ALL POSTS IN THE RISER CASE, PART II
January & February 2008 in Chronological Order
FULL ARTICLE -- PRINT VERSION http://jaygaskill.com/GURUonTRIAL.htm
Hans Reiser and his wife Nina were embroiled in divorce proceedings on the Labor Day weekend in 2006. Their marriage bliss 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.
On the Sunday of that weekend
in 2006, Nina dropped off the couple’s two small children with Hans when he was
alone (Hans lived with his mother who was then attending the burning Man
The time was mid afternoon. Nina has never been seen since. Her empty car was discovered later with bags of rotting groceries, intact purse and cell phone from which the battery had been disconnected.
In the absence of a corpus delicti, Mr. Reiser is being tried for the murder of his wife.
After a long holiday recess,
the case is about at its half way point in the
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.
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.
Throughout, Nina is driving her 2001 Honda Odyssey Van.
The Reiser’s son, R… - age about 6 - once said (in evidence now left ambiguous) that he saw Mom depart after he and his sister were dropped off. 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
It was not until Tuesday, September 5 that someone reported Nina missing. Nina’s friend Ellen, called the police after picking up the two kids at school, apparently around , but can’t locate Nina. She called Hans, told him that
Nina is missing and asked him to keep the kids.
His reply: Uh uh” (that I take to be a negative).
Then Ellen told Hans that she knows Nina was at his house Sept 3.
Hans’ reply: “I need to talk with my attorney.”
Go to the full article, “The Case So Far” for more details and a hypothetical “body disposal” timeline. http://jaygaskill.com/GURUonTRIAL.htm .
Waiting for Monday...
Print version -- http://jaygaskill.com/ReiserTimeLine.htm
About That Critical Time Line:
Yesterday’s post referenced a lengthy reintroduction to the Han Reiser case with a newly produced hypothetical time line (What did Hans do & when?). For those of you who have been closely following the case, the timeline follows this abbreviated setting. Brief comments then follow.
Nina was last seen alive (by anyone except her killer) at approximately on September 3, Sunday of the 2006 Labor Day weekend. We know it was some time after 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.
What happened between 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 September 3.
I think the DA may be able to argue that Hans accomplished several things that weekend: (1) He quietly killed his wife. (2) He temporarily put Nina’s body in the passenger seat of “his” car, that Honda CRX. (3) He moved Nina’s car to the place where it was eventually found. (4) He disposed of the body somewhere. (5) He washed his car in order to remove all Nina traces (the corpse might have begun to deteriorate by then). (6) Eventually, as police attention on him intensified, Hans removed and disposed of the CRX passenger seat.
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.
ONE HYPOTHETICAL TIMELINE
I’m indebted to Professor
Maria Chang (political science, university if
two days after Nina’s last visit, on Sept 5, Hans gets a call from his mother
at around ; she has returned from the
Burning Man event in
If – as we will assume for purposes of this hypothetical narrative - that Reiser has killed Nina but hasn’t yet figured out what to do with her remains, Hans knows he must now quickly dispose of the body. And he has but a few hours to accomplish that.
So he drives the CRX somewhere within a 2 to 3 hour perimeter & accomplishes at least a temporary disposal. [I note that this theory would then entail a further attempt to move the body to a more secure location still – say outside the Tahoe area?]
This urgent drive is stressful & exhausting. This theory explains why - when Hans shows up at Mark’s house that night, driving not the CRX but Mom’s hybrid —he is so exhausted that he must lie down on Mark’s couch in the living room to rest before he can drive his mother home.
After his mother goes to bed,
Hans then takes the CRX out onto the driveway to hose
it down – presumably to wash away incriminating evidence. This soaks the car
floor & possibly gets water into the gas tank. That may explain why, on
Sept 10, Hans buys a bottle of Valvoline fuel-dryer
at Kragen Auto in
The jury will probably assume that Hans had not yet removed the passenger seat on Sept 5 when he is seen by neighbor Jack Stabb hosing something in his driveway. [Hans may still think at this early point that he can wash away all the incriminating evidence, but seat fabric can retail biological traces.] The officer who gives Hans a ticket on Sept 12 does not report seeing anything unusual about the car. This is a close call – assuming Hans is the killer. The jury will also likely infer that Hans is so spooked by this encounter that he resolves to not drive the CRX.
Did Hans take – or plan to
take the car to
Hans may well have removed
the passenger seat on Sept 17. That day, he was in
Apparently Hans changed his
mind about renting a locker to store the CRX.
Instead, he rented a U-Haul truck for a one-way trip from
Then he left the car parked
& jogged the 2+ miles back home to
When the CRX was recovered, the police noticed that the passenger seat was missing. It was taken to crime technicians the next morning who eventually found traces of Nina’s blood and that of the defendant.
We can reasonably suspect
(again as we pursue the hypothetical path of a killer seeking to hide evidence)
that Hans’ goal was to move something from somewhere near
I expect the defendant to testify in this case for a simple reason: Assume he says - - as I expect he will say – that he last saw his wife alive when he left the house on September 3, 2006 and he has had no contact with her since.
Then if only one juror chooses believe him, there can be no conviction of murder.
Of course, if Hans is trapped in a lie, all bets are off….
If Hans testifies, you can expect the defense to quickly rest its case. Why? Everything Hans says - - where he disposed of the car seat, what he was doing in Truckee, and so on – is subject to investigation and possible rebuttal. The DA’s investigators will have very little time to do this. Expect the DA to put on some minor rebuttal witnesses to buy time, hoping for a long weekend recess. The investigators will be working overtime.
Consistent with Innocence?
The Reiser trial resumes
THE PICTURE EMERGES SLOWLY
The Han Reiser jury resumed its work today, hearing from a crime scene technician, Bruce Christensen, who showed pictures he took at Hans Reiser’s place about a week after Nina was reported missing – the jury’s attention was drawn to the three large trash cans in the driveway. He also described a visit to the home of Hans’ mother’s friend, Mark, prompting a dispute - out of the jury’s presence – about a communication on the computer screen there.
Additional pictures included bags of cement in the unfinished basement at Hans’ house. We could hear more about the cement later. Remember Hoffa?
After lunch, an OPD Officer described how he and his fellow officer secretly tailed Reiser - who was now thought to be a suspect – on September 8.
Recall that Nina’s girlfriend had called the police on Sept. 6 who overheard a conversation between her and Hans in which Hans abruptly terminated – he needed to see a lawyer.
The officer described a
The same officer picked up the kids at school and took them into protective custody. Why, DuBois asked: The officer was concerned that “The children could be in harm’s way”.
Police also described a later search of Nina’s home where they found contact lens cases, passports for Nina and the kids and $1900 in cash, among other items consistent with items left behind by someone who was not planning to leave the country any time soon.
The jury saw the store video of Nina and the kids picking up the groceries later found rotting in her abandoned car. The time was about .
An officer described the massive but fruitless search of the East Bay Regional park area for Nina’s body.
All too gradually, the jury is being brought into the mindset of the police detectives who have attempted to solve this vexing case. The exact locations and quantities of recovered blood will be crucial in this slowly emerging circumstantial case. Dubois will exploit the “circumstantial evidence rule”, an admonition that each bit of circumstantial evidence can be disregarded if there exists an reasonable explanation consistent with innocence.
In an interview with Chronicle reporter Henry Lee, I pointed out the obvious –
“The problem that the prosecutor is facing is that at some stage leading up to the final argument, the D.A. will have to have a clear theory that includes stuff for which there's no real compelling evidence…A jury isn't going to be satisfied with just open-ended questions. There's got to be some discussion of how he did it and where he put the body.”
As I wrote here over the weekend – Hans probably needs to testify because there are so many things that need explanation if the jury is to entertain a reasonable doubt. But that is the rub:
If Hans testifies, you can expect the defense to quickly rest its case. Why? Everything Hans says - - where he disposed of the car seat, what he was doing in Truckee, and so on – is subject to investigation and possible rebuttal. The DA’s investigators will have very little time to do this. Expect the DA to put on some minor rebuttal witnesses to buy time, hoping for a long weekend recess.
The investigators will be working overtime.
A Leaf and not much More
As of mid-afternoon, today's testimony was a continuation of the themes of yesterday's session -- Hans evasive behavior after he was identified as a suspect & more Berkeley Bowl footage of the kids and Nina. Little impact.
One small clue emerged: When Nina's van was recovered, a suspected cherry tree leaf was stuck to one tire; this was thought by police to be a match with a leaf found in the Honda hybrid that Hans used for a time, suggesting that both cars were in the same area, after Nina was last seen alive. But the leaf identification was not conclusive.
I'll revisit today's testimony when I review tomorrow's.
THE REAL FINAL ARGUMENT
It was between Nina & Hans
S. F. chronicle reporter Henry Lee’s excellent work covering the Reiser trial has momentarily been reallocated to cyberspace – the print edition has been swamped with news about Oakland’s other killings and Mayor Dellums’ pathetic response to date. But you call still access his work on “sfgate.com”, just navigate to “news’ then to “Reiser”.
A fugitive thought before this morning’s session gets underway:
Nina had obtained Russian citizenship for the kids a few weeks before she disappeared. We also know that she kept the necessary passports and $1,900 in cash in her dresser. We also can reasonably infer that she never made it out of the country.
Imagine an argument on
September 3 at the
Nina: I’ve decided to move back home to
Hans: You can’t do that!
Nina: You can’t stop me!
It would have been the couple’s final argument. A few swift, deadly karate blows and Hans trades one problem for another….
Just a thought…
WHAT WAS HANS DOING ON THE NIGHT OF SEPTEMBER 18th?
Late yesterday and earlier today, the jury heard OPD officers describe Reiser’s strange pattern of behavior during his surveillance on a September evening.
The key date was
This incident may be
significant because Hans may not have known he was being watched at the
time. The story begins when an aircraft surveillance officer spotted
Reiser parking his CRX that evening on
An undercover officer on the
ground also apparently witnessed Hans parking the CRX
along the street parallel to Highway 13 in the
Back at the parked CRX, Police approached the empty vehicle, noted the missing seat and planted a tracking device on it. Hans did not return to the vehicle. The car was secured that evening, then later towed to a police lot where technicians would go through it top to bottom.
About this time, a team of
officers spotted Reiser jogging in the dark in the hilly area facing the
oncoming traffic on a different road not far from highway 13. Hans was looking
around and appeared to be carrying something. Racing ahead, the officers
arrived at the
Another surveillance incident took place, ten days later when it was obvious that police were “on Reiser’s case”. But Reiser’s behavior, though evasive, was hardly remarkable.
Yesterday’s contretemps about the “message” on Mark’s computer that police captured was anticlimactic. Hans was railing on the web about the evils of the family court system. We’ve heard that before and it hardly distinguishes him from hundreds of other males caught up in similar marital conflicts.
What this all boils down to is that Hans is very plausibly portrayed as wanting to keep the CRX out of the hands of the police. Coupled with his – so far unexplained - removal of the passenger seat, the washing down incident on the very night Nina vanished and his misrepresentations and evasions to Mom about the vehicle, the jury is being invited to draw the obvious sinister implications.
If he is guilty, Hans has done a fairly clever job of effacing the blood evidence from the CRX. But some identifiable blood - belonging to Nina -remained, even after all that washing andd the seat removal.
Was Hans Reiser too clever by half?
A print version of this piece is posted at http://jaygaskill.com/blood.htm
The court is not in session tomorrow, nor Monday (the MLK holiday). Evidence resumes for just two days next week – 1-22 and 23; then the trial resumes its four day schedule on Monday January 28. A leisurely trial pace is not uncommon in Judge Goodman’s court, who maintains a criminal calendar on Fridays and tends to be solicitous to counsel’s needs during a long trial.
The Out-Lawyer Blog will probably be silent the week of January 28 – I’m out of town - but there will be a post on Monday February 4, summarizing that entire trial week (the one ending on 2-1).
WHAT HAPPENED YESTERDAY
Yesterday, the jury heard
details about the search of Nina’s van and the
As expected, there was no evidence of blood in the minivan. But everything -- from the rotting groceries, the abandoned purse, money, ‘to do list’ and personal effects -- screamed a single message:
Something unexpected and drastic has happened to the driver.
It was a scene reminiscent of one of those Pompey tableaus – a snapshot of a life permanently interrupted.
One thing stands out as a sort of signature. Nina’s cellphone was with her personal effects. But the battery was disconnected. It is hard to imagine why Nina would have done that. A sinister implication is almost inescapable: Someone who did not want the van to be discovered right away, someone who knew about how the authorities can trace the ongoing signal transmitted by a dormant cell phone -- removed the battery.
Someone too clever by half -- that same someone who showed up at the police station later, after evading police surveillance, someone carrying a fanny pack that - when searched – was discovered containing a cell phone with the battery disconnected…
In Reiser’s home
The DA is likely to argue that the cleverest of criminals tends to leave telltale clues, items overlooked. The jury will hear about the forensic DNA tests later, showing a positive match with Nina’s blood, in some cases intriguingly located close to Hans’ blood.
A single mote of blood (thinking of the sleeping bag cover recovered from Hans’ car) might be explained away, but the more blood locations and quantities to explain, the less convincing the putative innocent explanations, and the more probative the sinister ones.
Pending the incoming forensic
evidence, we can take note that Nina did Not live in
Suspect blood traces were
identified and tested from the following locations in the
* A white comforter,
* A mattress,
* A throw pillow,
* A light switch in the same unfinished basement where the jury was shown photos of cement bags,
* The entryway post &
* The living room couch.
Also of interest:
* In the crawl space under
* In a doorway leading into the house: white powder.
We can be confident that Mom didn’t buy the tools kept under the house, and that Hans chose to secrete them where they would not be spotted. Their unused condition, however, makes the point almost, but not quite moot.
I assume that the mystery white powder was tested. The jury is wondering whether it was cement. So am I…
Here are two questions for the experts:
1. How long would it take a dead body, stuffed into a large plastic bag, then covered in cement slurry, to set up?
2. Would the cement and bag be sufficient to suppress the god-awful smell of a decaying corpse?
Assuming, arguendo, that Mr. Reiser used the garage to accomplish this cement treatment, is it not plausible that he would want to wash the driveway carefully, perhaps wearing a long jacket in hot weather to stay as clear as possible?
You can be sure that the hunting jacket described by the neighbor who saw Hans hosing his driveway has been carefully disposed of….
BLOOD NOTES - THE CASE RESUMES
A Print Version of this is now posted at http://jaygaskill.com/BloodNotes.htm
MORE BLOOD NOTES
Today (TUES 1-22), as expected, the jury heard more about the blood. The case will continue tomorrow, then recess ‘till 1-28. Hans’ car contained a sleeping bag cover with traces of blood positively ID’s as Nina’s. I summarize today’s evidence – as of – below.
You may be wondering why the DA would introduce evidence of Han’s skill at the martial arts and at the same time be preparing to introduce all that blood evidence. After all, isn’t a well placed karate blow a form of bloodless killing?
Maybe for Bruce Lee or in the movies. But I suspect that a single “nerd blow”, however expertly placed, would probably not end up instantly killing a young, healthy woman like Nina (assuming, arguendo, that the defendant in this murder case is the guilty party and that he initiated the ultimately fatal assault with a potentially deadly karate blow). This was the same woman, the jury will recall, that was warned by a police officer who had seen Hans “up close and personal” to carry a gun. So I would expect resistance. If Hans’ attacked his wife as soon as the children were preoccupied elsewhere in the house, a struggle would have ensued and blood would have been spilled.
Even the most expert assailant will tend to bleed, too, when the victim fights back, or when falling against something, or even during an aggressive strike – barked knuckles tend to bleed.
Commingled or closely proximate blood traces strongly imply a struggle. The sudden indefinite and unexplained absence of the loser in such a struggle implies demise.
But that aspect of blood is not my topic. Prosecutable killings tend to sort into two broad categories – killings in hot blood and in cold blood. Again, broadly speaking, mercy of often considered appropriate in hot blooded killings but rarely in the cold blooded ones.
Now we must grant that all murders are, by definition, “with malice”, whether that malice is explicitly proven or just implied from the circumstances. Manslaughter is, in effect, a murder-eligible killing that has been legally mitigated to a lesser form. Historically, manslaughter was reserved for killings (that otherwise would have been murders) “on sudden quarrel” or “in the heat of passion”, in other words – done impulsively, in hot blood.
But the lines between hot and cold, murder and manslaughter are not all that clear. Even a cold blooded killing can be sometimes mitigated, and a hot blooded, impulsive one can seem as heartless as a torture-execution. A killer – who may have acted on impulse and in the heat of the moment – who otherwise shows a methodical coldness after the fact has turned a potential manslaughter into a murder. The calculating, heartless behavior of a killer who meticulously disposes of the body and the evidence inevitably poisons the well; his coldness relates back in the minds of the jurors and colors the whole event.
Finally, there is the simple forensic truth: You can’t mitigate that which you flatly deny.
One of my very first murder cases, years ago, involved a despondent, alcoholic newspaperman, locked in a dreadful marriage. He became depressed and attempted suicide. A few days later he was alone with his wife in the living room. He picked up a toy snake (a later forensic reconstruction – he had amnesia) and strangled his wife to death with it. He apparently called 911 (no one else was home and it was probably his voice). When the police arrived, he was on his knees in the living room, confessing to his priest.
After a good deal of work, some psychological evidence, and a bit of luck I tried the case to a manslaughter verdict. Now, there always is a degree of deliberation in any fatal strangling: The process takes several minutes, and during the first part of it the victim is struggling. It is not pretty to contemplate. Experienced prosecutors are trained to demonstrate this, often using a mannequin and a stop watch. So mitigation in a strangling case is always a challenge.
I have often thought: Had my client attempted to dispose of the body, then behaved evasively afterward and attempted to “get off” at trial, any attempt at mitigation would have been doomed at the outset. And – given his age – he would have died in prison, instead of earning parole while he still had a few good years left.
All this, of course, is based on the still hypothetical notion that this defendant will be found guilty. And at, of course defends on the Blood notes left behind and his ability to convincingly explain
OPD criminalist, Shannon Cavness positively identified blood traces on a sleeping bag cover recovered from the CRX as that of Nina Reiser.
As described earlier, the interior of the CRX was flooded with water. Also recovered were the
tools used to remove the passenger seat, absorbent towels, the two police
procedurals Hans purchased, and the traffic ticket he’d received in
And there was more evidence, equally interesting:
* The CRX
contained a white powdery substance, similar to that removed from the doorway
* A 9-17 U-Haul receipt for a
* A receipt for an overnight
* A 9-14 newspaper clipping – “Police search home of missing spouse.”
I’ll wrap up the rest of the afternoon’s testimony later. Here is the pending question?
WE CAN EXPECT THAT OPD HAS TESTED THE WHITE POWDER RECOVERED FROM THE
WHAT ARE THE RESULTS?
A fungible industrial substance like cement powder or plaster or lye may or may not be definitively identifiable as belonging to a particular batch or vendor.
But the question inevitably arises: If it is the same kind of substance in both places, then is there a logical common explanation for both?
The “Gaping’ whole problem I’ve been referring to could be resolved for many jurors by the answer to that question.
What, for example, would be the reaction if the white powder turned out to be lye? Lye, or sodium hydroxide, is highly caustic. Followers of CSI, Medieval historians and forensic pathologists all know that lye is classically useful in disposing of dead bodies because it promotes rapid decomposition.
Addendum to my Tuesday Post
See “BLOOD NOTES”, below for the earlier testimony today. In the late afternoon, these additional points emerged.
Nina’s disreputable boyfriend, Mr. Sturgeon, gave a DNA sample and there was no
forensic trace of his presence at the
· The blood on the sleeping bag cover that matched Nina’s DNA was hard to see at first. As OPD criminalist, Shannon Cavness, observed: “It was really hard to see without high-intensity lighting.”
· That blood trace was six inches long, more a smear than a drop or speck, it would seem. Reportedly the jury gave this evidence their intense attention.
But the blood on the post
near the entryway in the
NOT A GLOVE --and a long recess...
A LONG RECESS
Testimony ran through the lunch hour and the court adjourned to accommodate a key court employee. So the case of the People vs. Hans Reiser will resume Monday, January 28th when your Out-Lawyer will be more than 2,500 miles away from the courtroom. I will check in during the week and post at least one analysis before trial resumes on Monday, February 7.
Given the detailed opening statement by the prosecution, I’d not expect any sharp surprises until the defense starts in earnest.
WHAT TO LOOK FOR NEXT WEEK & FOLLOWING
One thing to look for before the DA rests, however: In an accident case, tried in civil court, one or both sides often call an accident reconstruction expert. Why not a crime scene reconstruction expert in a criminal case? It’s one thing for DA Paul Hora to draw all of the disparate evidence together in final argument, but far more effective to have an expert witness do it in front of the jury, subject to cross examination. A competent criminalist could probably be qualified as an expert in Judge Goodman’s court. It would be an effective and innovative step- arguably justified by the peculiar circumstances.
AND TODAY? NOT A GLOVE
Contrary to some reports, so far the defense hasn’t laid a glove on OPD criminalist Shannon Cavness.
On cross examination today, she acknowledged that – had she thought that she was dealing with two separate blood sources – the preferred procedure would have been to take not one swab, but several.
But she didn’t and a juror is entitled to ask- How does this matter? In my professional opinion, not very much at all…
More swabs might have identified a part of the bloody area in which Nina’s blood was not commingled with that of Hans and vice versa. Those locations might have enabled a better reconstruction of the struggle. This is an example of the defense pretending to be disappointed at police procedural lapses.
But nothing about the blood
recovery has diminished the ultimate finding, to wit: Nina’s blood and Hans’
blood were both recovered from the same entryway post in the
DuBois’s Co-counsel, Dick Tamor, attempted to get Cavnes to agree that Nina’s DNA recovered from the faint blood stain on the sleeping bag stuff sack might have been drool, arguably commingled with someone else’s blood.
Cavness quite properly answered that, in counsel’s proffered theory, Nina would coincidentally have had to drool exactly on the existing blood spot. What she didn’t say – and may yet have a chance to point out next week – is that no other DNA was recovered from the bag, and that counsel for the defense is entitled to test and retest evidence. What she did say was probably enough to persuade the jury: The most reasonable conclusion is that Tina’s DNA came from the blood itself.
The defense has properly pointed out – and Cavness has agreed to – the proposition that DNA science can’t date a sample. But what are the odds – the jury is now entitled to wonder – that Nina’s and Hans’ blood could innocently have been deposited where the police found it?
Note your other online resources…
Henry Lee of the SF Chronicle at http://links.sfgate.com/ZBLS .
David Kravets of Wired at http://blog.wired.com/27bstroke6/2008/01/jurors-shown-st.html - or navigate to Wired News, then type in “Reiser” having selected blog searches.
Chris Metinko at The Oakland Tribune at http://www.insidebayarea.com .
The Morning Session is Over - Ho Hum
A cross examination by second chair defense counsel of the DA's criminalist so far has accomplished very little other than to telegraph to the jury that this is important evidence based on solid science. I'll cover today's testimony when the sun sets...
ABOUT THAT MISSING HARD DRIVE...
A full account of Monday's session, with drawings, is at WIRED... Go to http://blog.wired.com/27bstroke6/2008/01/hans-reiser-m-1.html .
Monday, January 28.
So where is the Hard Drive?
IN TODAY'S TESTIMONY, THE JURY LEARNED THAT HAN'S COMPUTER WAS RECOVERED, BUT THAT THE HARD DRIVE HAD BEEN REMOVED...
Today’s testimony was dense with detail, much of it about Nina’s pre-disappearance financial transactions – nothing consistent with any putative third party abduction and nothing inconstant with her demise on or about September 3, 2006. In other words, the jury heard nothing – so far in the financial transaction narrative- nothing to move the ball in one direction or another.
DuBois regained lost ground today, however, when an interviewing officer agreed that in an early statement, Hans’ son had in fact seen his mother leave Han’s house on the day of her disappearance. You will recall that the DA’s rehabilitation on redirect was when the boy seemed to agree that he’d merely assumed his mother left because she had said goodbye and hugged.
The record stands there – in ambiguity. DuBois – properly in my objection – has complained that the court’s admonitions of him during his cross examination of the boy amounted to commenting on disputed evidence in front of the jury. A mistrial motion based on that courtroom incident (really a form of judicial misconduct, though apparently not labeled as such in the motion) was filed today. The defense does not seriously expect a mistrial to be granted, so has proposed an alternate remedy in the form of an instruction to the jury, inviting the trial court:
… to correct its error by informing the jury to specifically disregard its inaccurate, intemperate, unfair remarks referenced above”. The jury should be advised that they are the ‘sole, exclusive judges of the facts in this case… to determine whether Nina’s son “left the house and walked up the outside stairs to her van, and as he testified at the (before the trial) got in her van and drove away.”
A trial judge would be ill advised to ignore the request entirely. I would anticipate a watered-down version of the defense proposed instruction to be given, coupled with a standard general instruction that any comments the court may have made on the evidence should not influence the jury in its deliberations.
BUT HANS -- IF HE TESTIFIES - NOW MUST EXPLAIN THE MISSING CAR SEAT, THE BLOOD SPOTS AND HIS EVASIVE ACTIONS... HE MUST EXPLAIN WHAT HAPPENED TO HIS HARD DRIVE. WHAT DID HE HAVE TO HIDE?
Reiser Out of Control
As I wrote early on, Mr. Reiser may prove to be the defense’s biggest problem.
Today, Reiser went nearly ballistic over testimony that touched on the child custody issue, and he began to turn on the defense team. This is a dangerous moment for the defense because a criminal defendant has a nearly absolute right to fire his lawyers and represent himself. [His right to change lawers midstream is more limited. ] If Reiser represents himself, a conviction is nearly assured, and any later claim for ineffective counsel is rendered moot.
The morning testimony concerned Reiser's finalncial transactions. Suffice it to say that he appeared to be in financial distress. Not really news.
I'll pick up these threads Thursday.
Reiser out of control – Chapter Two
Hans evidently is obsessed with the failure of child services and the family court system – both outside the reach of Judge Goodman’s effective jurisdiction as he superintends the murder trial.
Frustrated to the point of
breaking, Reiser can’t abide the thought that local authorities consented to
the kids’ removal to
The rest of the day was eaten up discussing the issue of whether overheard voicemail messages could be dated (yes as to when a message was left, but no as to when it was later listened to). No there were no incriminating, “hah, ha, this is how I did it” bombshells. The jury already knows that Hans hated his wife and didn’t grieve when she “vanished”.
The jury also learned that when Hans was arrested, he had money- $5,790 and $2,018 to be exact. The DA will argue that he planned to escape with it.
And the jury learned that
Hans probably really did attempt to rent a one way U-Haul from
Much of this is the DA being careful and meticulous – filling in all the blanks. I have the impression that one or two surprises are left in the prosecution’s case, held – for now – to be released for maximum impact.
Postscript - End in sight
The Reiser murder trial recessed today at . The prosecution expects to wrap up next week, i.e., in four court days – Feb. 4, 5, 6, & 7. Assuming this estimate holds, the defense begins on Monday, February 11. We should learn very soon that week whether Mr. Reiser will take the witness stand. If so, it will be high courtroom theater.
WHAT IS GUILTY BEHAVIOR?
Thursday – from a remote location…
As of today, the jury has heard more about Hans’s obsession with child services, some of his pre arrest behavior, and – as of the recess – about his actual arrest.
In my opinion, his evasiveness - even a preparation for flight – is cumulative in the sense that this jury doubtless already believes that someone like Hans (think controlling personality with latent paranoid tendencies) on whom suspicion is sharply focused would not simply surrender, even if innocent.
So the real focus will be on other conduct, more specifically related to a ‘guilty conscience’ – such as hiding or destroying possibly incriminating evidence. This is why Reiser’s hard drive and the missing car seat will ultimately prove more important to the “who-done-it” issue than the money in Hans’ fanny pack or his issues with the child protection services crowd.
Think about it for a moment. As a computer scientist, the data in Hans’ computer would be of immense value to him. And remember --- he appears to be a controlling personality with a tendency to obsess over details. What on earth would cause someone like that to jettison his hard drive? I suggest only a powerful motive like saving his skin.
I’ll be back in town on Monday and return to the case then…
THE CASE RESUMES WEDNESDAY TO ACCOMMODATE DA PAUL HORA, WHOSE WIFE JUST HAD A BABY.
REISER - Evil Genius? or Innocent Geek?
Reiser – The Competing Narratives
This case is drawing to its denouement. Ultimately there are two competing narratives. Let’s look at them in broad outline:
The Prosecution’s Storyline
Hans Reiser is a control freak who – in a moment of explosive hatred – attempted to solve his marital and child custody problems in time honored fashion: While his children were distracted, he quickly overpowered Nina, his diminutive, irritating wife, killed her, then temporarily hid her body, probably in the garage. There is blood on the entryway post, in a number of telltale other places. Hans washed away all the evidence he could, but he couldn’t get everything.
This narrative is about a secretive genius, one step ahead of the police, who successfully took a human life and managed to cleverly hide almost all of the evidence. But blood doesn’t lie….
Was he too clever by half? Has he left enough clues behind to warrant a conviction?
The Defense Storyline
Hans Reiser is a socially maladroit computer genius who is being falsely blamed for his expat Russian wife’s disappearance. He’s a little paranoid, but who wouldn’t be? He was screwed from day one because the husband is always to blame. Of course he tried to get away, but that doesn’t mean he was guilty. Don’t forget: Hans’ son said clearly – before the DA tried to talk him out of it – that Mom left the building. If that’s true – and it is – there’s no way Hans could have done it. The other so called evidence is ambiguous and easily explained…
Next week, I’ll outline what I expect to be the best arguments for each side. Meantime, stay tuned.
Evidence resumes tomorrow…
THE REISER MURDER CASE RESUMES - IS THE DEFENSE WORRIED?
Update: Late PM testimony re Han's cellphone activity could prove important. Stay tuned...
IS REISER HAVING SECOND THOUGHTS?
WEDNESDAY’S TESTIMONY WAS CUMULATIVE
So far today () Nina’s prospective employer has confirmed what the jury had already heard, to wit: that just before her disappearance, she had landed a new job, one by all appearances she intended to start on September 21, paying $50K. Her first pre-employment appointment was September 7, a date she missed. She made a point to accommodate her work schedule to the needs of her children.
This was not the picture of a mother about to abandon everything and skip out.
The jury also heard testimony about Nina’s credit cards and banking activity. Nina owed money. There was no activity of any kind (surprise) after her disappearance.
Comment: The DA is now “gilding the Lilly”, having addressed these points earlier in the trial. The purpose is to leave no room for a juror to believe that Nina skipped town, leaving hubby and kids and debts and new job behind.
If the earlier announced witness schedule is adhered to, the DA’s case will wrap up on Tuesday in just three more sessions. To date, the forensic evidence has been enough to hold the jury’s attention and keep a strong suspicion alive. But to make the sale – convincing this jury of guilt beyond a reasonable doubt - the DA will need more.
If you are rooting for the prosecution, you’ll want to know the outcome of every DNA or chemical test. In a perfect world, the prosecution would call a forensic crime scene reconstruction expert to pull it all together and articulate one or more scenarios. If it were my case, I’d attempt it; putting the puzzle together should not depend completely on final argument.
I’ve already identified the question of “corpse disposal” as the gaping hole in the DA’s case. Any jury that becomes convinced that Hans wanted Nina out of the way; that he was capable to killing her, and clever enough to hide it, will make some allowances on the body question. Therefore, once the jury develops a mental picture of Hans as a sort of evil genius, the gap could be closed partially by suggestion. But not entirely. In this context, for example, if the white powder in the doorway of the Exeter house, in Hans’ CRX and in the cement bags under the house are identified as coming from a common source, that ‘coincidence” alone could help fill the gap. If the white powder in the doorway or car is identified as lye? Watch the jurors eyes; they will all look at the defendant and he will look away, suddenly uncomfortable.
I’m dying to know if Mr. Reiser still has the chutzpa to take the witness stand and attempt to answer all these questions. The defense must be having second thoughts…
WHAT THE JURY WILL NOT HEAR
THURSDAY – AN IMPORTANT RULING –
WHAT THE JURY WILL NOT HEAR…
Today’s trial contained two additional elements in addition to the cellphone and financial activity testimony heard yesterday and this morning:
(1) A description of three
different ‘needle in a haystack’ searches in the
(2) A hugely interesting exchange out of the jury’s hearing. This email from Nina to Hans will not be read to the jury:
“I will not continue mediation if you keep threatening me. When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat. I warn you that if you are going to communicate with me in this manner, I will have to end mediation and report it to the police. …”
Too bad Nina didn’t call the police.
If redacted by the court as proposed the email will seem innocuous. Chalk one up for the defense team.
The case resumes MONDAY.
Still no knockout blow….
A NOTE FROM THE 0UT-LAWYER
I'll post an important summary and argument guide on Monday - or possibly Tuesday. I've heard rumors that the DA may wrap up BEFORE Tuesday. That would imply that the prosecution has little left to show this jury. Absent a blockbuster FORENSIC REVELATION, that would be very good news for the defense!
I'm looking for two more full days of prosecution testimony, finishing on a strong note. We'll see...
Just Two More witnesses?
I sense possible trouble for the prosecution...
If the DA rests today, I'll summarize everything this evening or tomorrow morning.
Reportedly, this may well be the DA's last day of testimony. The court is dark tomorrow, and the defense may start as early as Wednesday.
A circumstantial evidence case with a missing corpse like this - needs to be almost airtight. Can the prosecution close all the holes in four more hours?
It appears that the DA intends to rest the case after Nina’s Russian mother has testified, probably ending the prosecution evidence on Wednesday morning.
This is a mistake.
I grant that Mom’s testimony was valuable, and that -- when she continues on Wednesday -- she will have moved the prosecution case forward. Her love for her daughter and sense of loss was palpable.
Clearly, Nina did not flee to
Mr. Hora seems to have underestimated the jury’s social intelligence: Yes the jury needs to hear from those who know the parties, including Nina’s mother, if only to bring home the point that Nina, undoubtedly is dead. But these jurors surely already have concluded that Nina did not flee the jurisdiction and did not abandon her children. No… they are as sure by now that Nina is likely dead as one can be without an autopsy.
But I am afraid that Paul Hora has also underestimated this jury’s reluctance to convict any defendant when the absence of a corpse is coupled with the muddled and incomplete picture of the evidence trail that Nina’s putative killer left behind.
If the prosecution is to prevail in this case, a truly brilliant closing argument will be needed, a logical and passionate exposition that addresses everything of concern -- no loose ends. This prosecutor’s somewhat pedestrian presentation of the evidence leads me to worry:
Will Paul Hora be up to the challenge?
Here’s the crux of the problem for the DA’s side of the argument:
Every failure to present possibly relevant forensic proof, or to test physical evidence, or to explain why the evidence is unavailable due to the cleverness of the evil perpetrator, potentially undermines the prosecution’s credibility. Even if some evidence is inconclusive or negative, the jury needs to know that no stone was left unturned, that the police and prosecution were genuinely trying to answer all the questions, honestly and as completely as humanly impossible.
As the case stands, there is sufficient evidence to convince a reasonable juror that Nina succumbed to foul play, and that Hans had the means, motivation and opportunity to do her in, and that the cues, clues and telltales, when taken as a whole, point strongly to him and no one else.
Will sufficient be enough?
As I indicated at the beginning of the trial, reasonable doubt is an elastic standard, one that stretches or contracts depending on intangible factors, the strongest of which is the jury’s impression of the defendant as a person.
Among the cues, clues and telltales, the
traces of Nina’s blood on the body-sized bag in Hans’ car, and of both his and
hers blood on the front post in the
In spite of comments and suggestions of
others, I very much doubt that the defense cross examination has eliminated the
“blood problem”. We can take note that Nina did not live in the
As I wrote earlier:
Shannon Cavness positively identified blood traces on
a sleeping bag cover recovered from the CRX as that
of Nina Reiser. Nina’s disreputable boyfriend, Mr. Sturgeon, gave a DNA
sample and there was no forensic trace of his presence at the
Moreover, the blood on the
post near the entryway in the
Caviness agreed that it would have been better procedure to have taken separate swabs. “If you had to do it over, you would have swabbed it two different times, right?”
I covered this line of attack earlier.
Contrary to some reports, so far the defense hasn’t laid a glove on OPD criminalist Shannon Cavness.
On cross examination today, she acknowledged that – had she thought that she was dealing with two separate blood sources – the preferred procedure would have been to take not one swab, but several.
But she didn’t and a juror is entitled to ask- How does this matter? In my professional opinion, not very much at all…
More swabs have identified a part of the bloody area in which Nina’s blood was not commingled with that of Hans and vice versa. Those locations might have enabled a better reconstruction of the struggle. This is an example of the defense pretending to be disappointed at police procedural lapses.
But nothing about the blood
recovery has diminished the ultimate finding, to wit: Nina’s blood and Hans’
blood were both recovered from the same entryway post in the
DuBois’ Co-counsel, Dick Tamor, attempted to get Cavnes to agree that Nina’s DNA recovered from the faint blood stain on the sleeping bag stuff sack might have been drool, arguably commingled with someone else’s blood.
Cavness quite properly answered that, in counsel’s proffered theory, Nina would coincidentally have had to drool exactly on the existing blood spot. What she didn’t say is that no other DNA was recovered from the bag, and that counsel for the defense is entitled to test and retest evidence. What she did say was probably enough to persuade the jury: The most reasonable conclusion is that Tina’s DNA came from the blood itself.
The defense has properly pointed out – and Cavness has agreed to – the proposition that DNA science can’t date a sample. But what are the odds – the jury is now entitled to wonder – that Nina’s and Hans’ blood could innocently have been deposited where the police found it?
As described earlier, the
interior of the CRX was flooded with water.
Also recovered were the tools used to remove the passenger seat, absorbent
towels, the two police procedurals Hans purchased, and the traffic ticket he’d
We can expect that OPD has tested the white powder recovered from the
What are the results?
The DA is about to rest the case; apparently the jury won’t be told.
This is among a number of loose ends the DA has intentionally or negligently left wide open.
As the defense begins, keep in mind that Hans could salvage his case by testifying credibly, thereby cinching an acquittal or he could make things far, far worse, especially if he clings to incredible story that Nina is still alive and well protected by the KGB.
The remaining nightmare for
both sides is Hans little boy. Will he be believed when he reported Dad
carrying a heavy bag downstairs or when he reported Mom leaving the house or
when he seemed to acknowledge that he only assumed Mom left the
One of these versions leads to a probable acquittal, one to a conviction and one to disregarding his testimony.
Today, when confronted by the
rapidly deteriorating crime situation in
THE LAST PROSECUTION WITNESS? WHERE ARE WE?
The print version of this post is linked at http://jaygaskill.com/WhereAreWe.htm .
WHERE ARE WE?
WHERE IS THE JURY?
The prosecution reportedly intends to rest with the testimony of Nina’s Russian mother. At this writing, she is still on the stand. I doubt that the balance of her testimony today and any cross examination – possibly running over ‘till tomorrow – will alter the legal landscape much.
So far, little of forensic interest has been added, although there was great emotional interest, even elements of soap opera – references to Nina’s old boyfriend, the wedding to Hans and so on. Among the main points of interest:
Grandma wanted to raise the children because she didn’t want them to be with “a killer.”
She confirmed the animus Hans
had towards Nina, and that her daughter wanted to raise the children in the
At one point, the jury heard Nina mother’s translation of her last call to Nina on the day her daughter vanished -“My dear, dear, dear little Nina. I cannot reach you by phone. I will call you later regarding the bank issue.”
The DA drew a little blood with this quote (hearsay received over objection), from Hans’ son via Grandma on the stand: “Momma has disappeared. Poppa is with the police because he doesn't want to answer questions that have to do with her disappearance.”
Grandma sent DA Hora an email
Then an even more sinister colloquy with the boy was recounted. He said that Mommy and Dad frequently fought, but 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.
If the DA rests after Nina’s mother, Irina Sharanova, finishes, then an important opportunity to tie up loose forensic ends will have been missed.
As I write this on Wednesday afternoon during Ms. Shasanova’s testimony, there is no “smoking gun” - just a deep, sinister cloud surrounding this defendant. Most jurors - maybe all twelve - are leaning for conviction.
But jurors are troubled. What, they will soon ask themselves, does “reasonable doubt” mean, anyway?
The defense task is to take nagging doubts and incomplete proof, and turn the mix into a vote for “not proved”. The system doesn’t require a vote for innocence, a good thing for Reiser. That would be forensically out of the question – absent a real alibi.
I suspect that Bill DuBois is thinking that, unless he screws up at this juncture, he probably has a hung jury in the bag. This why he has recently temporized about whether his client will testify. You can bet that the defense team has worked Hans over – urging Hans not to take the stand. And you can bet that Hans is resisting, hoping he can work some kind of magic on the jury. Surely, he thinks, these people will see the conspiracy against him as clearly as he did.
HERE IS MY SCORE CARD
1. Hans hated Nina and wanted her out of the way: Proved.
2. Nina disappeared under sinister circumstances: Proved.
3. If Nina could come back she would: Proved.
4. Hans threatened Nina: Not allowed.
5. Nina’s blood was left behind in sinister places: Proved.
6. Hans destroyed key evidence. Proved.
7. No one else is a plausible suspect. Open.
8. Hans has an alibi. Open.
9. Hans has lied about important matters. Open.
10. Hans behaved evasively when under suspicion. Proved.
11. The only reasonable explanation is that Hans murdered Nina. ???
The rules forbid the DA from commenting on a defendant’s decision to stay off the witness stand, or from asking the jury to draw a negative inference from that decision. But the jury can be asked to draw an inference of consciousness of guilt from a cover up and from the destruction of evidence.
If Hans takes the stand, expect these questions, among others:
Where is the car seat? When and why did you get rid of it? Would you mind if we took a day or so right now to look for it?
Where is your hard drive? What didn’t you want us to see? Would you mind if we took a day or so right now to look for it?
How did Nina’s blood get on the sleeping bag cover? The door post? How did your blood get there?
Let’s talk about that white powder…
You get the idea. DuBois would be out of his mind to expose Hans to these questions.
If Hans takes the witness stand (presumably against the advice of his attorneys) and seems to be deceptive or outright untruthful about anything, he is sunk. The DA should be ready to take him apart.
If the defense is able to further weaken the DA’s case without using Hans, then the outcome will turn on rebuttal witnesses called by the DA. If nothing more is forthcoming from the prosecution, then the smart money is on a hung jury, with an outside chance of not guilty or guilty as charged.
Why would Hans rationally consider taking the stand? Because he can’t afford a hung jury – he must go for broke because after this trial he will be broke. He won’t be able to pay for the current team to repeat the performance in a few months. Yes, the county will provide a new legal team – possibly from my former office, but it – in Hans’ mind – just won’t be the same.
And any delay (assuming, arguendo, that Hans is guilty) increases the chances that the prosecution will discover the body, the car seat, the hard drive or something else equally incriminating…
THE REISER DA RESTS
HANS REISER ON TRIAL
THE DA HAS RESTED WITHOUT INTRODUCING FURTHER FORENSIC EVIDENCE.
Since yesterday’s post, Bill DuBois’ cross examination of Nina’s Russian mother has done little to undercut the impact of the son’s testimony about Daddy carrying a Mommy sized package down stairs – it was ambiguous and dreamy before and remains so now, along with his confused and confusing account of mommy leaving the house – or not.
For the flavor of the cross, see these excerpts -- courtesy of the San Francisco Chronicle’s Henry K. Lee (who blogs the case at http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=37&entry_id=24240 )
Grandma: "We would just keep the conversation going when (R) would start a conversation like that. We never were the ones to start the conversation," she Dubois: "And did you tell (R) during these conversations that he stated that Hans hid his mother?"
Grandma: "This was (R’s) version," she said. "He was investigating it on his own."
Dubois: "And did you tell him that Hans did something bad to Nina?" the defense attorney pressed.
The bottom line is that Grandma denied influencing the boy and the jury will have to sort this out. The picture in question (of Dad carrying something) was produced when the boy was with Russian social workers.
On another tack, DuBois explored Nina’s relationships with two prior boyfriends, the strange Sean Sturgeon (whom the jury has not seen) and Anthony Zografos, who has testified. The obvious purpose of this line of questioning was to create the impression that perhaps a jilted, jealous lover might have a motive to harm Nina. If so, the effort turned up nothing out of the ordinary.
This leaves the case about where I described it yesterday, with all eyes on the defense: that phase starts with evidence on Tuesday morning.
Pending that effort, I am now separately posting the first of two or more guides to the final arguments. This one, dealing with the Circumstantial Evidence Rule, is as follows:
A Print Version of this Piece is linked at http://jaygaskill.com/PeoplevsReiserArgumentGuide1.htm
Arguing the “Circumstantial Evidence” Rule
Here is the Circumstantial Evidence Rule. The trial judge is required to include it in the charge to the jury, in substantially these words:
The defense will try to break down and compartmentalize each bit of damaging evidence, applying the circumstantial rule to negate each separate, potentially incriminating fact.
For example, we can expect the defense to argue that a particular DNA sample might reasonably have gotten there innocently – think of that hard-to-see smear of Nina’s blood that was recovered and identified from the stuff sack. The argument might then go like this:
“As the trial judge will instruct – whenever ‘one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence’. Nina could easily have left a blood trace at a different, happier time in the relationship. Under the rules, if you find that to be a reasonable possibility, then you, the jury, must adopt the innocent conclusion and move on.”
This technique can be repeated for other blood stains, the car washing and so on. This repeated use of the rule, in effect the balkanization of the DA’s case, is one of those fallacious forms of argument that the defense is allowed to pursue without an interruption by the judge. The response is up to the DA.
A prosecutor in a case like this will typically argue that the jury is entitled to aggregate all of the proved suspicious and incriminating circumstances as a whole. Then, using common sense, the jury will determine whether the total weight of all circumstances can reasonably be reconciled with the conclusion that the defendant is innocent. A prosecutor may point to the defendant in the courtroom meaningfully -- “You don’t have to leave your common seense behind when you enter the jury room.”
This total case “gestalt” argument is the only way to avoid the chain of evidence trap, such that the entire case is as weak as any single bit of proof (thinking of the late Johnny Cochran’s line - “If the glove doesn’t fit, you must acquit!”).
How effectively Paul Hora calls Bill DuBois on the “divide and ignore” defense technique will matter because ultimately any trial is about credibility. That is especially one in one like the Reiser case where each lawyer will be telling the jury with a straight face that the evidence points in opposite directions!
Blood and Sophistry
Maybe this IS Rocket Science …
Print Version Link: http://jaygaskill.com/SophistryTrap.htm
Beware Defense Sophistry
Wired Magazine’s reporter,
David Kravets, and other intelligent
commentators, have repeated the erroneous idea the OPD’s
criminalist failed to definitively identify Nina’s blood on the post in the
front doorway of the
This problem has been conflated to the false assertion that the DNA evidence has failed to identify Hans’ and Nina’s blood on the entryway post. Not so.
This incident shows how easily defense cross examination can mislead highly intelligent observers, and how DA Paul Hora completely missed the opportunity, on redirect, to clear up the matter.
The forensic “error” , here, was in the failure to take two swabs from the post, so that OPD’s expert witness was left uncertain whether the blood was from two distinct smears, possibly overlapping or just one. The takeaway point, however, was that, beyond any reasonable doubt, Hans’s blood AND Nina’s blood were BOTH on the post.
Do Not Read This Blog!
The Reiser jury will doubtless be instructed as follows:
Prudently, the court might add: Avoid all blogs, especially Gaskill's because he actually knows what he's talking about.
THAT DARNED POST
That Darned Post Again
This is the last critical
stage in the murder trial of Hans Reiser. Watch for the blood smudge on
the entryway post in the
Here’s the DA’s best question: "Mrs. Palmer, after you realized that Nina was missing did you ever inspect the post in the entryway to your house?"
If the answer is “No’, then point made. The jury knows from common experience that there is a difference between casually noticing something and paying close attention.
If the answer is “Yes”, then the obvious follow up question is ”What aroused your suspicion?" And the follow up: "Did you ever notice the blood smear on the post that OPD’s Shannon Cavness described and tested?"
Stay tuned. This will be quite a week…
The Embezzlement Theory
AN EMBEZZLEMENT THEORY SURFACES
Defense evidence has begun.
This morning’s session was taken up by testimony from a divorce lawyer who was investigating the possibility that Nina had embezzled money from Hans’s company. There were a number of objections from the DA during this session, but the picture emerged as follows.
At a divorce related deposition, Nina said that “Sean Sturgeon was the co-signer and authorized user of our business bank account with Citibank and Patelco.” Recall that Sturgeon was Hans’ colleague with whom Nina carried on an affair.
At the same deposition, the jury was told that Nina has testified that Hans gave Sturgeon access to the company accounts (Namesys). Then -- after DA objections -- DuBois was allowed to ask if the attorney was investigating “whether Nina was embezzling money from Namesys?” The answer – “I was in the process of investigating” was allowed just before the lunch break.
I suspect that DuBois can be going only one of two directions with this line.
For example, he might still be trying to create the impression that Nina has made off with company money, staging her disappearance, or he might be laying down the foundation for an argument that the “evil boyfriend”, Mr. Sturgeon, is a live suspect because of some sort of betrayal.
But here’s the risk with this approach: The Hans was framed theory will not sell. And, if Hans thought that Nina had not only betrayed the marriage, but had also looted his company, he might well have become furious enough to get her out of his life … forever…
The most intriguing theory, evident from the beginning of the case, is that somehow Sturgeon could be painted as a murder suspect.
[Can a sturgeon be a red herring? Sorry…]
TREADING WATER OR SINKING?
It was not the best of all possible afternoons for the defense.
In the morning session, my impression was that Bill DuBois was treading water, making a tiny bit of headway at the expense of developing yet one more layer of motives for Hans to have murdered Nina.
This afternoon it got even worse for the defense, in my opinion.
Before turning the witness over to the DA for cross examination, the divorce lawyer answered defense questions that established that Nina was living an extravagant life style and was contemplating filing bankruptcy.
Now bankruptcy is a dramatic step, one that - according to the defense witness – would have thrown a wrench into the divorce proceedings: “When a bankruptcy is filed in a divorce case…a federal stay that is imposed on the case. The trustee now has possession of all the assets. …The only jurisdiction germane to the family law court is adjudication of support issues, custodial issues…”
I should add that a bankruptcy and divorce would together have wrecked havoc in the affairs of Hans’ company, Namesys.
Men have killed for less….
In his cross examination, the DA was able to establish that, in the event of Nina’s death, Hans and the children would inherit, but if the husband is convicted of murdering his wife, that would not be the case.
After a “research break” the divorce attorney was allowed to reveal that the reason he was investigating possible embezzlement by Nina was because Hans had in effect directed him to do that.
I suspect that, in Bill DuBois’ efforts to trash Nina’s character, he has stumbled into evidence that further weakens the defense case.
Why do this?
I also suspect that the defense team is trying very hard to keep Hans off the witness stand. This requires two things, in addition to any back stage conversations with their client: (1) Nibble away at the DA’s case until a reasonable doubt argument can be grounded in evidence other than Hans’ words. (2) Stall for time while Hans makes up his mind.
I’ll pick up the rest of today’s session, if any, when I post tomorrow.
WHAT ARE THEY THINKING?
WHAT IS THE DEFENSE THINKING?
A really excellent account of yesterday’s testimony, including the last, brief witness that I did not mention, was posted by WIRED’s reporter on the scene, David Kravets. Go to http://blog.wired.com/27bstroke6/2008/02/hans-reiser-m-2.html .
The last witness of the day
was Coralie, a friend of Reiser’s mother. Her contribution? In October, 2005, Nina revealed that she
wanted to take the kids and go to live in
Recall the warning to Nina the former OPD officer, after seeing the fury in Hans’ eyes- Get a gun. Coralie lined up with Hans’ mother on the larger issue: She doesn’t thin Hans killed Nina. I think that most of this jury remembers that warning and disagrees with Mrs. Palmer and her friend.
Time will tell.
One thing this ill advised line of defense
tells me: Hans is very much in charge of the defense. But this jury
undoubtedly believes that Nina is dead, not hiding in
Hans' father testifies today.
A Bizarre Day with Dad and more...
A Bizarre Morning with Dad and More...
You can’t make this stuff up.
Hans’ father, Ramon, apparently a former security & intelligence operative was a very difficult witness.
He has been described as a
former Army “researcher” – evidently serving in
Ramon Reiser was in
Later, when it came to Dad’s attention that Nina was missing, his advice to his son was very strange. He warned that any mysterious figures following Hans “were not likely police”.
Dad apparently believes that
former KGB goons of the type that he had encountered in
His reasons for this suspicion were never clear, but the implication was that one does not mess with Nina.
This line would be more persuasive if Hans had suddenly disappeared without a trace after giving his wife a hard time.
There were other points as well, difficult as it was to separate them from this witness’s ramblings.
* From Ramon Reiser’s perspective, Nina appeared to be a devoted mother in public, but in private she was somewhat diffident.
* There were references to Hans’ childhood and an anecdote about cars. In the old days, Dad frequently grove his old ’56 Beetle with at least one seat missing. So we are to believe that it runs in the family?
In all, Dad was a sympathetic but confused and confusing witness, a handful for the lawyers and the judge to keep on topic.
Dad’s advice to Hans, given after Nina had vanished, may provide a partially innocent explanation for Hans’ evasive tactics, post Nina. But I’m afraid another take is equally plausible, – assuming arguendo, that Hans really did kill Nina: If he took his father seriously, Hans might have been more afraid of Russian retribution than of the minions of OPD!
The reference to “S & M techno-geeks” will be probably understood by the jury to relate to the still mysterious Sean Sturgeon. But, at this juncture, there is simply no credible evidence before this jury implicating anyone by Han Reiser in his wife’s otherwise unexplained disappearance.
Without more details and corroboration, Dad’s ramblings to his son might become for this jury little more than idiot’s tale in Macbeth, “full of sound and fury and signifying nothing.” (Macbeth, Act Five, Scene Five)
As the curtain rises again, Dad is back on the stand….
The direct examination of Ramon Reiser concluded uneventfully.
On cross examination DA Hora tried unsuccessfully to get Ramon to identify a picture of a sleeping bag found in Hans CRX. Mr. Reiser was apparently still babbling a non responsive answer when the DA gave up.
On redirect, DuBois tried, over objection, to get Ramon to read into the record an email received from Nina in later 2001. After a long exchange between counsel and the judge, Ramon eventually read portions of the email, to the general effect that Nina had never wanted a second child, that Hans had overruled her, but that the couple’s daughter (the second born) would not ever come between mother and son, “will never be fully part of us”…
Then Ramon commented about the email exchange to Paul Hora “it was bizarre -something very sick the way she said it. She was furious…”
And that was the end of Ramon Reiser’s testimony.
Why, one is tempted to ask, did Bill Dubois even bother with this witness, unless it was to humor his own client?
In any event, the forensic impact of this testimony is marginal. Even if it is true that Nina was predisposed to reject her daughter, none of the American witnesses who have testified to her obvious devotion to the children would support the notion that this young mother of two would voluntarily abandon both children.
ENTER THE "SHRINK"
Dr. Beverly Parr, a psychiatrist, was called to the stand to discuss Asperger's Disease or syndrome) as a possible affliction common to "Computer Geeks". She had examined Hans at age three.
I'll pick up this thread tomorrow, but it is clear enough where DuBois is going with this evidence. This is not a mental defense as such, more of an "it's not Hans' fault he's so weird" parry, designed to deflect the "cold hearted evil genius" image.
The Family Shrink Leaves the Stand and Mom Returns
Will this trial NEVER END?
At the risk of radical simplification, let me condense several hours. The psychiatrist, Beverly Parr, who was familiar with Hans’ mental state from an early age, has opined that he exhibited some of the characteristics of Asperger’s syndrome/disorder/condition. This – surprise – is often associated with brilliant, socially difficult people.
But – on cross examination by the DA – the jury learned that Hans remained capable of planning and carrying out a murder. No surprise there either.
This was roughly a day’s worth of testimony, and I doubt very much is the jury gives a whit. They have not learned anything germane about Hans from this mental health professional that they were already to glean from the relevant lay testimony.
Dr. Parr was followed this afternoon by Hans’ mother, Mrs. Palmer, who has previously testified for the DA about – among other things - “that darned post’.
As I write this, Bill Dubois is trying to establish a pattern in which Nina demonstrated less than fervent interest in being with her children, for example by wanting to take three months away in Russia instead of the two she had initially scheduled, threatening not to come back without large sums of money being deposited in her account, even threatening to move to Sweden with the children at some point.
This is not so much the portrait of a mother seeking to escape motherhood, but the picture of a strong willed young mother who was perfectly willing to pull someone’s chain to get a result.
It doesn’t sound like Nina was on perfect terms with Mom or Dad and - of course -Nina was trapped in a hostile relationship with Hans.
Frankly, like almost
everything the defense has so far produced, this evidence cuts two ways.
If Nina liked to pull people’s chains, and if she chose
In additional Palmer testimony, the jury is being treated to Hans and Nina’s wedding videos, to the fact that Hans was a messy guy, and that she had urged him to clean up after himself. In particular, Mrs. Palmer had urged Hans to clean up the cherry blossoms that tended to accumulate in the driveway…
I’m closing out for now with Mom still on the stand. I’ll pick up at this point tomorrow.
As I indicated in a prior
post, I’m hoping that DA Paul Hora manages to find an opening to revisit that
blood smudged entryway post in the
Mrs. PALMER’S CROSS EXAMINATION
After I concluded my account of yesterday’s testimony at , DA Paul Hora did a pretty good job cross examining Mrs. Palmer, Hans’ mother.
However, in my opinion, Paul
Hora blew a perfect opportunity to clear up her testimony about the blood
marked post in her house’s entryway. For this error, I assume one of two
things was going on: (1) It didn’t even occur to him to try (see my
earlier comment (“That Darned Post”) for why that effort might have paid off;
or (2) he was worried that he would only make matters worse. As matters stand
the defense can argue that the Nina’s blood might have gotten on the post
several weeks earlier – basing this on Mrs. Palmer’s somewhat casual
observations to the effect she noticed nothing different about the post when
she returned from
Among yesterday’s highlights, was this gem --
[Credit the S. F. Chronicle’s Henry Lee -- http://www.sfgate.com/cgi-bin/blogs/localnews/category?blogid=37&cat=1428 }
There was additional cross
examination about Nina’s threat to leave and take the children with her to
And there was testimony
explaining the tension between Hans and his mother over his messiness.
When Palmer left for the “Burning Man” festival in
But he forgot to wipe the blood smear from the front post…
The case resumed Monday afternoon. Mrs. Palmer is off the witness stand… for now.
SELF INCRIMINATION AND THE ABSENCE OF EVIDENCE
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SELF INCRIMINATION AND THE ABSENCE OF EVIDENCE
The end is near.
Question: What is a juror to do with the absence of evidence? In a circumstantial case like this one, you would think that all gaps in proof should automatically inure to the benefit of the defense.
That’s not entirely true.
Any attempt, successful or otherwise, by the accused to hide or destroy potentially incriminating evidence allows the jury to legitimately draw the common sense inference that the defendant is concealing or eliminating evidence that tends to reveal his guilt. These consist of the elements of circumstantial evidence (like flight or attempted flight from the police) that allow - but do not require - the jury to infer that the accused is more likely to be guilty. Behaviors of this class (i.e., when the accused hides stuff and flees or tries to do that) are presumed, in the ordinary course of things, to demonstrate a guilty mindset.
The key phrase here is ‘in the ordinary course of things’. One of the most powerful arguments a prosecutor tends to make in these cases is this injunction: “When you begin your deliberations, you are not required to check your common sense at the door.”
I believe that the “incriminating behavior” problem is the key to the defense’s (probably ineffective) use of the psychological profile of Hans provided by the family shrink. Its purpose was to deflect those ‘ordinary course of things’ inferences on the grounds that Hans Reiser is a unique case, a sort of awkward, brilliant, socially maladroit geek for whom the normal psychological rules don’t apply.
Note to Bill DuBois: That won’t sell – except as to some of the later evasive behaviors, when it might not have been clear whether Hans was being stalked by cops or thugs. We can expect the prosecutor to argue that the removal of Hans’ hard drive, the removal of his car seat, the over-the-top cleaning of the CRX (the car Mom Palmer wouldn’t normally see) are of one piece. They are guilty behaviors designed to eliminate incriminating evidence.
Among the incriminating coincidences, Hora may also argue: Why would Hans nervously approach his children’s school - hours before the situation of his now missing wife would be discovered by Ellen, Nina’s friend?
And it is just at this point in the argument that the DA must tread very carefully – in the event that the defense has rested without calling Hans as a witness.
Since 1965 (in Griffin v. California, 380 U.S. 609) when the US Supreme Court slapped down a California prosecutor and judge for ‘violating” the Fifth Amendment, DA’s and judges everywhere have been strictly forbidden from commenting on the defendant’s decision to remain silent at trial – even though the inference of guilt might otherwise be compelled by common sense.
So a prosecutor may not comment on a defendant’s refusal to talk to the police or decision not to take the witness stand in the trial.
But the trial prosecutor may argue about the defendant’s non-testimonial conduct as “speaking louder than words”. Of course, this DA does not have a perfect case. In that situation, there would be clear evidence that husband disposed of the wife’s body. In such a hypothetical fact pattern, the illicit body disposal, alone, screams louder than any testimony: He murdered me!
In this case we have a trial by inference.
Only trial lawyers fully appreciate this truth: You can’t pick your favorite evidence trail and you can’t pick your favorite client.
When the defense has rested look for my next installment in this Guide to the Final Arguments: “Part III - The Silent Witnesses.”
In the meantime, I’ll continue to comment on the significant developments as they occur.
REISER RESUMES IN FOUR HOURS AND....
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THE REISER CASE NEARS THE END
WHY WE ARE STILL WAITING FOR THE BREAKTHROUGH
The Han Reiser murder trial resumes in about four hours.
The DA has rested without a blockbuster, case clinching piece of evidence. The only remaining possibility for a “breakthrough” event would be Hans’ own testimony. But that may not happen….
At the beginning of the Hans Reiser trial, I offered the opinion that Hans should testify – in spite of all the attendant risks. This was based on a couple of assumptions – that the circumstantial evidence against his would be inconclusive and that he was innocent, or at least had a clear path open to him in which a defendant-as witness might persuade a jury to acquit.
If you’ve been following my comments over the last weeks, you know that I’ve changed my mind. The seeds of this change of mind were planted early when I noticed the tension between the defendant and the defense team, Reiser’s obsession with the child custody issues and the early commitment by the defense to an untenable theory of defense, to wit, that it was all some shadowy KGB conspiracy. This was the picture of a defense team trapped by a nutter defendant whose paranoid picture of the case against him contained the seeds of defeat. It might have seemed irresistibly appealing to Bill DuBois to play with the notion that Nina was still alive somewhere, but that required us to actually believe that she would suddenly abandon everything, kids included, for some new, under-funded and perpetually covert life elsewhere. In one of those rational intervals that tends to infect the defense mind, surely, I thought, the defense team was rethinking whether is was such a good idea, after all, to expose Han Reiser to the rigors of cross examination by the prosecution.
In this connection I want to comment, in passing, about all the net-chatter concerning that “greedy, manipulative Russian bi…” stereotype. Whatever the folklore about the behavior of "Russian mail order brides” generally, I would remind this subset of web trial groupies of two things: (1) This is not about your stereotype generally but about a well educated young physician from a middle class background; (2) The key issue is not whether Nina would give Hans a hard time during the marriage, but whether she would voluntarily abandon her US life and children in one dramatic gesture, leaving behind money, passports, driver’s license, anew job and rotting groceries in an abandoned car.
Yes, the evidence against Hans is still inconclusive, but the better defense – still unexploited by Mr. Dubois and possibly now unavailable due to earlier miscalculations – is that someone else caused Nina’s involuntary disappearance.
Consider the problems presented for the defense by calling Hans as a witness. Every murder case involves eliminating a witness: After all in a mere assault – all too common in a domestic dispute of this type – the wife lives to testify against hubby. It is unwise, in the extreme, for an innocent suspect in any murder case to attempt to flee, to destroy or hide evidence. This is why, in celebrity cases, the lawyers always announce on behalf of the suspect client, that ‘these charges are baseless and my client is fully cooperating with the investigation,’ or words to that general effect.
So Mr. Reiser is in a trap of his own making. We’ll soon find out what he has decided to do about it.
VERY CLOSE TO THE END?
In the afternoon session, this is what happened….
The jury was shown a September 6th video of Hans giving a technical presentation to a group; this was all about Hans’ demeanor. The defense hopes that he didn’t look like a killer. Did this ploy work? I doubt it, but your guess is as good as mine…
And two investigators were called, one who inspected Hans’ CRX and one who was offered an international travel expert.
The first expert opined, after examining the vehicle and taking into account Hans’ size, that if Hans intended to use the CRX to sleep in, he would have needed to remove the passenger seat.
The second investigator, hired only a couple of days ago, told the jury that someone like Nina, with dual Russian-US citizenship, could have gotten replacement travel documents at the Russian embassy with her birth certificate. Alternatively, he knew of places where someone could purchase false travel documents. [Recall that all of Nina’s official picture ID, her CDL and passport) were left behind and that Homeland security requires an official picture ID.]
The jury is left to wonder whether this is more than defense speculation dressed up as testimony. Among the remaining questions that will probably not be answered are these:
1. whether anyone has contacted the closest Russian embassies;
2. whether Nina (who left cash and credit cards behind in her car, along with the rotting groceries) had access to enough money to pull off a disappearing act; and
3. who, if anyone, might have helped her with all these arrangements.
On cross examination, DA Hora showed the witness Nina’s two passports, one Russian and one US. They appeared to be authentic. He asked the witness whether it is easy to track down someone who travels abroad using false documents. Not at all, the witness opined; moreover, it is not easy to even to find someone who is not trying to hide because “most people don’t leave a trail.”
Then he was asked if anyone had asked him to try to locate Nina. The answer was “no”.
The case recessed until tomorrow with a discussion of pending defense motions (the motion for dismissal will be denied) and a reference to the jury instructions that the court is preparing. Instruction issues must be resolved before final arguments and the trial court normally gets to the instructions issue within a day or two of the arguments. But there are scheduled breaks and absences to be factored in.
I am left with the impression that the defense intends to wrap up the defense case fairly soon. Of course, this implies that Hans will not testify, and that the DA will not have been given any evidentiary targets to rebut. That will all change dramatically if Hans testifies. In that scenario, the case could easily run all this week and next, using part of the week after that for the closing arguments....
BREAKING NEWS - HANS WILL TESTIFY
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Today’s session was otherwise unremarkable.
The jury was sent home early in order for the defense to argue a mistrial motion growing out of a contretemps that occurred earlier when Bill DuBois was chastised in front of the jury - improperly chastised the defense argues – over a dispute about exactly what young R. (Hans’ son), had said on the crucial matter of Nina’s departure from the Exeter house on 9-3-06.
As I indicated at the time, we can expect the court to address the problem in the instruction to the jury; a mistrial will not be granted, in my opinion.
But we were treated to a window into the inner working of defense planning when the judge revealed the forthcoming schedule.
Tomorrow: A Reiser family law juvenile court attorney continues with testimony. (See my summary below). Then, as time allows we are to expect the following:
* A defense DNA expert
* A defense shrink
Thursday: Han Reiser will testify.
Monday (March 3): Reiser testimony probably concludes.
Wednesday & Thursday: More evidence – not specified, but possibly DA rebuttal.
The week of Monday March 10: Recess all week.
Monday: March 17: Closing Arguments begin.
What the jury heard today:
A software designer who knew Hans provided a sort of personal profile of Hans as a careful, very bright man who tended to hide his distress. A pull quote: “… I think he's a pretty erudite person. He generally thinks through things.”
Then on cross examination, DA Hora referenced an article in the Daily Cal student newspaper describing an argument between Hans and a student. This is one of the strangest episodes I‘ve encountered in a defense case. Here is a witness called by the defense for essentially a trivial discussion with little advance preparation, who becomes a witness that provides potentially damaging character evidence on cross examination.
Here is how the witness described the student after the confrontation: “…there were no signs of any struggle or anything like that.”
I’m sorry, what were we supposed to expect? That Hans had attacked the student with a crowbar?
This was the defense witness describing Hans: “I think he’s a little arrogant.”
The juvenile court attorney who represented Hans as he sought custody of his two children began testimony that ended early. So far, we’ve learned that, during these juvenile court custody proceedings, Hans had been tagged as “a person of interest” in his wife’s disappearance.
Hans’ testimony is a dangerous, but probably necessary step by the defense.
It is dangerous because the defendant will have to explain a number of things, like the removal of his hard drive, the not trivial matter of where and how he disposed of the car seat, and so on. There is a long list of apparently incriminating things to be explained in the case. If this jury thinks that Hans is lying or attempting to deceive them, all of the defense gains will be erased. I have often said that there is no reasonable doubt case so strong that a defendant cannot snatch defeat from the jaws of victory in ten minutes on the witness stand. We can assume that at least one of the DA’s inspectors will be on hand to follow up on leads provided by Hans’ testimony.
The decision to testify was probably necessary because Han undoubtedly made the decision early and firmly thus leading Bill DuBois into the trap: Having announced that his client will testify and having crafted the defense evidence in harmony with that expected testimony (i.e., that Nina is alive and fled the country), the defense credibility is on the line.
We are about to see a bravura defense performance when Hans testifies or we’re going to witness a train wreck. Talk about rolling the dice!
Sorry: You Can't Have it Both Ways
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SORRY – YOU CAN’T HAVE IT BOTH WAYS…
I have recently speculated in conversation that the signature of the Nina Reiser killing (assuming here for argument’s sake that the husband did it) is more like a sudden quarrel, impulse murder/manslaughter, followed by an “On sh..!” series of quickly executed cover-up actions, than some long thought out sinister plot on the killer’s part. A number of comments, sympathetic to Hans have surfaced recently (one of which is appended to my last post by “Christopher”).
Here’s the deal: Christopher’s second comment exposes the hidden “tragedy’ in this case (for those who care about “perfect” justice). If you falsely claim that a killing didn't happen or that you didn't do it, then - in the real world - you can't expect any measure of mitigation due to "provocation" and so on. Defendants can't have to both ways. Trust me, I’ve been there with a defendant many, many times….
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ONE INCH FORWARD, A FOOT BACK.
As updated on
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.
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 whether this defense witness will be allowed to testify in the case at all.
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…”.
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.
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
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.
Reiser: Fraga qualifies - Is This another Train Wreck?
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REISER AM 2-28 REPORT
IS THIS ANOTHER TRAIN WRECK IN THE MAKING?
DR. FRAGA QUALIFIES AS AN EXPERT WITNESS
HANS’ TESTIMONY IS ‘NOT TODAY’
In front of the sitting jury, Dr. Fraga ran up to the break answering questions about his qualifications.
The jury now knows that this defense expert witness has three felony convictions, two for cocaine and one for forging US treasury checks, with lesser DUI & hit and run cases thrown in for good measure.
This is the first time Dr. Fraga will have testified as an expert in “children’s cognition”, and he has never published on the subject.
Why would Bill DuBois take the risk of putting on this somewhat pre-damaged psychologist?
I suspect there are two reasons: (a) Dubois and team couldn’t get anyone else. (b) The defense still hopes to use Fraga to get before the jury young “R…”’s testimony at the Reiser preliminary hearing before Judge Conger in which the lad supplied the almost-alibi. Whenever an expert “relies” on something as a basis for his or her opinion, that “something” becomes potentially available to the jury.
For the potential gain
involved, the defense is paying a very high price indeed. Even if the jury
believes, for example, that Hans’ son unambiguously testified that he saw Mom
disappear though the door of the
We also learned this morning that Hans will not testify today. Recall that the court is not in session tomorrow. This gives the defense team the entire weekend to prep their client. They will need it.
REISER'S SON WAS CONFUSED AND ...
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Reiser 2-28 PM
Dr. Fraga’s testimony occupied the entire day.
Cross examination by DA Paul Hora began at , first establishing that Dr. Fraga almost always testifies for the defense (a standard attempt to show a defense bias that is usually disregarded by jurors).
I’ll return to the DA’s cross examination below.
At the risk of drastic oversimplification, Fraga confirmed what most jurors knew intuitively, to wit: Child witnesses can be influenced by the tone, contents and context of their questioners.
A great deal of time was then consumed with a discussion of the differences between Asperger’s syndrome and a narcissistic personality. That whole discussion was problematic and I suspect that this jury knows it. We have the family shrink who knew little Hans but failed to make a definitive diagnosis, and now we have the hired gun shrink who has never examined Hans, yet is willing to discuss why the family shrink was wrong.
I also strongly suspect that the jury is on the common sense page, here – that all those ordinary, non-clinically significant variations in the human personality, qualities like “social”, “asocial”, “socially awkward”, “cold”, “hot tempered” and so on, are well within the competence of ordinary people to detect and discuss without clouding the issue with clinical jargon or DSM-IV clinical labels that really describe much more extreme cases.
Hora’s cross examination was not extensive, but he made some points:
Recall that Hora called the Reiser boy with a disclaimer that the boy’s testimony was problematic, so the prosecution has lost no credibility here.
On cross examination, Dubois made “R…”’s testimony worse when he walked into a zinger. He asked a question that prompted “R…” to say that his account of Dad carrying that Mom sized object down the stairs (illustrated in the subject drawings) was not a dream: “I was awake.” As I predicted, DuBois would have to spend the rest of the trial trying to figure out how to undo that damage.
Dr. Fraga was the defense’s repair instrument.
By that measure, DuBois has weakened the credibility of both the good and the bad parts of the boy’s testimony, leaving his client with a further compromised, almost alibi and a little boy’s chilling image. Whether "Dad on the stairs” is depicted as a dream, a fantasy, or a confused memory, that image will align itself deep in the mind of a typical juror with another chilling moment in the trial. Recall when a former OPD officer -- who had seen the anger in Hans eyes --warned Nina to get a gun.
The Reiser case inhabits that borderland where some jurors see only the strong suspicion of guilt and others see the virtual certainty of guilt. All this comes down to a simple psychological fact: Reasonable doubt is not the same in every case. The psychological dynamic of a case, the personality of the defendant, the haunting images of a child or the warning of a concerned cop can expand or contract what reasonable doubt means to any given juror.
Hora finished his cross today, but Bill DuBois was unable to conduct redirect examination by the time the court recessed. Whether the jury will see Dr. Fraga on Monday, or a DNA expert or Hans is anybody’s guess…
Judge Goodman acknowledged the loss of Judge Al Delucchi who passed from this world Tuesday at the young age of 76. Those of us who spent most of our careers in and out of that courthouse by the lake knew and loved Al Delucchi. He was one of a kind and we’ll all miss him…