Can a lie strongly tend to prove the truth

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PEOPLE VS. HANS REISER

The CASE OVERVIEW

[as of Monday 9:00 AM April 7]

INCRIMINATING CIRCUMSTANCES?

Vs.

SEEDS OF DOUBT?

THE Gaskill SCORECARD UPDATED:

Weeks ago, I made the following points:

To convict Hans of killing Nina, the prosecution will need to advance at least one plausible theory, consistent with all the evidence and supported by at least some of it, covering the following questions:

Where and when did the killing probably happen?
When did Hans have ‘free’ time after Nina was at his door, time when he was unobserved?
What method of body disposal would be capable of frustrating the authorities for all this time?
What access did Hans have to that method?

So far, the DA is getting a C- on this, but a B+ is probably needed.

Weeks ago, I posted the following Scorecard [My revisions are in brackets]

>Hans hated Nina and wanted her out of the way: Proved.

>Nina disappeared under sinister circumstances: Proved.

>If Nina could come back she would: Proved.

>Hans threatened Nina: Blocked

[Pending – Hard Drive may reopen]

>Nina’s blood was left behind in sinister places: Proved

[Blood evidence is still solid, but some circumstantial doubt was added]

>Hans destroyed key evidence: Proved.

>No one else is a plausible suspect: Open.

[Sean Sturgeon is the wild card here.]

>Hans has an alibi: Not Proved.

>Hans has lied about important matters: Proved.

>Hans behaved evasively when under suspicion: Proved.

>The only reasonable explanation is that Hans murdered Nina. ???

[Still open]

ENDGAME ANALYSIS

PART ONE – HOW TIGHT IS THE NOOSE?

WHEN DECEIT IS AN ADMISSION OF GUILT

Q: When can a lying denial be used to prove the truth of that which is denied?

A: Whenever a jury decides that the lie tends to reveal a guilty state of mind.

Juries are independent arbiters of the facts. There can be no mandatory rule in this area, except that a witness who lies in one part of his or her testimony may be “distrusted” in other parts of the same testimony.

With that qualification, walk with me, if you will, through this exercise in “legal logic”.

Assume that a particular situation is either A or B; in other words, when we know it is one of the two possibilities we automatically know it is not the other. This is basic “Aristotelian” logic, right?

Well, let’s explore consider the following examples.

(a) Our Witness lies about that Situation, saying that it is B (which makes the witness innocent). It is perfectly reasonable to assume that A is true (i.e., that the witness is guilty) because we know that he is lying.

(b) Now our Witness solemnly swears to us that Situation really is B. But this time are pretty darned sure that the Witness is not being truthful with to us; = we can detect this from his demeanor on the stand and we have learned from other evidence that he’s probably not telling us the truth about a whole range of things. This “other’ evidence is cumulative in that any one piece might not undercut the witness’s credibility but it all adds up to that effect; history just doesn’t hold up. When we conclude that Witness is lying to us, we are entitled to also conclude that A is the case, i.e., that the lying witness who denies is guilty. This is almost as straightforward as the first example, right?

(c) Now let’s assume that our Witness swears as he did in (b) that his Situation was B. We are very suspicious about his truthfulness on this point, based on his demeanor. He just doesn’t sound truthful to us. And we are convinced (not relying on his demeanor) that in some of his other “under oath” testimony he has definitely lied to us. And, yes, there is other evidence pointing in the direction that A is true, not B, but the picture is a little less complete that we’d like. Here we find ourselves leaning towards A, but we are hesitant.

In this schematic, the Witness, of course, is Hans Reiser and the Situation is the question, “Did Hans Kill Nina?” B is ‘Hans did not kill Nina’ and A is ‘Hans did kill Nina’.

In (a), logic alone tells us that the Witness’s false denial amounts to a confession. But example (a) is artificial because it was also built into the question that Hans was lying when he said he did not kill.

The other two are real life scenarios. In (b) we can’t absolutely know that Hans Reiser did kill Nina, but we can be reasonably sure that Hans was not being truthful with us when he denied doing it. So in real world example (b) we can readily imagine jurors who are persuaded from Hans’ demeanor and the totality of evidence that he is lying about a number of things and also about the killing. These jurors can properly conclude, based on logic, human experience and common sense, that Hans is guilty of the killing – at least beyond a reasonable doubt.

Now in example (c), things are not quite as clear cut – and they are pretty close to the Reiser case as it now stands. I expect that the prosecution will be able to show that that Hans has lied about some facts important to the case. The jury will then be asked to conclude that Hans is also lying about not killing Nina, on the basis that his lies all share a common purpose – to conceal his guilt and to avoid accountability.

In fact, the jurors are allowed to infer guilt from the various lies and deceptions of a defendant. Note that the word was allowed, not required.

The takeaway point: When someone accused of murder has engaged in flight, attempted flight, concealing or destroying evidence, deceptive and untruthful answers to material, relevant questions on the witness stand, these facts (they are really elements of circumstantial evidence, if you will) form a pattern from which the jury is entitled to infer guilt. The reasoning is straightforward: A pattern like this is more characteristic of a guilty state of mind than an innocent one. The ultimate weight of all the evidence is up to the jury and the defense remains free to argue that innocent people may from time to time act evasively and suspiciously because of mistrust of the authorities or from other concerns, rational or irrational.

A LIST OF THE INCRIMINATING CIRCUMSTANCES

1. A perfect storm of motive and timing.

A restraining order against Hans was issued early on in the divorce.
A grave warning to Nina by officer Denton after observing Hans’ anger
Hans was trained in the martial arts, earning a black belt.
Hans and Nina were locked in a bitter and unresolved divorce leading up to September 3 when the couple so vehemently disagreed about kids on the Labor Day weekend 2006 that lawyers had to mediate even that.
The shaky financial condition of Hans’ business was getting more and more perilous.
Hans believed that Nina stole from him.
The child custody disputes were ramping up, getting more bitter.
Nina’s threat of bankruptcy promised financial ruin for Hans’ company.
No one was home on September 3^rd except the kids.
Hans’ complete distrust of the courts made the legal process seem futile.
Nina teased Hans with the prospect of a settlement, then abruptly tried to walk out.

2. Hans’ nervous behavior before Nina’s absence is discovered leading to his “I’ve got to see a lawyer” statement.

Natalie was in charge of the children’s after school program on the day Nina picked them up for the last time. Nina didn’t show. Ellen had come by to pick up the kids at 2:30, but Natalie wouldn’t immediately release them to Ellen. She called Hans, leaving a message. Hans did not call back. Then –about 5 PM, a few minutes before Ellen came back for the kids – Hans arrived. He mentioned nothing about Nina or the calls. It seems he was not there to pick up the kids – just wanted to chat about the after school enrollment policies. The witness remarked that his demeanor was strange.

Natalie: ‘He was very nervous-like. There was no eye contact with me whatsoever, just very hyper. Was not calm at all.’

Reiser agreed to let Ellen pick up the kids. Ellen, called the police after picking up the two kids at school, apparently around 5:30, having tried unsuccessfully to find Nina. She called Hans, told him that Nina is missing and asked him to keep the kids. This is September 5, before Hans mother has returned from Nevada. Hans declined. Then Ellen told Hans that she knows Nina was at his house Sept 3. Hans’ reply: “I need to talk with my attorney.”

3. Hans’ pattern of cover-up and evasion behaviors starting before Nina’s absence is “discovered” and ramping up immediately afterwards.

Having gone to Mom’s boyfriend’s house to pick her up on the evening of September 5, Hans took a nap before he was able to bring Mom back the Exeter. He was not using the CRX. Altough he knew Nina was missing he allowed Mom to retire without telling her.

Hans’ suspicious hosing down the interior of the CRX and the driveway. This is followed by valiant efforts to keep the police from finding the car, throwing out the front passenger car seat, and disposing of an interior trim piece, the latter because of the smell.

Removing the hard drives from the home computer.

A strange pattern of travel to and from Manteca, investigating a storage unit there, then traveling as far as the Truckee/Reno area.

Carrying his passport and cash in a fanny pack with a cell phone the battery of which was removed, thereby disabling and GPS location feature or cell to cell triangulation of his location.

Lying to his Mom about the CRX in an effort to get her car to use.

Abandoning the CRX in a place of concealment, running from the location on foot.

5. The telltale links between Hans and Nina suggesting foul play.

An identifiable smear of Nina’s blood on a sleeping bag cover left in the CRX.

R…’s ‘dream’ about Hans carrying a mom-sized object down the stairs. For context, note that the couple’s ‘final’ argument would have been upstairs of the kitchen & play area where they were before and after they came upstairs to hug Mom goodbye.

A prominent, red blood smear belonging to Nina on the front entrance post, a scratch consistent with an attempt to wipe it off, and a trace of Hans’ DNA on the same post.

Nina’s cell phone in her abandoned car – otherwise eerily untouched and undisturbed – from which the battery was removed just as Hans’ battery was, suggesting (not necessarily proving) a common signature.

The trajectory of Nina’s car and apparent speed (because the groceries were tossed about) was away from the Exeter house but not towards Nina’s place, suggesting (but not proving) that the car was moved to a place of concealment, away from a place that might focus more suspicion on Hans.

HANS ON THE STAND

A. New Evidence Generated As A Result Of Hans’ Own Testimony

That Stench

No one knew that Hans hosed down the inside of the CRX and tossed away a trim piece because of an awful smell before he testified. Was it the stench of death? Does it explain why he also ditched the passenger seat?

The Admitted Lie

Hans admitted that he had lied to the jury in the first minutes of cross examination. He felt bad. What else is there in his testimony still unacknowledged?

Hora: Let me begin by asking if you're willing to admit, here and now, that when you testified you willfully concealed the fact that you routinely removed the battery from your cell phone after Nina disappeared?

Reiser: Yes, and I feel badly about that.

Hora: And that was a willfully false or deliberating misleading statement of a material fact, do you agree?

Reiser: Yes.

Hans Hid the CRX

Hans admitted that he evaded the police because he didn’t want them to seize his CRX. He contemplated throwing away the police procedural books he kept there. He parked the CRX on Monterey Boulevard to hide it from the police and “ran like the wind” to get away from the car. [Remember this was the defense examination]

The Storage Unit: A Place of Concealment.

Hans admitted that he had explored using the Manteca storage facility to hide the CRX, but decided against it because there were guards 24/7. Hans explained that he wanted to be able to sleep there.

Contents of the Couple’s Last Argument.

Reiser: “I don't like these conflicts with family, you know? It's just horrible. And I wanted to go to a mediator from the very beginning. And I told her that if we didn't go to a mediator, Namesys would go bankrupt.” Hans was also concerned that Namesys' programmers “really got screwed by this whole thing. They still haven't been paid. They're still owed $130,000, probably more. In spite of the fact that Nina had just offered to give Hans Namesys in the divorce, Hans was “unhappy” when she left abruptly. Why? “Cuz only the lawyers win in divorces.”

B. Testimony That Was Inconsistent And/Or Refuted

Many witnesses get the benefit of “innocent misrecollection”. Will Hans? This is a witness who can recall exactly the license number of a car that was following him but is vague to the point of dissembling about where he tossed part from the CRX.

Han has contradicted himself at several points. One is of particular importance: How many times did he sleep in the CRX? To begin with, he claimed “several”, which would be consistent with his stated reason, elaborately justified by references to “family tradition”, that he got rid of the CRX seat to make room to sleep in the car. But on cross examination “several” shrunk to one.

Hans has waffled about when he removed the hard drives from his computers, having first suggested that he pulled them between September 6^th and 8th. The 6^th would have been a dangerous date for Hans because no one (except Nina’s killer) would have known that Hans would be a logical suspect. So Hans refined his “estimate” about the time making it closer to the moment he consulted with DuBois.

HANS: I don’t think that anybody would particularly want the government going through their hard drive.

HORA: Why did you think if you removed this on Sept. 7, Nina’s missing, nobody knows where she is, according to your testimony -- you don’t know either -- why did you think police would be searching your house and your computer on Sept. 7?

HANS: I was told by my attorney that as the husband, I would be the primary suspect.

HORA: In what?

HANS: The disappearance of my wife.

All this is pending as of 9:00 AM Monday morning, April 7, 2008.

Hans is still on the stand; the hard drive evidence, if any, has not been revealed. Neither side has rested its case.

PART TWO – THE SEEDS OF DOUBT

We can think of a circumstantial evidence case of this type as the attempt to completely encircle the defendant with arrows of strong suspicion, each arrow pointing inward towards Hans Reiser, the “angry, arrogant husband”.

The defense strategy is two pronged: (1) to weaken particular arrows opportunistically and (2) to open a breakout hole in the circle large enough to accommodate actual innocence. (1) represents the alternative “innocent” explanations for incriminating circumstances, such as “the blood smear was a nosebleed” or “hosing the inside of my car is a sort of family tradition”. By themselves elements of this prong of the defense counterattack won’t be enough because of Hans’ poor performance on the stand. (2) represents the attempt to establish an affirmative defense with sufficient promise that is undercuts the whole prosecution case. So far, there are three possible ways that the defense could still proceed with prong two: (a) Nina fled the jurisdiction; (b) Sean Sturgeon did it; (c) A mystery stalker did it.

Sturgeon

The defense has asked a line of questions of boyfriend Zografos suggesting that the couple was having trouble and that Nina was in financial distress. Then DuBois established that Zografos knew that Nina had borrowed money from her ex lover, Sean Sturgeon. Apparently Nina had asked Sean for money even after she was no longer seeing the guy. But a series of questions designed to elicit damaging character material about Sturgeon were cut off, including an attempt to get in the notion that Sean was a ‘sex worker’. DuBois is pressing against a wall here. At the time, I concluded that this sort of derogatory information about the ex boyfriend had been ruled out of bounds by the court for some reason. I wrote: “This is dangerous territory for the DA because when a jury thinks valuable, potential exculpatory information is being kept away from them, they are inclined to punish the prosecution. DuBois has elicited just enough for the jury to begin to wonder.” I speculated that Sturgeon must have an iron clad alibi or have been ruled out a suspect for equally sound reasons. And I added, but “if this is not the case, then we can expect the defense to go even further with this line.”

Mystery Guy Stalker

I said earlier in the trial that “DuBois scored with a series of questions about Nina using Craigslist for dating even when she was with Zografos. It was all just play, the witness said, telling the jury that he knew about it. But the a seed of doubt was sown. I speculated: “Several jurors are now asking themselves questions. ’Is it possible that some creep from Craigslist began stalking her?’ ‘Didn’t we hear about child molesters exploiting that service?’”

Was Nina listed on Craigslist? No evidence was adduced. At the time, I wrote: “If Nina herself was not listed, that is a fact I’d expect the DA to address.”

The Son’s ‘Alibi’ – Another double-edged sword

The Reiser boy has actually said that he saw Nina leave the Exeter house on September 3 and drive away. Frankly no one knows what to do with this troubled boy’s testimony. The DA was able to weaken the partial alibi and the defense has to deal with the rest of the boy’s testimony as well.

As I observed at the time:

The boy has recounted “vision/dream/recollection (never clear which) about Dad carrying a Mom sized bag down stairs. Hora asked Grandma whether “anybody, to your knowledge, [was] talking to him about his mother or his father?” Not.

Dubois has asked the boy whether he was dreaming. The boy said he was awake.

Then an even more sinister colloquy with the boy was recounted. He said that Mommy and Dad frequently fought. Though he confirmed that he saw Mom leave the house for the last time, the boy talked about a room in the house where he thought Daddy might have hidden Mommy, described as having an exterior door. And he reportedly described a fight in which (in Grandma’s words) Nina “couldn't scream because Hans covered her mouth with a scarf.” This was all impossibly vague as to time, place and circumstance and the defense is sure to seize on the concession from the boy to his grandmother that he say his mother leave the house (presumably on the final day).

While this will fall short of an alibi, it contains the seeds of doubt, just as the scarf description contains the seeds of terror.

Nina’s Escape?

This theory is that Nina, who is facing bankruptcy, an impossible divorce, a nutter husband and the cloud of criminal charges for possible embezzlement, too a stash of money (presumably provided by Sean Sturgeon but not yet frittered away by Nina) and bribed her way out of the country to start a new life, vanishing with out a trail.

Like the other possible elements of the second prong of the defense case, this scenario is underdeveloped and under-supported with evidence. The defense will argue – correctly – that the entire burden of proof is on the prosecution and the defense need not prove a thing. That is technically, but not psychologically true in a case where the defendant appears to have been as secretive and deceptive as this one. More is needed, in my opinion. And time is running out.

Stay tuned.

JBG