The strongest arguments

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The Hans Reiser Murder Trial

THE STRONGEST ARGUMENTS OUTLINED.

For the Defense

[Assume that the defense spends the necessary time undercutting the circumstantial evidence against Hans, by providing all the plausible alternative innocent explanations, then emphasizes into the great difficulties Hans would have had pulling this off, given the tight time frame and the proximity of his kids.]

THE DEFENSE TRAP

DO NOT

RELY ON YOUR

VERY WEAKEST ARGUMENT

I still hold the opinion that Bill DuBois needs to broaden the attack on the prosecution case to prevail. His theory, announced in the opening statement phase was that “Nina is a bad person. She is greedy and manipulative. She has abandoned her children and her life. She has cleverly framed Hans. She is still alive in Russia.”

Surely, by now the defense team has figured out that few jurors (possibly no jurors) will buy this line and that, by pinning the defense down to one, the whole game is at risk. I believe this will be fairly easy to do. Having destroyed that single, fragile theory, the DA will then have a clear path to conviction. He will need only to argue: If you reject the defense theory of the case, that “NINA IS THE BAD, ABANDONING MOTHER, then only reasonable conclusion remains standing: HANS IS THE KILLER.

Given this trap, here is one way out for the defense. Notwithstanding the opening statement, the defense must now make:

THE VERY STRONGEST DEFENSE ARGUMENT

Everything that might point to Hans also might just as easily point to an explanation consistent with what we’ve been telling you from the beginning of the case: Hans is a bit off and a bit off putting, but he did not take Nina Reiser’s life, and nothing that the prosecutor has come up with in this long, long trial has proved that Nina is even dead let alone that Hans killed her.

Let’s try a “check the box” exercise: Nina is alive or dead: check a box.

[1] Alive? If you checked here, you have figured out that Nina fled because of her debts and fear of prosecution for theft. She had a large nest egg from Sean who loaned her more than $150,000. She will pay back no loans. Instead, she is making a new life for herself somewhere, not looking back, starting fresh. She hired someone to assist her and she got out of Dodge.

Did you check dead? If Nina is dead then you have four choices:

[2] Nina was killed by a boyfriend

[3] Nina was killed a Craig’s list stalker.

[4] Nina was killed by one of the many, many thugs and perverts who contribute to Oakland’s out of control murder problem.

[5] Nina was killed by Hans Reiser.

In boxes 2 though 4 you only have one problem: To explain the position and condition of Nina’s van. The explanation is simple. The killer was not a thief. He wanted to abduct Nina without leaving a sign behind. He followed her car, then chased her, causing her to speed up. He forced her over probably at gunpoint. He ordered her to put down her cell phone and remove the battery. He ordered her out of the car – directing that she leave everything behind except her keys, then he took her away, possibly raped her and certainly killed her. He disposed of the body without having the problem of how to do it with her children and her mother in law close by, and without worrying about the attentions of the police who were going to be predictably focused on the husband.

You have five boxes. But the DA wants you to check just one as if there were no reasonable possibility that a different box is the correct one. And he wants you to forget your doubts as if they were unreasonable, and they won’t return to haunt you in the middle of the night years from now.

He’s asking too much.

For the Prosecution

[Assume the DA does a crisp summary of the evidence. For the kinds of things that could be dramatized, got to my companion piece, “The Silent witnesses” linked at www.jaygaskill.com/TheSilentWitnesses.htm .]

THE PROSECUTION TRAP

There are several possible scenarios for Hans to have murdered Nina, then exploited his time windows to dispose of the body. But the jury will expect to hear about “the one true scenario”. The moment the DA goes there, he will call attention to the absence of evidence and open the door to reasonable doubt. The only choice is to come down hard on what has been proved, invoke common sense, and blame Hans for deliberately making detection difficult. In this, Paul Hora must rely heavily on Reiser’s inconsistencies, evasions and untruths on the witness stand as evidence that Hans is guilty.

THE PROSECUTION’S WEAKEST ARGUMENT

Both sides need to preserve credibility by avoiding overreaching. This is particularly true for the DA who is the representative of ‘the People”.

This jury is required to decide between first and second degree murder. First is very hard to prove in a case like this, maybe impossible. It would be tempting to argue that Hans planned the whole thing from the very beginning – a strong first degree theory. But that would set up a “first or nothing” mindset and invite an acquittal.

Frankly, this case presents the much more plausible picture of an unplanned killing, an impulsive blow followed by an “Oh sh.., what do I do now?” moment. Hans, in this scenario, then shifts into “cool, controlled Geek mode” and improvises the cover up.

The DA’s job in argument is to sell that picture as vivid and real.

THE PROSECUTION’S STRONGEST LINE OF ARGUMENT

This case is about common sense versus an arrogant asshole computer genius who killed his wife in a moment of anger and thought he was so much smarter than the rest of us that he could dispose of her smelly corpse, clean up after himself, and we dummies could never figure out what really happened.

Hans Reiser almost got away with it, but he slipped up.

He failed to notice the telltale bloodstain on the sleeping bag cover he hadn’t gotten around to throwing way when the police finally caught up with his car. And he failed to fully wipe off the bloodstain on the post in the Exeter house where he first assaulted Nina in a fit of anger. He didn’t count on a neighbor noticing him hosing down the driveway at the Exeter house. And when he threw away the corpse stained car seat where he had first placed Nina’s body and tossed that stinky interior trim, he failed to realize that he might have to reveal where he disposed of this evidence. So he was forced to lie to you, because he couldn’t afford to let you have those items tested for Nina’s body fluids. Hans Reiser has lied to you about a number of things because he is guilty of killing his wife.

Here’s the best possible reconstruction of Nina’s killing, given Hans’ cover-up

Motive: Nina held the keys to Hans children and the company he had built. She was torturing him. When he wanted to keep talking about the divorce, she just left.

Opportunity: There were no adult witnesses present when Hans finally snapped.

Means: As a black belt, Hans can kill with his hands. We can reasonably expect that his first blow was not fatal. But the assault, had Nina lived to testify against him, would have ended his life. So he finished her, wrapped her up in a bundle and took it to the garage and put the body in the CRX.

No one saw this because no one was looking. In spite of the layout and the sightlines, it is a fact that no witness even saw Nina’s van at the Exeter house. Therefore we can conclude that Hans was able to drive that van a short distance away from the house without being seen. Most likely, he parked it, just out of sight. As soon as the kids went to bed, he drove it to a place of seclusion (where OPD found it) and jogged back to check on the kids. Estimate an hour to ninety minutes for that, well within the time window.

Now we can conclude that Hans knows his the kids sleep patterns. And we can infer that he took advantage of them. Yes he took risks. Yes he was desperate. So when the kids were tucked in and down for the count, Hans moved the body -- so it would be safely hidden. That bought him time to find a more secure grave, if one were needed.

By the time his mother came home, Hans had hidden the worst evidence. But now that she was home, Hans could not risk doing more crime scene cleanup at Exeter and that is why Hans missed cleaning up the post in the entryway.

We all know that Nina is dead because she loved her children enough to fight for them against Hans, because she would never suddenly leave her boy, girl, cash, purse, contact lenses, credit cards, passports, her new job, and leave the van parked as if abandoned in one of those disasters where everything is like “dinner on the table” But Nina is not there. Nina did not drive the van. Hans drove it, and he locked it from the outside with Nina’s keys.

And we know Nina is dead because Hans knows it. While boyfriend Anthony was circulating fliers, Hans was hiding his CRX. Remember when Hans was in jail, and the TV news said a body had been found in the Oakland Hills? Until he heard the body was a black man, Hans was riveted to his own private horror movie; all his genius plans were coming unglued

Well, Hans Reiser’s relief was way premature, because you have common sense.

THE FOUR FACTORS THAT MAY TURN THE CASE

Lingering doubts about Nina

The defense has a lot riding on this. Twelve jurors probably believe that Nina is dead, but are they sure enough of that to convict Hans beyond a reasonable doubt. Fortunately for the prosecution, Hans has helped the case against himself in several ways. I think the ultimate effect of the ‘missing body’ problem is to expand – for several jurors – what reasonable doubt means. For these jurors, had a body been found in the Oakland Hills, for example, the remaining doubts about whether it was “proved’ that Hans did it would be dismissed as unreasonable. As it stands, that mental exercise is not so easy, unless jurors are convinced that Hans has lied to them on the witness stand. Jurors can be very unforgiving about that.

A Dark View of Hans

Has all the talk about Asperger’s Syndrome worked its magic? Has Hans, by self-deprecation (‘I’m sometimes an arrogant asshole’) taken the sting out of the fact that Hans sometimes is an arrogant asshole? As I said at the very beginning, the real question in this case will turn out to be whether Hans seems like someone who was physically and emotionally capable of killing hiss wife. Even from this distance I can tell that, at least some jurors are prepared to believe that, indeed, Hans was capable on both levels. In fact, the emotional and social disconnections in his personality that the defense has sought to ‘clinicalize’, may well undercut the ‘Hans was too nice and sensitive to have done it’ line of defense. Ultimately this is a question of personal chemistry, hard enough to judge if you are in that courtroom day to day, and I was not there.

Attorney Credibility

Here the DA retains a slight edge and the defense is in trouble because of its fixation on the “bad Nina” line announced at the beginning. But the defense has a wedge and defense has its own vulnerability. They are the same: its name is the Sean Sturgeon mystery. Why –all jurors will ask – aren’t we hearing more about Sean Sturgeon? If the failure to produce more evidence on this dangling mystery is blamed on the prosecution, then the jury may reward the defense by expanding the generous sweep of reasonable doubt.

A Sense of No Stone Unturned vs. Vital Evidence Withheld

Except for Sean Sturgeon (a person I would be tempted to call fro the defense, hoping to sew seeds of doubt no matter what he said or didn’t say) the advantage here is with the prosecution because of the ‘Hans concealment pattern’. Jurors are likely to connect the dots not the doubts, if this is the focus. Consider the following sequence – Hans concealed, destroyed or tried to conceal or destroy the following: The CRX, The CRX front passenger seat, the CRX trim, something worth hosing down inside the CRX and in the driveway; initially that Nina was missing from his mother, the hard drives later in delivery and only partly examined, his crime books, his very location and movements, his practice of disconnecting the cell phone battery, and more…. The jury may add one more significant item to the growing list: Nina’s body.

When I first commented on this case, I observed that the Reiser trial looked like a closely balanced piece of litigation with a slight tilt to the prosecution. At the end of the day, little has happened to change my original assessment and the outcome of this trial remains a crapshoot.