May 11, 2008

See you June 3

 

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The Out-Lawyer is away until June 3.

 

Stay tuned...

 

JBG 

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May 07, 2008

Hans Reiser and the Platypus Genome

 

Wednesday, 7 May 2008 18:06 UK

 

 

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THE PLATYPUS AND DNA 

 

Just in from BBC news.
[Note: All of the excerpted material in quotes below is Copyright 2008 by BBC News.]

 

Link:

http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/science/nature/7385949.stm

 

 

“Scientists have deciphered the genetic blueprint of the duck-billed platypus, one of the oddest creatures on Earth.
“The egg-laying, venomous, duck-billed platypus...
“The animal comes from an early branch of the mammal family, and like mammals it is covered in fur and produces milk. However, it lays eggs like a reptile.
“Dr Chris Ponting, of the MRC Functional Genetics Unit at the University of Oxford, UK, is one of more than 100 researchers from the US, UK and Australia, who took part in the study. He said the platypus was chosen because of its unusual features.

“The platypus is so strange that it was considered a hoax when sent from Australia to European researchers in the 19th Century.

“’It has a very weird appearance because it's a mishmash of the bill of a duck, the eyes of a mole, the eggs of a lizard and the tail of a beaver,’ Dr Ponting told BBC News.
“Dr Mark Batzer, from Louisiana State University in Baton Rouge, who also worked on the study, said ... ‘One big surprise was the patchwork nature of the genome with avian, reptilian and mammalian features,’ he added.

“They have acute sight, but only open their eyes above water.

“Underwater, they rely on touch and a special sense called electro-reception that allows them to detect tiny changes in the electrical field generated by their prey.”
[][][]

 

Now we know where to look for the body.

 

[][][]

 

More seriously: In the absence of a post-conviction plea bargain (a highly unlikely scenario), there will be an appeal, and I believe that appeal will include allegations of ineffective assistance of counsel. 

Allegations of this sort are common, but rarely succeed. 

If the expected “IAC” allegations (ineffective assistance of counsel) are based on Bill Dubois’ selection of the “platypus mitigation” argument, they will fail. 

In general, defense counsel is charged with the obligation to research the law and the facts, then to make informed tactical decisions in the case, after having given due deference to the client’s wishes.   

A bad tactical decision by the defense – as revealed by the fact that it has failed – is not, in itself a basis to overturn a conviction, as long as it is informed by competent factual investigation and legal research and the decision is one that a reasonably competent defense attorney might make under similar circumstances. 

It is premature, of course, to second guess the Reiser appeal – after all, much depends on events and decisions not yet part of the public record.  But the defense was placed in a complicated, almost impossible situation by nature of the evidence in the case and the unreasonable demands of the client.

This was a situation in which almost any line of defense would present pitfalls, and therefore would be subject to after-the-fact criticism.  It is a mistake to simultaneously attempt to mitigate the culpability of the killer and to deny criminal responsibility.  But … making that attempt in a criminal case is not, ipso facto, “IAC”. 

 

This may well be a case of “ineffective assistance of client.”

Hence this following free advice to Mr. Reiser:  Leave the “lawyering” in your case to the lawyers.  This advice is based on a strong lesson, one that applies to my fellow attorneys, to wit:  Even a lawyer who represents him or herself has a fool for a client.

 

 

JBG

 

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April 30, 2008

REISER ENDNOTE

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People vs. Reiser -- Endnote
The Appeal

Subject to the vagaries of the legal process, Reiser’s sentencing date is July 9.  I would expect that to change.

 

Barring a post conviction plea bargain (we’ve all heard speculation along the lines, “What if Hans trades the body location for leniency?”- this a very, very unlikely scenario in my opinion), there will be a post conviction appeal.

 

Here are the rules:  The defendant needs only to file a single piece of paper with the court, a “Notice of Appeal” and the rest is automatic.  DuBois will not handle the appeal.  If Hans does not retain an appellate attorney, one will be assigned him from a panel. The appeal will be decided by the California Court of Appeal; this is an intermediate appellate review panel, not the California Supreme Court.  [The California Supreme Court can and often does refuse to review a Court of Appeal decision.]

 

But nothing will happen until the entire record of the case is certified and transmitted to the C of A.  At that point everything that has “officially” happened in the case, both in public and in Judge Goodman’s chambers will be part of the public record.  Typically, those revelations are so far downstream and the public’s attention of so fickle, that the case drops into a black hole until the appeal is actually argued and decided.  That could easily be as late as 2010.  If you thought that parts of this very long trial were boring, try wading through the transcripts on appeal!

 

Here’s the deal:  If a fact or event is not reflected in the official record it just didn’t happen as far as the appeal is concerned.  This means, for example, that if the so far mysterious figure of Sean Sturgeon is to become a viable appeal issue, the official record may need to be augmented.  The usual vehicle for this is a defense motion for a new trial, because new information can be appended in the form of declarations, affidavits or testimony. 

 

So far I have heard only rumors about this Sean Sturgeon fellow.  He was initially considered a possible suspect in the case.  When interviewed by the police, he claimed credit for several, otherwise unidentified homicides, emphatically not that of Nina Reiser.  He claimed, as an alibi, that during the critical hours on September 3, 2006, he was helping the homeless. No trace of his DNA was recovered from the Exeter house nor from the CRX, nor from Nina’s van.  It is unclear whether and when police ever tried to check out his alibi before ruling him out as a suspect.  Reportedly, he still cares for Nina and is furious at Hans for killing her.  It is unclear why is so certain that Hans did it.  From all reports, it seems that Sturgeon was available as a witness to both sides.  I suspect that he wasn’t called as a witness because he was radioactive, holding potentially damaging testimony to each side of the case.

 

Why did Judge Goodman apparently rule out references to Sean’s “confessions”?  The law is fairly clear on this.  A voluntary confession to a crime is inadmissible against the person confessing without independent evidence of the crime itself. And as to a third party, the statement is inadmissible as hearsay.  The actual evidentiary value of Sean’s alleged statements is close to zero, but the potential tendency to mislead a jury is huge.  Without knowing more, it is difficult to fault Judge Goodman’s ruling. 

 

Having acknowledged all of that, I must add my own take: Knowing the dire trouble this defendant was in, given the weight of the circumstantial evidence surrounding him, I would have been strongly tempted to call Sturgeon to the stand as a hostile defense witness anyway.  Sometimes you just have to roll the dice.  At a  minimum, the jury would have gotten to see Sean in person, and would have heard him deny killing Nina, offer an alibi, and then respond to the “killer question”, if allowed, to wit: “Sir, when you were interviewed by the police as a possible suspect in this case, did you or did you not admit to other murders?”.  Better yet, Sean would be forced “take the Fifth Amendment” in front of the jury. 

 

So we’ll be watching the defense pre-sentencing motions in this case with great interest.

 

JBG

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April 29, 2008

Reiser - The Postscript

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The People of the State of California vs. Hans Reiser
Postscript
Hans Raiser will be sentenced to an indeterminate life prison sentence with a parole date far, away. 

Bill DuBois’ most effective legal move at this point will be a modest one - a motion addressed to Judge Goodman, as the “thirteenth juror”, to reduce the conviction from first degree murder to second degree.  Although granting such a motion is within the court’s discretion, I offer no opinion as to the merits or the likelihood of its success. 

I would anticipate a defense motion for a new trial, and that it will be denied.  We many learn from the defense motions, however, why the jury did not hear more about the mysterious Sean Sturgeon.

Paul Hora’s most effective argument was this - only the first line was borrowed or paraphrased and the rest was original:

“A man's actions are the mirror of a man’s mind. If he eats, it’s because he's hungry. If he sleeps, it's because he's tired. If he lies, it's because the truth is damaging. If he destroys and conceals evidence, it's because it can be used against him. If he covers up a crime, it's because he committed the crime. If he acts guilty, it’s because he is guilty. That’s what this evidence tells us.”

 

I have great confidence in the jury system and in a good jury’s almost uncanny ability to locate the truth in the fog of litigation and to detect a liar’s deceptions. 

In the end, Hans Reiser was undone by hate.  Not, as some have suggested, the jury’s hate for him (I doubt that was even the case) but his ill-concealed hate for his wife, Nina. This was a hatred so powerful that it leaked through and even warped the defense strategy in the case. In the end Hans’ hatred for his wife may have seduced Bill DuBois initially to outline the “Nina is evil” line of argument.  That position was the ultimate undoing of the entire defense strategy, in my opinion; it was a “poison pill” that robbed the loveable platypus of all its droll charm, and drained the defense of its last shred of credibility.

Kudos to the San Francisco Chronicle’s Henry Lee and to Wired Magazine’s David Kravets:  Their ongoing coverage of this case was indispensable to the rest of us, and to the public record of this very interesting and very aggravating trial.

 

JBG

 

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April 28, 2008

MURDER ONE - REISER IS CONVICTED

MY FINAL COMMENTS ON THIS TRIAL WILL FOLLOW SOON...

JBG

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April 22, 2008

DONE!

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DONE!

Paul Hora wrapped it up today, spending most of him time on Hans’ state of mind and the damage done to the family when he killed Nina.  The DA always has the last word.

Some excerpts:

Hans’ hostile e-mails to Nina were reviewed:

·        I don't think you are evil because you are shrewd, I think you are evil because you can't help what you are.

·        The problem here is that you think you can smile at me and I will forget. Those who anger slowly, cool slowly Nina.

·        It is June 1941, and you are the Nazis. And you think we will not suffer the necessary amount to defeat you. We will.

Hora made several points, among them these:

·        What kind of threat is that? 'Whatever it takes' is what he's saying. He just hated her.

·        Not only did this guy hate her, but when you got a phone call that she's missing, the first thing he said, 'Call my lawyer,' not only is the last place she was, he hated her, call my lawyer, he went down and hired a criminal defense lawyer. Not only that, his car's missing the front seat, missing the back part of the car, that her blood is there, each fact, as you consider each fact, and you think about that, that blood, you add them together, it has more and more significance -- that's the power of circumstantial evidence.

·        You do that analysis by looking at the entire puzzle because each piece has so much more significance when you consider all of the other evidence."

·        He was hiding that CRX. He was desperate by the 17th. The police searched his house. He knew they were looking for it. The heat was on. And he was desperate to hide that, way out in Manteca or Stockton. He must have passed 100 storage lockers between here and Manteca and Stockton: Livermore, Pleasanton, Dublin, Castro Valley, Hayward, Fremont, San Leandro, Oakland. They're everywhere. Storage lockers everywhere and, 'Oh, it's cheaper out there.' Yeah right. Ridiculous lies. Excuses. It's not the reason. And the reason we know he was so desperate to hide the car is because that same afternoon, he threw the seat out. That was his mission that day. That's what he did.

·        A man's actions are the mirror of a man's mind. If he eats, it's because he's hungry. If he sleeps, it's because he's tired. If he lies, it's because the truth is damaging. If he destroys and conceals evidence, it's because it can be used against him. If he covers up a crime, it's because he committed the crime. If he acts guilty, it's because he is guilty That's what this evidence tells us.

Hora closed on a sentimental note.  He read from a children’s “bunny book” found in Nina's car, about a mother’s love for her child; he showed the jury a birthday video when Nina  kissed her son; and he emphasized the callousness of anyone who would snuff out the loving relationship between Nina and her children.

All this was cumulative in a sense, but part of the DA’s larger task – to motivate jurors to act against any remaining qualms and doubts and to return a conviction.

The jury will deliberate as soon as judge Goodman concludes the instructions.

 

JBG

 

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April 21, 2008

Hora and that Venomous Platypus

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Hora and that Venomous Platypus

 NOTE -- PAUL HORA CONCLUDES HIS ARGUMENT TUESDAY AM. THIS IS FOLLOWED BY JURY INSTRUCTIONS & DELIBERATIONS BEGIN... 

  

Bill DuBois’ Avuncular Swan song

The defense argument ended shortly after the jury returned from lunch with an institutional appeal for reasonable doubt as a way of keeping the government honest. 

Bill Dubois returned to the testimony of little R... as unduly influenced by his Russian interviewers and even made a reference to the administration's use of Colin Powell’s credibility to sell the weapons of mass destruction case to the UN.  [It is unclear whether he really meant to equate little R… with the former Secretary of State!]

DuBois finished on a patriotic note: “You tell the government it’s wrong when it’s wrong, so that the people who have given their lives to preserve this nation have not done so in vain.”

This was a “feel-good” ending to an argument that spent a great deal of its force earlier when DuBois had to work hard to regain his lost credibility with the jury. 

This was time that would better have been spent trying to drive a hole named Sean Sturgeon through the surrounding cloud of suspicion. 

Paul Hora’s Fierce Rebuttal

Paul Hora began by telling the jury that the male platypus has a poisonous spur, capable of hurting people with its venom. [Reportedly the jury was amused.  It’s hard to escape the impression that, while jurors dislike the defendant and have sympathy for defense counsel, they tend to like and trust Paul Hora.]

Then Hora turned to the defense portrayal of Hans as somehow disabled. He said that Asperger's disorder is no excuse for murder, then went over Hans Reiser's life achievements:  As a world class computer scientist, as having held positions with Microsoft, Sun Microsystems and IBM; as a man who developed an important computer file system for LINUX, the open source operating system, as the founder of NameSys, as securing multi-million-dollar contracts for his company; as earning a black-belt in judo, marrying Nina, a Russian physician, and starting a family with her in the US..

"He's quite an accomplished guy, if you think about it.  And now that he's on trial for murder, he's got a mental disorder. That’s what the defense is saying.”

Hora essentially demolished the claim that Nina had stolen from Hans by quoting Greg Silva, the divorce attorney. Hans thought Nina stole from the company. But “It’s all just talk. Stick to the evidence. There's no evidence of it? It didn’t happen.”

Then Hora essentially castigated DuBois for presenting three inconsistent defenses, first that “Nina is alive and hiding in Russia” then “Nina is the victim of foul play” and finally, Plan C -  “Maybe Hans did kill Nina but it’s manslaughter, not murder.”

Hora approached the Sturgeon issue obliquely. He asked the defense why, among other things, Dubois didn’t call Sean Sturgeon as a witness:

“Why didn't you? If you thought anything was missing that could help your side, why didn't you call that witness? You have the power to subpoena just as I did. You can bet your boots that if the defense had anyone else who had information, they would have called those witnesses or presented evidence. You can bet your boots.”
DuBois objected: “We don't have the burden of proof.”

Hora then ridiculed the possible defense theories.  There was no evidence that Nina had planned to meet Sturgeon or some unknown CraigsList suitor.  There was no evidence that “the ghost of Fernwood Drive killed Nina”.

Hora asserted that both boyfriends – Sturgeon included – had been cleared.  This was a point at which the defense might be expected to stand up and object if Hora’s assertion was not supported by the evidence. But DuBois did not object.

When we examine the flow of argument here, it is hard not to remember DuBois’ earlier concession.  And it is easy to see how its tends to undercut his assertions of possible third party culpability and how it takes the sting out of any objection he might now make.  This is yet one more object lesson about why the defense really can’t have it both ways…

Per Hora, this was the transcribed cell message from Nina's new boyfriend-- “Sean and I have been searching and working together, trying to figure out what we can do to get a hold of you somewhere. And Ellen and I, Ellen and Sean -- and everybody -- you get the idea. I love you and I really want to see you again. And the kids want to see you again. Everybody wants to see you again.”

Hora finished the day by contrasting the evident hate that Hans had for Nina with the love that everyone else showed for her.

Hora was not quite finished with his entire argument at this juncture, reserving additional argument for tomorrow.  The case will go to the jury tomorrow after instructions from the court.  And that, whatever Hora has to add, I am persuaded that he already has a majority of the jurors with him…
 

“Final” Comment

Because this case is a bit of a mess, not to mention a puzzle, because we don’t have a dead body, and because there really is somebody named Sean Sturgeon about whom the jury has been told only a little, I can’t discount the possibility of a hung jury. 

But as the trial dynamic has now developed, I would a bit surprised if it turns out that there are more than a couple of defense holdouts on the jury. Given the defense concessions, one or two holdouts probably won’t stick to their guns long enough to drive this case to a hung jury and eventual retrial.

If there is an acquittal, I confess that – while at the beginning of the case that was a real possibility, if it happens now – I will be flummoxed.

And a voluntary manslaughter conviction at this point would be a gift to the defense, although stranger things have happened in Oakland courtrooms over the years. 

While there is not enough evidence (at least in my opinion) to make a first degree finding very likely, I can’t rule that out either because of this jury’s possible reaction to the calculated nature of the cover-up.

Assuming a conviction for anything, there are substantial punishment differences at stake. The punishments for murder and voluntary manslaughter (without special victim, weapons or prior offense punishment enhancements) range from 3 years to more than 25 years. Not all of this is up to the judge, however.

Penal Code Section 190 provides:

  • Murder one - 25 to life in prison
  • Murder two - 15 to life in prison

Penal Code Section 193 provides:

  • Voluntary Manslaughter - A prison term for specific years - 3, 6 or 11 years. Here 3 years is the mitigated term and 11 is the aggravated one.  Absent a showing in mitigation or one in aggravation, the court is to select the middle term.

Both murder terms are indeterminate in that serving the minimum sentence doesn’t guarantee release on parole.  There are inmates still serving terms for second degree murder whose actual prison time approaches that for first degree.  In the event of a first of second degree murder conviction, the sentencing (following a pre-sentence report about a month later) is essentially out of Judge Goodman’s hands.  Probation is not an option, and the prison terms are, as we say, those “prescribed by law”.

A manslaughter verdict, however, would call on the judge to make a sentencing choice between three terms – 3,6,11.  Under these circumstances, it is very unlikely that the mitigated term of 3 years could be justified, so the realistic choice would be between 6 and 11 years. 

A FOOTNOTE:

If there is a conviction in this case, I would blame Hans Reiser, not Bill DuBois. I am reminded of a mentor, long, long ago, who described the defense function (in most cases) as alchemy; we are charged to turn fecal matter into gold.

From this distance it appears to me that all of the defense problems – including the initial selection of the “Bad Nina” defense – were less “self-inflicted” than “Hans dictated”. 

As I’ve told new trial attorneys-in-training over the years, there is no circumstantial evidence case so weak that a testifying client can’t snatch defeat from the jaws of victory in a few improvident minutes, hours or days on the witness stand. 

To my web audience overseas, I would add that my faith in the American jury system is undiminished. It remains a marvel to me just how often twelve jurors are able to sort through the conflicting claims in a case, see though the “fog of litigation”, and arrive at the best approximation if justice that can be hoped for in a free society. 

We could do so much worse…

JBG

 

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