Lawyers representing the three men charged in connection with the death of Robert Wone have no interest in simultaneously participating in a civil wrongful death action while the criminal charges are pending.
The lawyers, including David Schertler, are accusing counsel for the Wone family of gaming the judicial system, pressing for information in the wrongful death case to bolster the criminal prosecution. The Wone family lawyers at Covington & Burling say the accusations are meritless.
Schertler fired off a letter to Covington partner Benjamin Razi this month demanding answers about an apparent private investigator in Florida who reportedly was pretending to be a lawyer for Schertler's client Dylan Ward. Schertler, alerted to the man by Ward's friends, wrote that the person must "cease any and all representations that he is Mr. Ward's attorney or works for Mr. Ward is any way."
The criminal case against Arent Fox partner Joseph Price (pictured at left), Victor Zaborsky, and Ward—the men are charged with conspiracy, obstruction of justice, and evidence tampering flowing from the fatal stabbing of Wone in August 2006—shares the same facts as the wrongful death suit filed in November.
Lawyers for the defendants in the civil case—Schertler, Larissa Byers, and Craig Roswell—argue in motions filed Jan. 23 in D.C. Superior Court that the civil matter should be put on hold and that the defense should not have to participate in discovery, including depositions, while the criminal case is pending.
Anything Price, Zaborsky, and Ward might say in a deposition could be used against the men in the prosecution. And silence in a depo? That could expose the men to liability, the lawyers note.
“Permitting civil discovery at this juncture could therefore undermine the integrity of the criminal prosecution currently underway as well as violate the defendants’ due process rights,” the defense lawyers say. Schertler, Byers, and Roswell argue the “public interest in the just and constitutional enforcement of the criminal laws outweighs the private interest of any single individual in pursuing money damages for an alleged wrong.”
Price, Zaborsky, and Ward have not answered interrogatories that Covington partners Razi and Stephen Rodger filed. The questions do not gloss over anything. The defendants are asked, among other things, “whether and how you or any other person(s) stabbed Wone” and “whether and how you or any other person(s) physically or sexually assaulted Wone.”
The Covington lawyers also want to review e-mail communication among Price, Ward, and Zaborsky related to the Wone case. A subpoena was sent to Arent Fox earlier this month. D.C. police reported seizing "a large number of male pornographic photos” featuring sadomasochistic behavior on Price’s office computer at Arent Fox, according to a search warrant affidavit.
The criminal case lawyers—Schertler, Bernie Grimm, and Thomas Connolly—have declared in court and in motions that their clients have not committed any crimes and are eager to defend themselves at trial. The lawyers say statements in charging documents are fantastic and defy logic.
The defendants’ answer to the civil complaint was simple: none of the men admitted or denied anything, citing the right against self-incrimination while the criminal case is pending. Lawyers for Price, Zaborsky, and Ward say they’ve told police everything they know about the night Wone was killed. Prosecutors say the men are holding out.
For the Covington lawyers and Wone’s family, there still remain more questions than answers.
"The effort of Messrs. Price, Zaborsky, and Ward to further delay the investigation and resolution of Mrs. Wone's claims is unfortunate, but not surprising," Razi said in a statement. "We will respond at the appropriate time in Court."
Schertler represents Ward in the criminal and civil cases. Grimm, a Cozen O’Connor partner, is representing Price in criminal court. For civil representation, Price retained Niles, Barton & Wilmer partner Craig Roswell of Baltimore, who chairs the firm’s litigation department. Byers, an associate in the Law Offices of Frank Daily, in Hunt Valley, MD, is representing Zaborsky in the civil case. Connolly, a partner with Harris, Wiltshire & Grannis, represents Zaborsky in criminal court.
A status hearing in the wrongful death case is set for Feb. 27 before Superior Court Judge Brook Hedge.