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A GOOD START

NOTE: DuBois argues for the defense again Monday, April 21, followed by Paul Hora’s expected rebuttal.

The defense has argued part of yesterday and all of today, doing very well with the preliminary matters, explaining reasonable doubt and how the police and prosecution tend to overlook potential defense leads. And Bill DuBois accomplished this without a frontal attack, all the while praising the talent of the prosecutor and the hard work of the police. This part of his argument was letter perfect.

Then, as we might expect, Bill Dubois' argument was threaded with a point by point deconstruction of the DA's evidence, taking each bit of circumstantial evidence, diminishing it or supplying an innocent interpretation or both. This approach works best when there are fewer pieces to discount and a weaker overall pattern of incrimination. It also helps if your client has not lied.

The defense approach here is to compare the defendant with an unlovely aberration, the “almost duck” (the jury is apparently treated to an image of a duck billed platypus), and to turn Hans Reiser's geeky, off center, socially maladroit personality into an asset. Bill DuBois: “Just because he's 'acting funny' doesn't prove he's guilty.”

Dubois made a potentially telling point to which Paul Hora will need to respond. When discussing the blood traces on the post at the Exeter house: “As far as the expert can say, it was ‘Hans’ blood and Nina's saliva,’ or ‘Nina's blood and Hans’ saliva.’”

I am reminded that there were blood droplets, suggesting splatter. Because this is one of those points where the jury may request read-back during deliberations, it is in Hora's interest to try to nail the point in his rebuttal, if DuBois has this wrong.

DuBois used the other blood traces in the Exeter house to his advantage. All those deposits were innocent, implying that Nina's blood and Hans’ blood on the post could also be innocent. As I mentioned above, he did not address the “splash” issue.

But as DuBois reminded the jury, “people leak”.

DuBois is doing what any competent defense attorney needs to do at this phase on the argument. But to drive all or several jurors to vote for an acquittal, he still needs an over-arching alternative theory of the case. All the “but this bit of evidence is susceptible to a reasonable innocent explanation” arguments are merely preparatory.

I believe that the jury is troubled by the absence of the body but not necessarily enough to acquit a defendant they believe has been lying to them.

But the jury will be very, very troubled by the credible introduction of another suspect or class of suspects. This will require them to rethink the entire case along the very lines that DuBois' threshold approach has recommended. So when the defense argument resumes on Monday, we’ll be looking for more about the “other suspects.” And wondering whether the defense still has the credibility to “make the sale”.

JBG