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Blogging the Reiser trial – The chronological Archive

 

THE PEOPLE OF CALIFORNIA

VS.

HANS REISER

 

One

 

MONDAY

IT BEGINS….

 

Did Hans Reiser Commit Murder?

Where is the body?

 

Computer guru, Hans Reiser is being tried in Oakland for the murder of his wife, Nina. 

The corpus delicti is still missing and no one, save her putative killer, has seen Mrs. Reiser dead.  Wisely, the Alameda County DA’s office is not seeking the death penalty; it will be difficult enough to obtain a conviction as it is.

 

The couple was in marital trouble before Mrs. Reiser’s sudden disappearance (yes there are blood traces in suspicious places), and their children have been spirited away to Russia by “grandma” who lives there. Their involuntary extradition is not a reasonable prospect.   Paul Hora, an experienced trial lawyer, is handling the prosecution; the unflappable and even more experienced Bill DuBois is the defense attorney. 

 

I will have something to say about this interesting case in this space from time to time. 

But to follow the action hour to hour, I recommend the blog by the San Francisco Chronicle’s Henry K. Lee who is attending the opening statements as I type these words. The link is www.sfgate.com/ZBLH  .

 

The case is nicely balanced, with a tilt towards the prosecution. 

 

Here is the key and what to watch for: 

 

What will the jury hear – or be able to infer - about the character of the defendant, Hans Reiser?

 

To prevail, the defense team will need to fill in the blanks about this man.  Who is he really?  Is he capable of murder? What makes him tick? 

 

If Reiser is ready and willing to testify in his own defense, it would be a mistake – in my armchair opinion – not to put him on the witness stand.  

 

Yes, there are always pitfalls with that approach, and any cautious defense counsel will always be tempted to run the classic “reasonable doubt” gambit without putting his client to the test.  But I have a gut feeling that approach will not work here.  I suspect that a little more is needed.  Does the defense have it?  Will Mr. Reiser be willing to undergo cross examination? 

 

The opening statements may reveal the first shadowy outlines of the defense. 

Or not.  An experienced and inherently cautious defense lawyer like Bill DuBois may want to play his cards closer to the vest. 

 

Opening statements were postponed until tomorrow.

 

Two

 

THE REISER TRIAL, DAY 2:

Hans Reiser Is In Charge

 

Lawyers generally don’t talk to the press about what their murder client has or has not told them, a least not without the client’s permission and as part of an overall strategy. 

Yesterday, when it was announced that the opening statements would be delayed until today, Hans Reiser’s lead attorney, Bill DuBois, spent a few moments chatting with San Francisco Chronicle reporter Henry Lee.  [Please see the full article on www.sfgate.com   at this link: http://www.sfgate.com/cgi-bin/interstitial/main/showad?target_url=http%3A//www.sfgate.com/cgi-bin/article.cgi%3Ff%3D/c/a/2007/11/06/BASUT6KAE.DTL  

 

In the course of this exchange, some very interesting things were revealed. Here are my top three:

  1. The defendant intends to testify, even though “it would be easy” if he didn’t.
  2. Reiser has been an active participant in the defense, familiar with the “9,000 pages of discovery”, and he has occasionally disagreed with his attorneys over how to proceed.
  3. The pull quote from Mr. DuBois: “… [W]e don’t know how he will come across because of his intellect.”

 

This exchange is fairly easy to decode.  Mr. Reiser, a software genius, is something of a control freak.  The defense is undoubtedly worried that he will come off as one, as a much smarter than the average bear, and as an unsympathetic “cold hearted geek”. 

Any jury that can see Mr. Reiser capable of cold hearted ruthlessness will have little trouble deciding this case against him.  As I wrote yesterday, Hans Reiser’s character will be the elephant-in-the-room subtext of the whole trial. 

 

I agree that putting the defendant on the witness stand is a roll of the dice, but I tend to agree with Mr. Reiser. It is this defendant’s best (maybe his only) chance of getting an acquittal. 

 

File this thought away: If the Reiser case is ultimately mistried because of a hung jury (especially is there are 6 or more votes for guilt) you can be assured that the DA’s office will have another run at it.  Very few software geniuses have the means to fund a second high profile murder trial, let alone the first one.

 

The DA’s opening statement will occupy front stage today and all or part of tomorrow.  This is a critical part of any case that has no smoking gun, no bloody dagger and no eyewitnesses.  Isolated bits and pieces of evidence need to be understood by the jury in the overall context of the people’s case.  The opening statement is the prosecution’s one chance to provide that context in advance. 

 

In this atypical murder case, the DA will need overwhelming evidence of at least three things:

(1)   that Mrs. Reiser’s sudden disappearance was due to foul play;

(2)   that Hans Reiser is the only plausible culprit, in effect, that – absent a miraculous violation of the laws of common sense – he is the only one who could been responsible for the foul play; and

(3)   that the totality of the circumstances effectively exclude any realistic possibility that Nina Reiser survived the foul play.

 

WHAT TO WATCH FOR:

 

This is not a slam dunk case even if the DA carries the day on all three lines of proof. 

 

Look closely for how prosecutor Hora attempts to address the huge hole that remains:

How, plausibly and realistically, could Nina Reiser’s body have been disposed of so effectively that now, more than a full year after her disappearance, the authorities remain stumped?

 

Opening statements will probably occupy the next three court days and there will probably be a recess on Friday.

More to come….

 

Three

 

NOVEMBER 07, 2007

The Reiser Trial: Day Three

Something Big….

 

No prosecutor in his or her right mind will promise an important bit of proof and then not present it.  Assuming that there will be no egg on Mr. Hora’s face later this year, the jury will hear testimony from Mr. Reiser’s little boy, who is to be flown in from Russia.

 

In what the prosecution conceded might have been a nightmare, the boy (name withheld) is expected to say that he saw “something big” being carried out of the house the night of the last day Mommy was seen alive.  This may be enough to help plug the gaping - “Where is the body?” - hole, even if the boy’s testimony is discredited. It also will tend to rule out the suggestion that Mom is now hiding out in Russia

 

We now may know why the opening statements were delayed from Monday to Tuesday. 

Frequently, there is an objection to a proposed inclusion in counsel’s remarks.  Alert defense counsel would have tried to keep out the boy’s testimony in a motion in limine. After all, the bell once rung can’t be un-rung.

 

I hope to do a piece about all of the expected evidence next week. Meantime, there was one other damaging bit of proof mentioned today.

 

On the day of Nina Reiser’s disappearance, she and the children were captured on a grocery store security camera.

 

Recall that the sacks of groceries from the same store – by then rotting – were found in her Honda Odyssey several days later. I expect that the DA will present circumstantial evidence tending to show that Mrs. Reiser suffered “foul play” on or near the day of her disappearance.  The jury will be asked to infer that her Odyssey was moved to the Montclair District spot by her assailant after she was “out of the way”.  We can expect to learn of evidence linking the Odyssey to Mr. Reiser.  We might expect the defense to argue that she was the tragic victim of an Oakland thug (but therein lies a trap; that line of argument supports the implication she was murdered).

 

We can be sure that this case will look much different in one week.

 

For reporter Henry Lee’s full account go to http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/11/07/BANMT83JE.DTL

 

Four

 

Friday

THE REISER TRIAL –

Opening statements are over

HIGH THEATER AWAITS

 

Bill DuBois, ever the old pro, made (by all counts) a very effective two hour opening statement yesterday.  As predicted, court is not in session today and will take up the jury trial again on Tuesday.  Clever court watchers would be advised to keep an eye on the courtroom Monday because I suspect there are in limine motions to be made.

 

The thrust of the defense is a character contrast: Nina as highly social and manipulative and Hans as brilliant, highly unsocial, but a lamb to the slaughter.  Nina, a mail order bride, whose family has ties to the old KGB (all this, so far only according to DuBois) only married Hans to get citizenship, then had an affair with Hans’ “sadomasochistic” friend. The defense will try to sell the notion that Nina intentionally set up her husband then deliberately disappeared. And that the two books on homicide (arguably useful to a prospective killer) found in Mr. Reiser’s car were only a product of the client’s “intellectual curiosity”.  Note that Bu Bois was forced to concede that the books belonged to Hans, not planted by Nina (in her sinister KGB mode).

 

One of the classic functions of a defense opening statement is to take the sting out of the prosecution’s outline of proof, if possible startle the jury into a receptive state of mind in which every element of the DA’s proof will be treated with skepticism.  Bill gets an “A” for the effort.

 

But like all trial lawyers, Bill Bu Bois is constrained by the firm bones of the evidence and by every word that comes from the client’s mouth on the witness stand.  In my experience, when the lay of the evidence is such that the defense claims, “he was framed”, the jury will demand more than a mere technical possibility that such a thing took place.  And like everything else in this case, the absence of a corpse cuts both ways.

 

The Reiser boy – his name is Rory we are told - is to testify Tuesday.  Now that will be high theater.

 

As promised, I’ll try to provide an overview of the expected evidence on Monday’s post.  So far it still very much looks to me that the tipping point in this case will be the intangible matter of the apparent character of the key players.

 

Many case details can be found on reporter Henry Lee’s blog at www.sfgate.com/ZBLS .

 

 

Five

 

THE REISER TRIAL PRE-EVIDENCE PHASE SUMMARY

A STRONG CASE ARGUES ITSELF.

You Be the Judge

 

A strong case argues itself.  This is another way of saying that facts speak louder than lawyers. If not, the lawyers are in trouble.

 

Here are the elements of proof we are led to expect that the Reiser jury will hear starting tomorrow in the murder trial against Hans for allegedly killing the (still missing, “bodiless”) Nina.

 

Hans, a Linux software guru, famous enough in his field that WIRED is following the trial, and Nina, a young Russian woman, were married in her home country in 1999. 

Flash forward to 2006.  The cast of characters (minus Nina’s mother) now lives in the Bay Area, USA. There are two children, now the objects of dispute in a bitter divorce that Nina initiated in 2004 because hubby was too distant. There are charges of about $12,000 unpaid child support; the custody struggle between the parents is ongoing.  Mr. Reiser is living with his mother in Oakland.  Nina Reiser is living with the kids in Oakland as well as reportedly enjoying the romantic attentions of Sean, her loosely wrapped paramour. 

 

Nina has just gotten Russian citizenship for the two children.

 

On or about Friday, September 1, Hans and Nina bitterly argue – with the help of lawyers – over how their kids’ time would be sent on the coming Labor Day Weekend. An agreement is reached that the time would be split between the parents. 

On Sunday, September 3, 2006, Nina takes the children with her to the Berkeley Bowl grocery store, where she is caught on the security camera.  She places two very brief cell calls to Hans, then shows up at Hans’ place (actually his mother’s home, the so called “Exeter house”) to drop off the children, presumably per the agreement reached on Friday.

 

Throughout, Nina is driving her 2001 Honda Odyssey Van.

 

The Reiser’s son, Rory - age about 6 - once said that he saw Mom depart after he and his sister were dropped off, but that is now in dispute.  Rory also once said that he had a dream or a vision of someone carrying a large, heavy object down the stairs the night of September 3. That, too, is in dispute.

 

Hans’ mother was not home at the Exeter house on September 3.  She is at the “Burning Man” festival in Nevada.

 

What is not in dispute is that Nina has not been reported seen alive since.  

It is not until Tuesday, September 5 that someone reports Nina missing. Nina’s friend Ellen, calls the police after picking up the two kids at school, apparently around 5:30, but can’t locate Nina. She calls Hans, tells him that Nina is missing and asks to keep the kids. His reply: Uh uh” (that I take to be a negative). 

 

Then Ellen tells Hans that she knows Nina was at his house Sept 3.  Hans’ reply: “I need to talk with my attorney.” [No kidding!]

 

On that same date, Hans is seen hosing down his driveway at 11 PM.

 

On September 6, Nina’s van is discovered parked on the street about three miles from the Exeter house; this is on a path not consistent with driving directly to her home - about 5 miles from the Exeter place. 

 

This is what police discovered in the Odyssey van:

  • Nina’s cell phone without the battery;
  • The groceries, rotting and in disarray;
  • Nina’s September 1 rent check to her landlord;
  • Nina’s books;
  • Nina’s apparently undisturbed wallet with cash, grocery receipts, drivers license, and so on.
  • No blood, so signs of a robbery or struggle, and
  • No car keys.

 

When Police finally obtain a search warrant, they search the Exeter house September 13 and 14.  There is a floor-to-ceiling post near the front entrance. There are one blood spot & two smears about 3 and ½ feet from the floor.  Most of the blood is ID’d as Nina’s and some of the blood is Hans’.

 

Hans’ car is a Honda CRX.  Because of “battery problems” he also drives Mom’s Honda hybrid. Allegedly Hans’ car is “missing” for some time after suspicion focuses on him but is located by police on September 18 after surveillance and a chase.  It is parked on street.  The front passenger seat is missing; the floorboard is saturated with water.  The socket wrench set used to remove the seat is recovered from the car. Other interesting items recovered included a siphon pump, trash bags, masking tape, paper towels,  a copy of Masterpieces of Murder, and Homicide: A Year on the Killing Streets. [The books were purchased by Hans on September 8.]

 

Traces of Nina’s blood were found in Hans’ car.  It is unclear exactly where in the vehicle the blood was found but the DNA match apparently is solid.

 

When Hans is brought in for a DNA sample, his fanny pack is searched.  He has $9,000 cash and his passport. His cell phone has its battery removed.  He also has a three page memo attacking Nina and the family law courts.

 

WHAT TO MAKE OF THIS

 

I doubt the jury will convict Hans just because he became a bit squirrelly after suspicion focused on him.  But the jury will consider his evasiveness to be incriminating when he appeared to hide his CRX.  So far the defense has done as well as can be expected with this evidence, but the suggestion that Hans pulled the front passenger seat to make a homeless shelter for himself is not likely to fly.  And there is the not insignificant matter of Nina’s blood in all the wrong places.

 

All attention is now on young R….  Direct and cross examination of a key witness that young is difficult at best.  We can assume, however, that the prosecution didn’t go to all the trouble to transport this little boy from Russia to an Oakland, California courtroom to hurt its case.  If I were Bill DuBois, right now, I’d be worried.

 

Six

 

NOVEMBER 12, 2007

THE REISER TRIAL TUESDAY MORNING:

WAITING ..

WAITING FOR LITTLE R...

 

WHY THE “CHARACTER” OF HANS REISER

MAY DECIDE THE CASE

 

 

Most juries, most of the time, would have already concluded that the defendant is “very probably” guilty.  But probably is not beyond a reasonable doubt.  This jury still can acquit. Moreover, the jury has been led to expect a strong defense, and will wait and see...  Meanwhile the “giant hole” in the DA’s case remains unfilled.

 

Unless the prosecution locates Nina’s corpse within a geographical range that doesn’t rule out Hans as the killer -

 

- Or -

 

Unless the prosecution comes up with a plausible body disposal method and links Hans to it in some meaningful and reasonable (but not necessarily definitive) way,

 

- Then –

 

The case as outlined so far will probably be enough (if not countered by the defense) to persuade most jurors of Hans’ guilt. I said most, but not all, leaving a mistrial the most likely outcome.

 

In other words, in spite of the DA’s strong opening and assuming all that Mr. Hora has promised to prove so far materializes perfectly in front of the jurors eyes, the case remains balanced on a knife’s edge because of the missing link:

 

Hans is still not tied strongly enough to an unlawful death.

 

The character of the defendant is the one intangible factor that could turn the case either way.  We’ve all seen movies where the culprit’s sinister demeanor removes all doubt of guilt and others where the accused’s transparent and guileless sincerity ensures an acquittal in spite of the evidence.  These fictional scenarios are replicated in courtrooms every day.

 

Mr. DuBois is undoubtedly worried about the defense case because of his client’s “difficult” personality.  I’ve been lead counsel in cases or otherwise directly observed similar problem clients countless times over three decades..  It is very appropriate for the defense to worry at this stage.  Defense overconfidence is almost always fatal.  Defense bravado - for public consumption - is almost always a good idea.

 

We can be sure that the absence of a dead body surely has given the DA sleepless nights for months.  The defense and prosecution will both remain worried until after R…. gets off the witness stand.  For example, if young R... were to explain that he really did not see Mom leave the house on September 3 – but that Dad just told him to say that – The defense is going to start sweating blood.  But if R... even hedges or waffles about whether he’s seen Mommy after Sept 3, then the sweat will be on the other foot, so to speak.

 

As long as the case remains balanced on a knife’s edge, the defense will have one big problem to worry about.  It is whether and to what extent the jury will begin to see Hans as someone who - (a) would want to kill Nina and (b) was emotionally and physically capable of killing Nina.  This is the essence of the character question.

 

So far we’ve heard no direct character evidence about this defendant for a good legal reason (other than the obvious on – that there may not be any). 

 

The DA cannot normally produce such evidence because of the “undue prejudice” such negative character evidence can engender.  But the defense is free to introduce positive character evidence about the accused, if any exists.  The pitfall is that, the defense having opened the door to the defendant’s character, the DA would then be entitled to walk through the same door with any available derogatory information about Hans. Of course we all remain in the dark about what character evidence may or may not be available to either side. 

 

If this jury could be persuaded from credible character evidence (presumably not from Hans’ “Burning Man” fan mother – all mothers are expected to defend their sons) that he is essentially harmless and non-violent, the defense would probably win.  But something tells me (i.e., reading between DuBois’ lines) that benign character evidence of this kind may never surface. But what an interesting trial it would make if it did.

In the meantime, this jury - like all criminal juries in my experience - will be watching the defendant carefully.

 

 

Seven

 

NOVEMBER 13, 2007

DAMAGE?

 

  

DAMAGE ASSESSMENT

 

 

This is just a snapshot of the impact of one witness during testimony.

The Reiser son, now 8 years old, testified today after establishing his competence (most eight year old kids can qualify to testify, but unlike adults, they are not presumed competent).

 

Young R… unequivocally stated that he had no contact with Mom since the day she disappeared; there were no letters, phone calls, nothing whatever from her. This alone was worth the trip for the prosecution because it will make it next to impossible to persuade the jury that Nina is alive and well in Russia.

 

After a colloquy about unanswered correspondence with Dad, R… was allowed to recount his vision, dream or recollection (not at all clear which) that on the night Mom vanished Dad was carrying a heavy bag down the stairs that might have contained Mom.

 

I can’t imagine the initial impact this would have had on the jury.

 

I have to assume that DuBois objected to this testimony (if it was a dream it is clearly inadmissible, for example) but made his arguments in chambers outside the presence of the jury.  If, after cross examination, it develops that the stairs testimony was just a dream I would expect the defense to request a strong admonitory instruction and – failing that – a mistrial.  I can only infer from the ruling that Judge Goodman thinks the account will qualify as the recollection of a real event.

 

Cross examination of a sympathetic eight year old is full of many traps.  The last thing that the defense wants to do is to elicit even more damaging testimony or – by engaging in a heavy cross examination that doesn’t shake the witness – to strengthen the testimony against the defendant. 

 

But DuBois can’t just let it go. 

 

My next post will not be until late Thursday or early Friday, after some of the dust has settled.

 

Eight

 

[Early Thursday…]

 

A Defense Nightmare

 

This morning, defense attorney Bill DuBois asked the eight year old son of Han Reiser about the boy’s account that on the day of Mom’s disappearance he was disturbed by the image of Dad carrying “something big” down the stairs in a bag.  He asked whether the boy was dreaming.  [Defense cross examination handbook, Rule One: never ask a question for which you do not already know the answer.]  The answer was a defense nightmare – “I was not asleep”.

 

This jury obviously likes the Reiser boy.  DuBois is now in the unfortunate position that, having asked for it, he must now devote the rest of the defense case to discrediting the answer.  Recall that the DA, wisely, did not portray this eight year old witness as necessarily having a perfect grasp of events.  As of this morning’s ‘nightmare’ question and answer, the defense is now in the unenviable position of having made things worse.

My analysis will continue...

 

Nine

 

[Later on Thursday…]

 

NOVEMBER 15, 2007   

DAMAGE MITIGATION

 

Bill DuBois has concluded his cross examination of R…, Reiser’s son. 

 

A redirect examination by the DA was followed by a testy colloquy between client and the court (Mr. Reiser is complaining about the social workers and the prospect that his son will now be whisked away to Russia).  

 

The court has adjourned until November 26 (the Monday after Thanksgiving).

 

POINT, COUNTERPOINT

 

As the dust begins to settle, the defense has made two counterpoints: 

(1)   That Grandma did tell the boy that Dad did something bad to Mom. This introduces a bias that DuBois will argue has influenced the boy’s current account.

(2)   That the boy now remembers that Mom really did exit the house – before that “something big” on the staircase incident.

 

 DuBois: “You remember you saw your mom go up into the street?”

“Yes.”

But on redirect, the DA partially rehabilitated the witness.

Hora: “Do you remember whether your mom even left after she gave you a hug?”

Witness: “No….  She left.”

“How do you know?”

“What can she do?”

“What do you mean by that?”

“No one stays in a house if they say goodbye.”

“Do you remember your mom saying goodbye?’

“Yes.”

“So you think if she said goodbye, she must have left?”

“Yes.”

 

BOTTOM LINE

 

The defense is worse off that it would have been had the boy not testified.  The prosecution still has that, “But how did Hans dispose of the body?” hole to fill.

 

It will be interesting what specific theory the DA chooses to argue now.  Was the boy mistaken about Mom leaving? Or will he argue that Hans went after her?  Did the assault happen in or near the doorway? How did the blood get deposited on that pole just inside the house? 

 

I suspect that the jury wants to believe R… in spite of his age and the elements of confusion.  This will require them to reconcile the apparent contradictions. 

In argument, the DA will try to map the scene, the car locations and the blood spots and generate a plausible sequence of events. 

 

[][][]

 

Trying these cases is a drain on the lawyers.  I know, having been there.  I’d not begrudge anyone a Thanksgiving break…

 

Happy Thanksgiving to all…..

 

 

11-16-07

FRIDAY

THE HANS REISER MURDER TRIAL IS IN RECESS UNTIL NOVEMBER 26.

 

Here are some additional thoughts.

 

Mr. Reiser, born in December 1963, is a genius; he was involved in the development of Linux, the open source operating system, and he has created two file systems (ReiserFS and Reiser4) for that increasingly popular alternative to Microsoft-based operating systems and software.  Hans Reiser is famous in certain circles. His company, Namesys Inc, is soldiering on in his absence, but there are rumors that it may be sold to help defray its founder’s growing legal expenses. 

 

Reiser was working in Russia when he met a young medical student, Nina, whom he married there.  The Reisers had two children, the boy, R…, and his younger sister, N…… 

 

The marriage ended bitterly (no final divorce has yet been entered), and there have been struggles with support and custody.  According to family law sources, Nina obtained a temporary restraining order against Hans in 2004, after accusing him of ‘pushing’ her; he later agreed to a one year, no harassment order.

 

Reportedly Nina once dated one of Reiser’s colleagues, one Sean Sturgeon who reportedly has confessed to several murders, but emphatically not that of Nina.

One of the continuing mysteries surrounding the current case is why Reiser’s lawyer has not mentioned this strange character in open court.  I must assume that DuBois has been ordered not to do so, and that – for reasons best known to the authorities and the parties – Mr. Sturgeon has been ruled out as a suspect.

 

The presence of at least one loosely wrapped colleague of Mr. Reiser in this story raises a question.  So far, the DA has not yet articulated a single theory to explain how the defendant has eluded every attempt to uncover Nina’s body. Therefore I must ask:  

 

DID THE KILLER HAVE ANY HELP?

 

11-24-07

REISER’S TEARS

 

The Hans Reiser murder trial resumes tomorrow (Monday).

 

Among the various reports of the last session, we can glean several additional tidbits, two (or one) of them are possibly significant.

 

ONE

 

Grandma and other members of young R…’s Russian family did indeed try to influence his mind, firmly planting the notion that Dad may well have killed Mom.  Evidently the boy was looking on when a family member surfed the net for stories about the murder case. 

From my vantage point, this information will have less impact than the defense hopes, if only because jurors will have concluded – as did the authorities – that a disappearance of this kind is more likely than not to be the result of foul play and that the husband is the most likely culprit. 

Just as the jurors are keeping an open mind about the ultimate question – at least for now - they are not getting the picture of a son who is unreasonably convinced of Dad’s guilt, just very worried.  

From the prosecution’s perspective, the whole discussion tends to undercut the defense theory that Nina is hiding somewhere, yet has made no effort to contact her children. Few, if any, grandparents could get away with manufacturing the faux murder of a living mother and successfully hide the information that she is still alive from both of her children.  Even neglectful moms develop anguish over this kind of separation.  I suspect Nina could have avoided her own extradition to the states by coming clean. Once in Russia with her kids, Nina would have little to gain and much to lose by attempting to frame Hans.

It is R….’s obvious intelligence that makes Nina’s permanent disappearance more plausible.  If people were trying to hide Mom from him, it is very likely he’d pick up on it.

 

TWO

 

After cross examination of his son and when the session was over (and presumably the moment when Hans may never see his son again) courtroom observers report that he was crying.  At last the jury might have noticed some evidence of humanity. 

A cautionary note: When the (now convicted) murderer Scott Peterson was seen looking through a catalogue that contained pictures of outdoor clothing for his unborn son (the one who died in utero along with Scott’s wife) he also wept; this was a rare display of human emotion. 

Anger over child custody (especially when Nina obtained Russian citizenship for the two children about two months before the murder) is a strong motive for homicide.

Over the next several days, the prosecution needs to create a tight chronology, one that would allow Hans enough time to have killed Nina and disposed of her remains.  After a full year, this jury will expect to be shown at least one plausible body disposal scenario.  Watch for mention of a certain out-of-town storage unit…

 

To be continued….

 

 

Posted comments

 

I think it is wrong to compare Hans to Petersen.

 

Petersen was whipping for the unborn son he killed.

 

Hans - for the son that he never harmed, that he loves. Son that was illegally taken away from him and from the country. Son that is being brainwashed by hateful people.

 

Why no one is asking Child protecting service to stop that injustice? Kid wasn’t taken out of country legally. Grandmother should be charged, and kids should stay in US.

Judge is brushing off Hans pleads; it is ridicules, they simply just trying to break person who is already not in stable peace of mind. No one has right to assume that he is guilty and because of that deprive him of his parental rights.

 

Posted by: tanya | November 27, 2007 10:45 AM

 

Apparently, Reiser tried to speak out, at one point during the trial, about the fact his kids were being taken away improperly, and Judge Goodman got really abusive towards him, supposedly saying he was paranoid and expressing he would be in trouble if he talked about it more.

But as far as I can tell from any press coverage, Goodman did not address the fundamental issue, said something about just being a little criminal court judge, the quote is utterly fatuous, and that was that.

.

Posted by: Steve White | December 4, 2007 07:40 AM

 

11-26-07

Monday at the Reiser Murder Trial 

AN INCH FORWARD, A QUARTER INCH BACK

 

Marnie Hunter, a fellow parent at the Montessori school where Nina also volunteered to help, today told the jury that Nina had volunteered to help at the school for three years; that she was a devoted parent; that she was loved by her children and that, in this witness’s opinion, Nina never would have abandoned them. 

 

The defense attempted to establish the dubious character of Nina’s putative boyfriend, Sean, but the witness (Ms. Hunter) knew nothing about his supposed ‘sadomasochism’.  If Bill DuBois produces no evidence on the point, he will have lost credibility; therefore I assume that there is some factual basis for the defense question, and that the jury will hear more about Mr. Sturgeon later.  If not, the defense will be in trouble.

 

 Ms. Hunter was asked about the issues in the Reiser divorce.  Unsurprisingly they centered on child custody and money.   Nina complained that Hans permitted the kids to watch violent movies and play violent video games.

 

I assume that this is a fairly sophisticated jury.  Few if any of them will be surprised by the elements of dispute in the divorce, or conclude that Hans is more likely to be guilty because of his taste in movies and games, or that Nina is more likely to be alive, having tried to frame her husband for a murder that never happened, just because she has fooled around with a bad guy boyfriend.

But – and this is the takeaway point from today’s session – almost no one on the jury will believe (from the evidence so far) that Nina was capable of feigning her own murder and abandoning her children for an entire year. 

 

By now, I suspect that most members of the jury are operating on the working assumption that Nina was a victim of violence, and they are actively wondering whether husband Hans was capable of killing her, and whether they will ever hear any evidence tying Hans to the disposal of her body. 

 

That ‘gaping hole’ remains.

 

11-27-07

THE REISER TRIAL: TUESDAY WAS BICKER DAY

 

Today, the jury suffered though direct and cross examination of the divorce attorney, Shelly Gordon, who represented Nina and (surprise) had a less than favorable opinion of Hans. 

This testimony must have been as dispiriting as looking at autopsy photos (no- there aren’t any), while far less relevant to the merits.  Everyone already knows that it was a bitter divorce.

The emerging picture is that Hans was a controlling personality (as if the jury hasn’t already detected that from the defendant’s courtroom behavior) and that he had a ‘myopic focus’ on things. 

 

A testifying lawyer is often a nightmare witness and DuBois evidenced his frustration with Ms. Gordon’s run-on answers.  At one point, DuBois tipped his hand by complaining that attorney Gordon was ‘trying to put in information and material that we’ve moved to exclude.’ That could only be a reference to Gordon’s negative assessment of the defendant’s character.  Recall that a defendant’s character is not in issue unless the defense decides to rely on character as evidence of innocence.  The couple’s marital dispute is relevant to motive, however, and some character evidence is allowed to slip in for that limited purpose -- but not to show that the accused had a predisposition to kill, for example.

 

At one point, DuBois was rebuked by the judge: ‘…if you ask a question and you don’t like the answer, it’s not her fault’.  This defines a bad day for the defense.  But in truth little harm was done as long as the gaping hole remains.

Much more to come…

 

 

11-28-07

WEDNESDAY AT THE REISER MURDER TRIAL ---

ONE MORE NAIL /and/or/

IS THE DEFENSE RUNNING THE WRONG PLAY?

 

The Supervisor

 

Alameda County Supervisor Gail Steele, a dedicated public servant, the kind who conscientiously answers and even acts on her constituents’ letters and complaints, was a prosecution witness today.  It seems that Hans Reiser contacted her repeatedly – even though she was outside his Oakland district – for help in correcting the perceived abuses in the child custody system of the county (something the county Board of Supervisors can do little to change).  Steele, conscientious to a fault, listened patiently and Hans donated to her campaign.

This did nothing significant to affect the balance of the case.  An aggrieved father may or may not be a homicidal nut, but complaining to an elected official cuts neither way on that issue. 

There was some suggestion that Hans’ calls and emails to Steele’s office intensified just before Nina’s disappearance (and presumably slacked off immediately thereafter), but the chronology and circumstances are probably too fuzzy for the DA to make much of it.

 

Loving Mommy

 

Later this afternoon the jury heard from Ron Zeno who runs something called ‘Safe Exchange’ a place where estranged parents pick up and leave their children.  Though innocuous, I suppose it has a sort of Berlin Wall flavor in a murder case.  Nina and Hans used Safe Exchange a  lot, apparently, and the owner, Ron, was clearly on Nina’s side.  The children always ran to her and, in his opinion, she would never abandon them.  This sort of thing is just opinion, of course, but it the kind of opinion that juries tend to trust because it accords with common sense and ordinary experience. 

 

PS

Really --- Is The Defense Committed to the Wrong Theory?

 

Again, I am increasingly of the opinion that the defense is losing on the ‘mom abandoned kids to vindictively frame dad’ theory.  It just isn’t selling. 

 

A much better theory (dangerous because it seems to admit that there may well have been a murder) would be the following common sense approach: 

 

We all know that Oakland has a large and growing murder rate, and that almost all of the killings are by thugs, not well off software geniuses.  If you heard - without more - that Nina’s car was found but she was missing, what would be the first thing you’d think?  That some Oakland thug was responsible. And statistics would be on your side.  

 

But that promising line of argument appears to have been rejected, in advance, by the defense.  As I said at the outset, Hans Reiser is very much in charge of the defense. 

 

And that may be the problem….

 

 

11-29-07

Reiser on Trial - Drip, drip, drip...

REISER THURSDAY –

CUMULATIVE TESTIMONY, LOOSE ENDS, AND ONE ZINGER

 

In ascending order of impact (not in order of time) the testimony was as follows:

 

Ho hum level…

 

An Alameda County Child Support officer confirms that Hans now owes more than $30k in child support.

 

Thanks, but we heard that once already….

 

A teacher at the children’s school testified that, in her opinion, Nina would not abandon her children – ‘Those kids were her life.’

 

A loose end tied up….

 

A Barnes & Noble employee, store records and the store camera corroborated that Hans bought the two ‘murder books’ (police procedurals about murder investigations) that were found among his effects.  The sale was on September 8, 2006. [Recall that Nina went missing on September 3.]

Reiser paid cash.

 

Obsessive Dad testimony…

 

About a year before the day Nina went missing, Hans complained by phone to the county child abuse hotline.  He claimed that Nina was suffering from a bizarre mental illness that caused her to complain about the children’s mental health (this was based on her assertion that too many violent video games had warped their minds), all to get attention for Nina.  This was – according to Hans – evidence that Nina suffered from ‘Munchausen by Proxy Syndrome’.  [Only a software guru with time on his hands could come up with that one!] He also complained that his son’s ear infection was neglected by Nina. One imagines that complaints like this are common during child custody battles.  Again, the jury is too sophisticated to assume that Hans was homicidal based on this stuff alone.

 

But Hans tendency to obsess does seem to be recurring theme….

 

ZING!

 

Former O.P.D. officer, Ben Denson, who saw the couple frequently during child exchanges at the police station said -

 

“He never put his hands on her but, you know, I could tell by the way he was looking at her, there was menace in his eyes…It was very hostile….I told her, ‘You need to get yourself a gun.’’

 

That had to hurt.

 

DuBois did the standard cross examination – designed to remind the jury that a police witness is probably pro-prosecution and so on, but the damage was done.  Most members of the jury will not believe that former officer Denson was imagining things or making things up just to support the DA’s case. 

 

But they will be sophisticated enough not to convict someone just because of inter-spousal hostility. 

 

However, the defense is gradually losing ground here on the character issue:

 

Nina is looking (at the moment) less and less like someone who would have voluntarily vanished from her children’s lives for a whole year, and --

 

Hans – while not yet portrayed as the homicidal character the DA would prefer – is looking just a bit more dangerous.

 

Faced with positive character evidence about Nina, DuBois asked whether it would change the witness’s favorable opinion if the witness learned that Nina was responsible for grand theft.  An objection to the defense question was sustained. 

 

What was going on?

 

There is – as of now - no evidence of Nina stealing anything, and – at least from the judge’s point of view – there may not be any.  Counsel may not ask a witness about ‘facts not in evidence’ especially if there are never going to come in; to rule otherwise would allow a back door to inadmissible evidence or non-evidence. 

 

But it could be proper to ask a question like this if DuBois had good reason to believe that such evidence will later be introduced in the trial.  I assume that if the court had been made aware of such a pending defense witness, the ruling would likely have been different, e.g. – ‘I will allow the question subject to tying it in later.  If not I will then entertain a motion to strike.’ 

 

My guess:  The defense has little or no credible evidence of the grand theft incident(s), other than the possible testimony of Hans, himself. Also: DuBois probably thinks he is better off having floated the ‘Nina is a thief’ suggestion in front of the witness (knowing it will prompt an objection) instead of risking some clever riposte by the witness, such as:  ‘Even if it turns out that Nina Reiser has stolen money, it doesn’t change my opinion about Nina’s love for her kids, the dynamic between them,’ etc, etc.

 

The takeaway point:  When an experienced police officer warns a wife to get a gun after taking a good look at hubby, and when the wife later turns up missing under suspicious circumstances, the warning takes on an unforgettable, almost nightmarish quality.  The bad images are accumulating.

 

 

11-29-07

Even Paranoids?

 

Addendum at 6:30 PM Pacific.

 

The last witness of the day was the school principal.  Apparently some teachers were concerned that R…, the Reiser son, was too preoccupied with ‘violent images’ and ‘robots’ (sounds like those dreaded video games to me).  Hans apparently countered by saying that the boy was normal but that Mom was connected to the KGB, and was a good liar.

 

One wonders whether DuBois – who has darkly hinted at these shadowy Russian connections to the press – has anything more concrete to go on than his client’s version.  Sometimes the line between paranoia and real enemies can be thin indeed.  The KGB theory would be somewhat more persuasive if Hans had ended up in some dumpster.  Mess with the rogue remnants of the long disbanded KGB and they’ll frame you for killing your wife?  Naaa.

 

The courtroom is busy with other matters on Friday and Reiser’s trial resumes Monday.

Monday

 

12-03-07

 

 

12-5-07

MONDAY...

 

Mrs. Palmer, Hans Reiser’s mother, was called by the prosecution today. Both sides got something from her testimony. 

  

I will post a review and analysis Wednesday afternoon covering all three days.

Worry not.  The truth is out there.... 

 

The Reiser Trial – What to watch for?

The Critical Time Line: 

 

Recall that Nina is last seen alive (by anyone except her killer) at approximately 3:00 PM on September 3, Sunday of the Labor Day weekend.  We know it was some time after 2:02 PM because it was then that she called Hans, probably to say she was running late to deliver the kids.  In the mid afternoon Nina does leave both kids with Hans per their agreement.

Flash forward.  Hans - or his mother – takes the kids to school in Oakland on September 5,

 

Tuesday. Nina’s friend picks up the kids in Oakland at 5:30 PM., by prior arrangement with Nina or because she hasn’t materialized.  Either way, Nina is now missing and the police get involved. 

 

What happened between 3 PM Sunday, September 3 and the time Hans’ mother returned from that weekend?  What did Hans’ mother observe from the point she arrived?

 

The jury will soon be trying to imagine a scenario in which Hans’s could murder Nina out of sight of any witness, then dispose of the body in the hours following 3 PM September 3. 

 

I think the DA may be able to argue that Hans accomplished two things that weekend: (1) He put Nina’s body in the passenger seat of ‘his’ car (a Honda CRX registered to his mother, Mrs. Palmer) and drove to a secluded place, where he temporarily left it hidden.  (2) Then he moved Nina’s car to the place where it was eventually found. (3) He disposed of the body somewhere. (4) He washed his car in order to remove all Nina traces (the corpse might have begun to deteriorate by then). Days later, as police attention on him intensified, Hans removed and disposed of the CRX passenger seat. 

 

Will this Sell?

 

How long would all that take?  How much ‘alone’ time did Hans have?  It is very hard to conceal a human corpse for more than 12 hours without generating horrendous odors.

 

Keeping the timeline in mind as a backdrop, let’s review the last three days of testimony.

 

THREE DAYS

 

Monday, 12-3

Han’s mother, Beverly Palmer, testified that she returned to her home (having been at the ‘Burning Man’ festival in Nevada) on Tuesday, September 5th.  Hans said nothing about Nina.  On Wednesday the 6th, after she had rested, Hans told her that Nina was missing. ‘He didn’t seem to know anything about it,’ she testified.

 

The Honda CRX (owned by Mom but usually driven by Hans) was missing.

 

Mrs. Palmer’s favorite car is a Honda hybrid. Hans borrowed her favorite car – sometime around Sept. 6-8  - leaving Mom ‘stranded, without any car.’ Hans refused to reveal where her favorite car had been taken. Apparently Mom rented a car, assuming that Hans’ car (her CRX) wasn’t working. 

On September 10, Hans called Mom from San Leandro, requesting a ride. Ever resourceful, Mrs. Palmer used the occasion to search for her favorite car; and she found the hybrid parked on a side street.  Mom then hid her car from Hans!

 

The CRX was recovered by police (who were tailing Hans) on September 18.  The passenger seat was missing.  Mom can’t really remember whether she ever noticed the missing seat at any pertinent time because she rarely drove it.

 

The headline of the day was Mrs. Palmer’s testimony that Nina had left her kids with other caretakers for a month at a time – once with a nanny and once with her own parents.  The defense will argue that Nina was capable of abandoning her children for a full year. The jury, in my opinion, will not buy it.

 

Tuesday

 

Mrs. Palmer answered a phone call from Hans about three weeks after Nina ‘vanished’.  The conversation was wiretapped.  Hans told Mom that his wife was a liar, loose with money, that she was a danger to her children, that she had kicked him once.  After his tirade, Mrs. Palmer repeatedly asked whether she ‘deserved’ what had happened to her and repeatedly Hans avoided agreeing with her.  On cross examination, DuBois got Mom to say that Hans was not – in her opinion – a violent person.

 

Forensic alert:  The defense has now fully opened the issue of whether the defendant has a propensity for violence.  A door has opened—I wonder if the DA has anything to drive through it.

But the defense did make headway with Mom on the blood issue.  According to her, the post in the front room where traces of blood identified to both Nina and Hans were recovered was bumped by most everyone at sometime.  Moreover, the smudge from which the blood traces were recovered looked the same before she left town for Nevada and after her return.  Nina’s blood traces recovered from a sleeping bag in the CRX could be explained, it was suggested during her cross examination by DuBois, because the couple had shared the bag, and Nina might have experienced a nosebleed.

 

Forensic Note: Expect additional blood evidence.

 

Wednesday

 

Today, the jury heard sympathetic testimony from Nina’s boyfriend, Anthony Zografos, a engineer with a doctorate from UCB who had spent the day with Nina and the kids in Alameda on September 2. He last saw her on Sept. 3, 2006, when he dropped at her home. The same day he got a text message from Nina.  The time was at 12:55 P.M. ‘Love you lots’ her message said.  The jury saw home movies of the couple and Nina’s children. The DA asked  Anthony whether Nina just vanish and abandon her kids: ‘Absolutely not.’  The jury, in my opinion, does not think so either…

 

COMMENT

 

During these three days, a stage is being set for a performance.  In the end it will be Hans himself who pulls this case out or drags it down. 

As additional evidence comes in, keep the timeline in mind.  What happened between the afternoon of September 3 and the time that Mrs. Palmer, having returned the previous day, awoke to learn that her daughter in law was missing? As matters stand, the noose of suspicion had closed slightly but many defendants could still slip through…

 

ONE MORE THING...

 

One more thing about the emerging timeline:  Yesterday, it was revealed that Nina’s recovered cellphone number (recall that it was found in her car - battery removed) had several unanswered messages from friends.  For this, the jury will reasonably draw the inference that she was out of the picture sometime on the afternoon of September 3, the day she said goodbye to her kids and happily text messaged her boyfriend.

 

Boyfriend’s testimony wraps up today. 

 

 

 

DECEMBER 06, 2007

THE REISER MURDER TRIAL

THE DEFENSE INFLICTS ITS FIRST SIGNIFICANT DAMAGE

 

As the session ended on Wednesday, the jury listened to about 30 minutes of messages in Nina’s cell.  Her last messages included calls from Boyfriend Zografos but nothing from Hans.  There was nothing further to clarify or refine the timeline because, as we all know, even living people can take a day or so to get around to answering their messages.

 

Thursday started predictably enough.  We learned, for example, that after Nina was missing, the boyfriend Zografos passed out 5,000 fliers and arranged for 18 billboards - Reiser evidently didn’t help.  Given the acrimony between the two, that isn’t surprising.

 

The Bill DuBois conducted a very effective cross examination. IT began with--

 

THE SET UP

DuBois: ‘You and Nina had a relationship of absolute trust, you would say?’.

Boyfriend: ‘I would say that.’

DuBois: ‘You trusted Nina, right?’

Boyfriend: ‘I did.’

DuBois: ‘You think she was looking for other men when she was dating you?’

Boyfriend: ‘I know she wasn’t.’

DuBois: ‘You say that with some authority.’

Boyfriend: ‘I knew Nina well.’

 

THE TOYING

First, DuBois pressed about Zografos last message – ‘Everything can be fixed.’ The defense asked a line of questions suggesting that the couple was having trouble and that Nina was in financial distress.  Zografos denied this.

Then he began a line of questions about Zografos knowing that Nina had borrowed money from her ex lover, Sean Sturgeon.  Evidently he did know.  Dubois asked whether she had asked Sean for money even after she was no longer seeing the guy. Zografos knew that, too.

Then 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.  We can infer that this sort of derogatory information about the ex boyfriend has been ruled out of bounds.  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.

Earlier I speculated that Sturgeon must have an iron clad alibi or have been ruled out a suspect for equally sound reasons.  If this is not the case, then we can expect the defense to go even further with this line.

 

THE SCORE

 

Finally 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 seed of doubt has been sown.  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?’  [If Nina herself was not listed, that is a fact I’d expect the DA to address.] ‘Is it possible that there was some trouble with the ex boyfriend?’

 

Once these questions are released, they just don’t fade away. 

 

I am still persuaded that this jury will not believe that Nina abandoned her kids and framed Hans. But they just might be persuaded that she was attacked by someone other than Hans, now that the theory begins to take more plausible shape   To prevail, the DA will need to firmly knock down each of these ghost assailant theories. 

 

In a case this closely balanced it won’t take much to turn several jurors into the reasonable doubt column. 

 

But all this talk is premature.  All too often has a defense attorney seemed to make great headway in cross examination, only to have the defense case melt away when additional evidence piles on.  And there is no reasonable doubt defense case so sturdy that a single defendant on the witness can’t deliver a conviction.

 

Keep THE KEY things in mind: The timeline, the specific locations of all the identified blood and Hans’ behavior.

 

The trial resumes Monday.

 

DECEMBER 07, 2007

FOLLOWING THE REISER TRIAL - SOME LINKS

 

My own analysis of this ongoing trial is informed by knowing the courtroom, the local criminal trial scene, the judge, and many of the players from long professional contact.  But like the rest of us, I can’t afford the time to actually be there.

 

Here are some good sources:

 

  • The S F Gate / San Francisco Chronicle site: Start at  www.sfgate.com   then navigate via the Search box to ‘Reiser’ and ‘Reiser blog’.  The series of print articles are written by reporter Henry Lee.  There is also a blog, with in-court reporting closer to real time.  That link is  www.sfgate.com/ZBLS .

 

  • WIRED Magazine. Start www.wired.com/  then navigate to the Search box, search blogs under  ‘Reiser’ and you’ll find David Kravets’ excellent articles, complete with courtroom drawings by Norman Quebedeau.  These appear much less frequently than the steady Chronicle coverage but they are well worth a browse.

 

  • The Oakland Tribune coverage by reporter Chris Metinko. Start at www.insidebayarea.com/ . In the Search field go to Reiser

 

  • Coverage by Court TV is spotty.  Go to http://www.courttv.com/home_news/   and search for Reiser.

 

Any other good first hand sources?  Do let me know.

 

DECEMBER 10, 2007

Reiser’s Family Was a Burden?

 

Monday’s testimony will be discussed late Wednesday, along with tomorrow’s.  Today, the jury learned that Hans told one witness that he would be better off without the financial burden of wife and children.  He was wrong....

 

ON CROSS EXAMINATION THE DEFENSE INTRODUCED ‘THE SOCIAL RETARD DEFENSE.’ Stay tuned...

 

December 12, 2007

REISER TRIAL – the week of December 10

 

Has the defense made a crucial mistake?

 

This week’s testimony (Monday & Tuesday) made it evident that the prosecution is working very hard to nail down two things:

  1. That Nina Reiser evidenced no plans to leave the area or her children and
  2. That Hans had a strong motive to get Nina out of his life. 

 

In a sense, the evidence this week was a bit cumulative but that is the point: DA Hora needs to change the psychological dynamic of the case from ‘I wonder if Hans did it?’ to ‘I wonder how Hans did it?’  This kind of character evidence - Nina as the loving Mom and Hans as the controlling, angry husband increasingly oppressed by Nina - has a powerful cumulative psychological effect.   Turning the jury in this way is crucial to the DA’s case because the gaping hole still remains, not so much the absence of a corpse, but the – so far – absence of a good theory about how Hans might have gotten ride of it.

 

With this backdrop, here is a brief review of the salient evidence so far this week:

 

At a Montessori School party, Hans shocked two fellow parents when he said ‘that his family and Nina were a financial burden to him and that he felt he would be fine financially if he did not have to take care of them…He was complaining about Nina.’ The witness opined that ‘it was a strange thing to say. It really stood out to me. I thought it was inappropriate.’ Then that parent’s husband, who also heard Hans vent, added, ‘His tone was kind of vehement. It was not the kind of thing you’d expect to hear at an occasion like this, a casual social occasion.’ No kidding.  And note the thematic link to the police officer’s testimony who advised Nina to get a gun to protect herself from Hans.  The jury will neither forget nor discount this stuff. But they will discount the defense suggestion that all is explained by his client’s social ineptitude, the so called, ‘social retard’ defense.

 

A month before her disappearance, Nina met with a bankruptcy attorney.  She was deep in debt.  One asset was her community property interest in Hans’ company, but her overall position was so bleak that she couldn’t possibly get a ‘fresh start’ without filing.  She told the attorney that she was to start a new job at the end of September.  They discussed whether Hans would do a joint filing with her.  She vanished before the follow-up appointment.

 

Two things are important here:

 

  1. Nina had an interest in Hans’ company and had apparently broached the topic of a joint bankruptcy filing and that he presumably refused.  The jury may conclude that, having built his software company, Hans would deeply resent his to-be-ex-wife interfering with that business in any way, let alone dragging it into bankruptcy court. 

 

  1. Nina has positive expectations for the post-bankruptcy era, starting later in September.  This jury will see the pattern here of a life interrupted by some untoward event, something that happened on September 3.  Other than Hans himself, there are no available witnesses to a marital fight over the bankruptcy issue, but to the extent that the jury is getting a picture of Hans as tightly wound, angry and controlling, one can imagine this dispute drawing blood.

 

This is probably a good time to share my suspicion that the defense has very likely made a huge mistake.  No one can fault Bill DuBois for announcing that his client will take the stand, even though that sets up an expectation that will damage the case if Hans changes his mind. 

 

But the defense seems committed to the increasingly unmarketable notion – a product in part of Hans’ insistence, I’m sure - that Nina and the shadowy KGB Russians are running some kind of disappearance scheme here.  Even if that were actually true (& I doubt that it is), the DA is doing a good job in discrediting the whole theory.  And where does that leave Hans? It leaves the defense effectively unable to pose one or more alternative theories that are much more plausible.

 

For example, it is at least possible that Nina was stalked by kidnappers who thought – erroneously – that she was the wife of a wealthy businessman and that - as the mother of his children - she had some ransom value.  Once they learn the truth, the disappointed kidnappers kill Nina and dispose of her body.  As farfetched as this theory may seem, it needs to be juxtaposed against the jury’s nagging doubts about Hans: Was it even possible for him to have killed Nina and so thoroughly covered his tracts that, after a full year, the corpse has never been found?

 

And there are other possible theories – and all of them have the virtue that they don’t hang on the slender thread of Hans’ KGB conspiracy nonsense.  The only reason that DuBois may have allowed himself to get trapped in a single theory is the insistence of his client.  This brings me back to where my analysis started at the beginning of the case. 

 

The biggest problem with this defense case may turn out to be the defendant himself.

 

 

DECEMBER 13, 2007

TWO BAD DAYS FOR THE DEFENSE IN THE REISER CASE

 

Wednesday, the DA called Nina’s girlfriend Ellen (she was the friend who picked up the children from school when Nina vanished). Her testimony shed light on the timeline and I suspect the effect on the jury was devastating.

 

It seems that, on the day Nina vanished, she was to meet Ellen at 6 PM for dinner, after dropping off the kids with Hans and picking up groceries.  Nina apparently changed her mind, taking the kids with her to Berkeley Bowl before going to Hans. When Nina didn’t show for dinner, Ellen left a message on Nina’s cell phone (now recovered and messages retrieved).  That was 6:30 PM.  When she called Nina again at 9 PM., Nina’s cell was turned off (consistent with having the batteries removed).

 

Ellen picked up the kids at an Oakland elementary School (the kids attended the Montessori School earlier in the day).  This is when she called Hans to ask about Nina. When Ellen told him (with police listening in) that she was last seen at his place, Hans said ‘I need to talk to my lawyer’.  Hans didn’t ask about Nina at all in that conversation.

 

You can be certain that, after hearing this testimony, not one juror is willing to believe that Nina had just decided to abandon her children and flee to Russia, leaving behind her car, wallet, money and driver’s license.

 

DuBois attempted with little success to use his opportunity to cross examine Ellen (she to portray Nina’s relationship with her nice boyfriend (Mr. Zografos) as less than fully trusting, and to draw out derogatory information about the ‘bad’ boyfriend, Mr. Sturgeon.  Neither effort yielded anything materially useful to the defense.

 

Dubois asked Ellen whether she had talked to the Reiser boy about his statement at the preliminary hearing before judge Conger (not before the jury) where he described Mom as having actually left the Exeter house after saying goodbye.  This, of course, is absolutely crucial to the defense, because if Nina got to her car, it becomes difficult to imagine how Hans could have gotten away from the kids, killed her (presumably not in front of the neighbors) and spirited the body away.

 

Ellen couldn’t recall anything like that. But DuBois persisted in the line of questioning, hoping to imprint the matter in the jury’s mind.  This was a high stakes moment in the trial.  It appears that the boy’s prior testimony is not going to be read to the jury, so the defense is stuck with the more ambiguous version he gave in this courtroom. It also appears that Judge Goodman, aware of the high stakes for the defense, had DuBois on a very tight leash.  This was the exchange:

 

Judge Goodman:

“Mr. DuBois, if you comment on the evidence that’s not before the jury one more time, I’m going to find you in contempt… Then DuBois began to refer to the boy’s earlier testimony. [Note the tone.  In friendlier exchanges, the attorneys in Judge Goodman’s court are often addressed by their first names.]

 

Judge Goodman: “

I don’t care what he testified to at this point…I know what you’re doing, and you know what you’re doing, and I don’t appreciate it.’ DuBois tried to respond.

 

Judge Goodman:

“Mr. DuBois, I’m warning you for one more time, and it’s going to cost you money. The objection is sustained.’

 

This was the classic pre-contempt warning, followed by a visit to chambers.

 

Today, the DA called Hans’ neighbor, Jack, a building contractor. He’d been gone on the Labor Day weekend, but when he returned on September 5, he noticed Hans at 10 PM hosing down his driveway. The project took about half an hour.

 

Jack: ‘It was odd, even for Hans. We’re outdoors a lot. We never really see Hans participating in any exterior activities like cleaning or watering. He just comes and goes. I just thought it was kind of strange, especially because I had no idea what he was doing, like ‘Washing the driveway?’ It seemed out of character, that’s all.’

 

It was a hot summer night, but Hans was ‘dressed for winter’ wearing a hunting jacket. Jack did not see Reiser’s CRX on the property that night or the next day.

 

In cross examination, DuBois tried to establish that Jack didn’t like Hans and that Hans was not a good neighbor.  The defense purpose is to later be use this in argument to discredit the witness for bias.  It won’t work.

 

Then the DA called Natalie who was in charge of the children’s after school program on the day Nina picked them up for the last time. Ellen had come by to pick up the kids at 2:30, but Natalie wouldn’t immediately release them.  She called Hans, leaving a message. Hans didn’t 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.

 

The afternoon witness was Mary Jo, the employer in charge of a large, Bay Area nonprofit that had tested, interviewed and ultimately offered Nina a $50,000 a year position with full benefits. Nina accepted on September 1 and was to start on September 21.

 

The defense cross examination attempted to show the limited nature of the background check for new hires.  That line of questioning went nowhere.

 

COMMENTS

 

The jury now knows vividly what it earlier only heard in outline. The cumulative power of this evidence continues to shift the inquiry and focus to – How could Hans have pulled this off?

 

If Hans killed his wife, his behavior at the after school program not long after Nina was last seen alive was consistent with someone who had just realized that he’s ‘solved’ his marital problem only to acquire a new one: What do I do with the body? 

 

When this jury retires to deliberate some time next year, they will ask for a map and a calendar.

 

At this stage in the trial Hans is looking to this jury more and more like the one person who can answer the question: What really happened to Nina?  The jury will probably never buy Hans’ conspiracy defense, leaving his lawyer to develop an effective reasonable doubt argument in spite of his client’s ‘KGB’ theories. 

 

The things that Hans must sell personally, while getting through a long and challenging cross examination are:

  1. Nina left alive and
  2. Here’s why the blood traces were found where they were. 

A serious failure on the witness stand by this defendant could greatly help the prosecution.  But – unless Hans actually confesses – the DA has an evidentiary hole to close. 

 

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?

 

But some of the heavy lifting has already been done.  All members of this jury now understand why Hans would want to kill Nina, and many of them are beginning to get used to the idea that he was actually emotionally capable of doing it.

 

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TO BE CONTINUED…

 

JBG:jbg