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Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill
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
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
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.
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:
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….
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…