ALL POSTS IN THE RISER CASE, PART II
January & February 2008 in Chronological Order
Introducing & Reprising - REISER
ON TRIAL
PEOPLE vs. REISER
THE CASE SO FAR…
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
Festival in
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.
On
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
the
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
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 .
JBG
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.
BACKGROUND
Nina was last seen alive (by
anyone except her killer) at approximately
What happened between
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
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
Recall that
two days after Nina’s last visit, on Sept 5, Hans gets a call from his mother
at around
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.
Was the
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
COMMENTS
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.
JBG
Consistent
with Innocence?
The Reiser trial resumes
in
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
classic
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.
COMMENT
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.
Stay tuned….
JBG
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.
JBG
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…
JBG
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.
COMMENT
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?
Stay tuned…
BLOOD BETRAYAL
A print version of this piece is posted at
http://jaygaskill.com/blood.htm
SCHEDULING NOTES
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
the
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
the
* 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….
STAY TUNED…
JANUARY 22
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
Blood
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
TODAY’S TESTIMONY
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
of the
* A 9-17 U-Haul receipt for a
trailer –
* A receipt for an overnight
stay in
* 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
ADDENDUM
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?
Stay tuned…
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
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...
JBG
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...
OTHERWISE...
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?
We’ll see…
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.
JBG
Reiser out of control –
Chapter Two
Wednesday
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.
JBG
Postscript - End in sight
The Reiser murder trial
recessed today at
Stay tuned….
WHAT IS GUILTY BEHAVIOR?
Thursday – from a remote
location…
As of
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…
JBG
THE CASE RESUMES WEDNESDAY
TO ACCOMMODATE DA PAUL HORA, WHOSE WIFE JUST HAD A
BABY.
JBG.
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
QUICK HIGHLIGHTS
So far today (
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…
Stay tuned…
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.
CORRECTION
The case resumes MONDAY.
Still no knockout blow….
JBG
HEAD'S UP
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...
JBG
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?
JBG
OUCH!
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:
OPD criminalist,
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 enab