m done,” he said.
In one little bomb, Kirschner opined that one “family member” had killed Robert Wone, but the facts would be “left hopefully to a murder trial in the future.”
There are still precious few facts in this one.