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Link to the Print
Version of this piece: http://jaygaskill.com/ReiserReinterred.htm
San Francisco
Chronicle story link: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/07/09/MNDT11LOTI.DTL
San Jose Mercury
News story link: http://www.mercurynews.com/help/ci_9817337
Henry
Lee’s SF Gate Blog link: http://www.sfgate.com/cgi-bin/blogs/localnews/detail?&entry_id=27981
NINA
Exhumed,
REISER
“RE-INTERRED”
PRISON
TIME PENDING
WAIT
UNTIL AUGUST 13
Hans Reiser will soon be on his way to state prison for
murdering his young wife, Nina. Some
questions remain, but one of them is not whether Hans is guilty. His cooperation in recovering Nina’s hidden
remains has settled the “who-done-it” issue for all practical purposes.
Nina’s body has been recovered and identified. The prosecution has affirmed that it stands
by the 2nd degree murder deal with the defense – for now. I would expect Judge Goodman to go along with
the arrangement unless the prosecution backs out. Only materially changed circumstances, such
as additional evidence demonstrating substantial premeditation, would likely
derail things at this point (although I note that Judge Goodman has announced
additional conditions – see below).
Unless, of course, a wild card shows up on scene.
well… a wild card did show up this morning
when a new attorney surfaced in Judge Goodman’s courtroom. John Fuery, Reiser’s old divorce lawyer, arrived – papers in
hand - seeking permission to represent Hans from this point forward.
I believe that Fuery has
been in limited contact with Reiser for some weeks. He reportedly now has the
defendant’s support in: (a) rejecting the pending1368 motion (filed by Dubois, alleging
Reiser’s incompetence); and (b) substituting Mr. Fuery
as counsel of record.
As I indicate below, the 1368 motion had to be
disposed of before any deal could be implemented; after all, Reiser needs to be
ruled competent to agree to any deal.
It was unclear whether Fuery
(not a criminal defense specialist) could really do anything for the defendant
at this late date other than complicate the record on appeal. When the judge took the bench, he asked Hans
directly if Dubois and Tamor were still his
lawyers. Hans replied, “yes”. Goodman: And not Mr. Fuery?”
Reiser confirmed. The wild card event
was essentially over.
Then Judge Goodman took up the 1368 matter. Dubois promptly withdrew the motion. Out of an “abundance of caution”, Judge
Goodman stated for the record that “the court has absolutely no doubt” about
Reiser’s legal competence under 1368 PC, and based his “finding” on his own observations
of the defendant over the course of the trial.
After a long explanation, Judge Goodman outlined the
pending deal, one that he expects to be “ironclad” before he would assent to
it.
“The court has to be convinced that the deal is
ironclad, that the defendant waives his appellate rights, both state and
federal habeas corpus. Quite frankly, based upon the court's observations of
Mr. Reiser, I will not accept a deal until I will be convinced he won't able to
(engage in manipulation).”
THERE IS A ‘CONTROL DATE’ OF
More comments follow the Exchange Section
An Exchange
What follows is a recent email exchange with someone
who has raised many of the other lingering issues and my reply, supplemented
today with a “final” observation or two.
GKG wrote:
Dear Mr. Gaskill,
I have a few
questions regarding the Reiser case and law in general, and I suspect they can
be answered from a single philosophical principle.
I can understand how
everyone should have access to counsel for any legal procedure. I wonder
however how a lawyer, in this case Bill DuBois, can
defend - versus represent - a guilty client. Do lawyers lie? Do they know their
clients are guilty and plead innocent anyway?
I recall a position
attributed to Alan Dershowitz from the Von Bülow trial that he never wanted to know if Von Bülow was guilty. Why? Did Bill DuBois
know? From the SFGate blog,
he struck me as an intelligent man and sufficiently experienced to know a lie
or a set of lies when he sees them. Do lawyers keep representing guilty clients
that want to perjure themselves, or do some of them walk away from a case such
as that?
I read the SFGate blog of the trial and saw
this one person who was bigger than life, Paul Hora,
fighting for justice. A year earlier I'd read Reiser's story in Wired, and
figured there was no way anyone could convict him. By the end of Mr.. Hora's closing rebuttal, I couldn't see how anyone could
let Reiser walk free. Mr. Hora made both a strong
logical case against Hans Reiser and for Nina Reiser, and at the same time
personalized it. Now I read Mr. Hora was involved in
the sentencing bargain. What I find confusing is that Reiser killed his wife
and just lied for 11 days on the stand. The jury found him guilty of first
degree murder, and now administratively he may get a deal with a reduction to second
degree murder. How? Sure, he'll still be in prison for at least 15 years, but
is justice still served? I can appreciate Nina's family and friends in this, now
that they have Nina's body. In 15 years he could walk. To add a bit of a
chiller to that, Nina still lives in the genes of their two children, a fact
that Hans will never forget.
Thanks in advance for
any insight you might provide. I enjoy your blogs,
and respect your views.
Jay Gaskill wrote:
G…
Here's the short version of a long answer.
A physician will treat a killer who was shot by the
police. It’s a profession and what
professionals do.
As to the 'lie' element. One argues from the evidence presented in
court, but one does not knowingly present false
evidence.
A client, however, has an absolute right to
testify. That presents occasional conflicts,
the resolutions of which would fill volumes of legal ethical theory. While many criminal practitioners may not always the best
example of professionalism, there is simply no way at this distance to second
guess Bill Dubois.
Bill had a very difficult client. I’ll leave it at that….
JBG
More
Comments
THE COMPETENCE ISSUE
The court would have been unwise to sentence Hans Reiser
– deal or no deal – without first finding, on an appropriately developed
record, that Han Reiser is not incompetent. Failing to do that would have created an
unnecessary appeal issue. The record is replete with client non-cooperation
issues; therefore an appellate court could draw the inference that if Reiser
was thought by counsel to be incompetent on June 30, why not earlier – during
the trial itself? New counsel, John Fuery (who was not allowed to represent the defendant),
is alleging that Reiser is fully competent.
That presented the opportunity for Judge Goodman to put the competence
issue to rest. As of this morning,
Judge Goodman has found Reiser competent based on Dubois having withdrawn the
allegation and based on the court’s own observations of the defendant over time. Prudence would require something more –
especially to bolster the appellate record – but the court has made the right
decision on the merits. There may be
other opportunities to firm up the record.
WHY THE DEAL
There are four factors that may
explain why the second degree murder deal was agreed to by the DA:
(1) The DA was sufficiently concerned about the case
against Reiser before trial that a plea to voluntary manslaughter was offered –
and almost accepted.
(2) As G points out, the DA got lucky at trial when Hans
testified. Without his sorry performance
on the stand a conviction might have not been forthcoming.
(3) The case for premeditated murder – supporting a first
degree finding – was so weak that most expert observers expected a second
degree murder conviction.
(4) As long as the body was never discovered, lingering
doubts would fester and even affect the inevitable post conviction appeal.
Think, for example, about all the loose-end issues like those relating to Sean
Sturgeon.
But…
when Hans produced the location of the body, the prosecution received a
forensic benefit over and above consideration for the surviving relatives and
friends of Nina Reiser.
Now,
most of the appeal issues (certainly those relating to shadow suspects like
Sean) effectively disappear. Not
all trial error results in a reversal of conviction, since many can be deemed
“harmless error” by the Court of Appeal.
Hans’ belated cooperation has virtually eliminated the practical
prospect of a reversal on appeal. In
addition, Judge Goodman has added the requirement that Hans waive all his
appellate rights before he will get the benefit of a 2nd degree
sentence. That will require some further
persuasion, I suspect, and a more careful assessment of the defendant’s
competence…
JBG