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Again, I’m somewhat puzzled
at the defense direction. Today’s witness, carried over from the end of
yesterday’s abbreviated session, was Cheryl Hicks, the lawyer who represented
Hans (post-Nina’s disappearance) in an attempt to regain and retain custody of
his own children.
DuBois was able to establish,
through this witness, that Hans wanted to have his two children and was deeply
upset at the conduct of the Child Protection authorities who took them
away. To this extent, Hans appears as a more sympathetic figure than
before.
In this legal effort, Hans
position was strong, his attorney thought, but she declined to put her client
on the witness stand. Why not call him? Hora pressed in cross examination.
Hicks:
It was my call. I didn't think it was something I wanted to do.
Hora: Were you trying to protect him?
Hicks: Protect him from what?"
Hora: I don’t know why you wouldn't call the most logical witness to say, 'Hey,
I want my kids back. I'm a good dad.'
Hicks: We had very limited time that day.
Reiser lost custody.
The next witness, a clinical
psychologist named Michael Fraga has spent the
entire afternoon, outside the presence of the jury, the subject of a dispute about
whether this defense witness will be allowed to testify in the case at
all.
Dr. Fraga
is being called primarily to render an opinion about the “relative credibility”
of “statements by children”. DuBois argued that Reiser’s son has made
several statements but that NOT all of them should be rejected out of hand,
just because they were made by a six year old. He added that “the degree
of credibility” would be left to the jury.
Comment: Young “R….” was
qualified as a witness before he testified at the preliminary hearing and then
later at this trial. The jury is the ultimate judge of credibility.
Obviously, Judge Goodman is having difficulty with the notion that an expert
witness should be allowed to guide the jury in their assessment of credibility
especially based on general considerations, instead of a special assessment of
young “R…”.
Dubois:
We’re just going to ask him to tell us how a 6-year-old’s mind works, and how
he might have been influenced from the very beginning…
Judge
Goodman: Don’t you think that anybody with normal knowledge knows that a
6-year-old sometimes tells you things that are true and sometimes tells you things
that aren't true?
DuBois:
Well, yeah.
Judge:
Well then why do we need an expert?
When Dubois argued that the
psychologist might have special knowledge abut how a six year old boy’s
testimony could be influenced by police interrogation, the court agreed to
allow Dr. Fraga to take the stand in the absence of
the jury in a sort of offer of proof by way of preview.
This took the rest of the
day.
Judge Goodman was
unimpressed. Then Dubois proposed that Dr. Fraga
testify about Asperger's syndrome. Again, the judge
was underwhelmed.
Then DA Paul Hora began his
cross examination by pointing out that the witness has a federal drug
conviction and a conviction for forgery.
You just can't make this
stuff up...
Under questioning, the
witness went on at length describing his prospective testimony, much of
which would not be helpful to the defense. After all this, Judge
Goodman agreed to let Dr. Fraga testify tomorrow
under “certain limitations’. He would be allowed to describe the status
of relevant research and answer certain hypothetical questions about a child
witness.
COMMENT
DuBois desperately needs to
discredit the Reiser boy’s description of Dad carrying a Nina-sized bag
downstairs; and somehow to reaffirm the boy’s testimony that he saw his mother
leave the
2-28
ADDENDUM
We are told that Dr. Fraga will be followed by a defense DNA expert. This
is very dangerous for the DA who needs to be prepared with a rebuttal expert,
one better prepared for the defense cross examination than was Ms. Cavness of OPD.
Expect more…