Emily Babay

The Washington Examiner

By Emily Babay

It is “very probable” that the three men accused of covering up Robert Wone’s death conspired to mislead police, a D.C. judge ruled, but prosecutors still did not present enough evidence to warrant a conviction.

Superior Court Judge Lynn Leibovitz found Joseph Price, Dylan Ward and Victor Zaborsky not guilty of conspiracy and obstruction of justice Tuesday.

Price was also acquitted of tampering with evidence in connection with Wone’s Aug. 2, 2006, stabbing death in the trio’s Dupont Circle town house. Ward and Zaborsky had previously been acquitted of that charge.

Prosecutors did not prove their case beyond reasonable doubt, Leibovitz said.

No one has been charged with killing Wone, who died from three stab wounds to the chest. Lt. Nicholas Breul, a D.C. police spokesman, said he didn’t know whether there were any active leads in the case.

Should new evidence arise, there’s nothing to preclude filing murder charges against Price, Ward or Zaborsky.

Many questions in the case remain, and authorities say Wone’s death is still an open homicide investigation. Wone’s widow has a $20 million wrongful-death lawsuit against Price, Ward and Zaborsky pending in civil court.

Leibovitz said Tuesday that she knew her verdict would be “cold comfort” to Wone’s family, but the reasonable doubt standard is essential in the criminal-justice system. “It is better that 10 guilty persons escape than that one innocent suffer,” she said, citing English jurist William Blackstone.

Leibovitz called the defendants’ theory that an intruder killed Wone “incredible.”

But, she said, that does not prove what each defendant knew when he spoke to investigators. Any of the men could have been the “odd man out of the scheme,” she said.

The case was widely viewed as difficult to prove, and legal experts said attorneys for the Wone family would face a lower burden of proof in the civil case.

In civil cases, plaintiffs must only show a “preponderance of evidence,” meaning that the allegations are more likely true than not.

Civil attorneys also have more leeway than criminal prosecutors in the questions they can ask, said Joseph diGenova, a former U.S. attorney for D.C. He said the defendants would be required to give depositions.

None of the defendants testified in the criminal trial. But if they don’t testify in the civil case, diGenova said, jurors are allowed to infer that they are not speaking because doing so would harm their case.

Lawyers said it’s unlikely that Leibovitz’s statements suggesting that a cover-up occurred would be admitted as evidence in a civil trial.

Such assertions would be hearsay, said Wayne Cohen, a personal injury lawyer and past president of the D.C. Trial Lawyers Association.

Benjamin Razi, Kathy Wone’s attorney, could not be reached for comment.