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November 29, 2007

Even Paranoids?

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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 Thursday....

Addendum at 6:30 PM Pacific.

The last witness of the day was the school principal.  Apparently some teachers were concerned that R…, the Reiser son, was too preoccupied with “violent images” and “robots” (sounds like those dreaded video games to me).  Hans apparently countered by saying that the boy was normal but that Mom was connected to the KGB, and was a good liar.

One wonders whether DuBois – who has darkly hinted at these shadowy Russian connections to the press – has anything more concrete to go on than his client’s version.  Sometimes the line between paranoia and real enemies can be thin indeed.  The KGB theory would be somewhat more persuasive if Hans had ended up in some dumpster.  Mess with the rogue remnants of the long disbanded KGB and they’ll frame you for killing your wife?  Naaa.

The courtroom is busy with other matters on Friday and Reiser’s trial resumes Monday.  

 

Reiser on Trial - Drip, drip, drip...

 

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And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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REISER THURSDAY –
CUMULATIVE TESTIMONY, LOOSE ENDS, AND ONE ZINGER

In ascending order of impact (not in order of time) the testimony was as follows:

Ho hum level…

An Alameda County Child Support officer confirms that Hans now owes more than $30k in child support.

Thanks, but we heard that once already….

A teacher at the children’s school testified that, in her opinion, Nina would not abandon her children – “Those kids were her life.”

A loose end tied up….

A Barnes & Noble employee, store records and the store camera corroborated that Hans bought the two “murder books” (police procedurals about murder investigations) that were found among his effects.  The sale was on September 8, 2006. [Recall that Nina went missing on September 3.] Reiser paid cash.

Obsessive Dad testimony…

About a year before the day Nina went missing, Hans complained by phone to the county child abuse hotline.  He claimed that Nina was suffering from a bizarre mental illness that caused her to complain about the children’s mental health (this was based on her assertion that too many violent video games had warped their minds), all to get attention for Nina.  This was – according to Hans – evidence that Nina suffered from “Munchausen by Proxy Syndrome”.  [Only a software guru with time on his hands could come up with that one!] He also complained that his son’s ear infection was neglected by Nina. One imagines that complaints like this are common during child custody battles.  Again, the jury is too sophisticated to assume that Hans was homicidal based on this stuff alone.

But Hans tendency to obsess does seem to be recuring theme….

ZING!

Former O.P.D. officer, Ben Denson, who saw the couple frequently during child exchanges at the police station said -

“He never put his hands on her but, you know, I could tell by the way he was looking at her, there was menace in his eyes…It was very hostile….I told her, ‘You need to get yourself a gun.’”

That had to hurt.

DuBois did the standard cross examination – designed to remind the jury that a police witness is probably pro-prosecution and so on, but the damage was done.  Most members of the jury will not believe that former officer Denson was imagining things or making things up just to support the DA’s case. 

But they will be sophisticated enough not to convict someone just because of inter-spousal hostility. 

However, the defense is gradually losing ground here on the character issue:

Nina is looking (at the moment) less and less like someone who would have voluntarily vanished from her children’s lives for a whole year, and --

Hans – while not yet portrayed as the homicidal character the DA would prefer – is looking just a bit more dangerous.

Faced with positive character evidence about Nina, DuBois asked whether it would change the witness’s favorable opinion if the witness learned that Nina was responsible for grand theft.  An objection to the defense question was sustained. 

What was going on?

There is – as of now - no evidence of Nina stealing anything, and – at least from the judge’s point of view – there may not be any.  Counsel may not ask a witness about “facts not in evidence” especially if there are never going to come in; to rule otherwise would allow a back door to inadmissible evidence or non-evidence. 

But it could be proper to ask a question like this if DuBois had good reason to believe that such evidence will later be introduced in the trial.  I assume that if the court had been made aware of such a pending defense witness, the ruling would likely have been different, e.g. – “I will allow the question subject to tying it in later.  If not I will then entertain a motion to strike.” 

My guess:  The defense has little or no credible evidence of the grand theft incident(s), other than the possible testimony of Hans, himself. Also: DuBois probably thinks he is better off having floated the “Nina is a thief” suggestion in front of the witness (knowing it will prompt an objection) instead of risking some clever riposte by the witness, such as:  “Even if it turns out that Nina Reiser has stolen money, it doesn’t change my opinion about Nina’s love for her kids, the dynamic between them,” etc, etc.

The takeaway point:  When an experienced police officer warns a wife to get a gun after taking a good look at hubby, and when the wife later turns up missing under suspicious circumstances, the warning takes on an unforgettable, almost nightmarish quality.  The bad images are accumulating.

JBG

 

 

 
 

November 28, 2007

Wednesday - Is Anyone Pursuing the Wrong Theory?

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And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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WEDNESDAY AT THE REISER MURDER TRIAL ---

ONE MORE NAIL /and/or/

IS THE DEFENSE RUNNING THE WRONG PLAY?

 

The Supervisor
Alameda County Supervisor Gail Steele, a dedicated public servant, the kind who conscientiously answers and even acts on her constituents’ letters and complaints, was a prosecution witness today.  It seems that Hans Reiser contacted her repeatedly – even though she was outside his Oakland district – for help in correcting the perceived abuses in the child custody system of the county (something the county Board of Supervisors can do little to change).  Steele, conscientious to a fault, listened patiently and Hans donated to her campaign.
This did nothing significant to affect the balance of the case.  An aggrieved father may or may not be a homicidal nut, but complaining to an elected official cuts neither way on that issue. 
There was some suggestion that Hans’ calls and emails to Steele’s office intensified just before Nina’s disappearance (and presumably slacked off immediately thereafter), but the chronology and circumstances are probably too fuzzy for the DA to make much of it.
Loving Mommy
Later this afternoon the jury heard from Ron Zeno who runs something called “Safe Exchange” a place where estranged parents pick up and leave their children.  Though innocuous, I suppose it has a sort of Berlin Wall flavor in a murder case.  Nina and Hans used Safe Exchange a  lot, apparently, and the owner, Ron, was clearly on Nina’s side.  The children always ran to her and, in his opinion, she would never abandon them.  This sort of thing is just opinion, of course, but it the kind of opinion that juries tend to trust because it accords with common sense and ordinary experience. 
PS
Is The Defense Committed to the Wrong Theory?
Again, I am increasingly of the opinion that the defense is losing on the “mom abandoned kids to vindictively frame dad” theory.  It just isn’t selling. 
A much better theory (dangerous because it seems to admit that there may well have been a murder) would be the following common sense approach: 
We all know that Oakland has a large and growing murder rate, and that almost all of the killings are by thugs, not well off software geniuses.  If you heard - without more - that Nina’s car was found but she was missing, what would be the first thing you’d think?  That some Oakland thug was responsible. And statistics would be on your side.  
But that promising line of argument appears to have been rejected, in advance, by the defense.  As I said at the outset, Hans Reiser is very much in charge of the defense. 
And that may be the problem….

JBG

 

November 27, 2007

The Reiser Trial: Tuesday Was Bicker Day

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The Bridge to Being Blog: http://www.jaygaskill.com/blog2/  

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And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
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Tuesday -

Bicker Day

 

Today, the jury suffered though direct and cross examination of the divorce attorney, Shelly Gordon, who represented Nina and (surprise) had a less than favorable opinion of Hans. 

This testimony must have been as dispiriting as looking at autopsy photos (no- there aren’t any), while far less relevant to the merits.  Everyone already knows that it was a bitter divorce.

The emerging picture is that Hans was a controlling personality (as if the jury hasn’t already detected that from the defendant’s courtroom behavior) and that he had a “myopic focus” on things. 

A testifying lawyer is often a nightmare witness and DuBois evidenced his frustration with Ms. Gordon’s run-on answers.  At one point, DuBois tipped his hand by complaining that attorney Gordon was “trying to put in information and material that we’ve moved to exclude.” That could only be a reference to Gordon’s negative assessment of the defendant’s character.  Recall that a defendant's character is not in issue unless the defense decides to rely on character as evidence of innocence.  The couple’s marital dispute is relevant to motive, however, and some character evidence is allowed to slip in for that limited purpose -- but not to show that the accused had a predisposition to kill, for example.


 

At one point, DuBois was rebuked by the judge: “…if you ask a question and you don't like the answer, it’s not her fault”.  This defines a bad day for the defense.  But in truth little harm was done as long as the gaping hole remains.

Much more to come…

 

JBG

 

November 26, 2007

Reiser: An Inch Forward...

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The Policy Think Site: http://www.jaygaskill.com
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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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Monday at  the Reiser Murder Trial 

AN INCH FORWARD, A QUARTER INCH BACK

Marnie Hunter, a fellow parent at the Montessori school where Nina also volunteered to help, today told the jury (7 women, 5 men) that Nina had volunteered to help at the school for three years; that she was a devoted parent; that she was loved by her children and that, in this witness’s opinion, Nina never would have abandoned them. 
The defense attempted to establish the dubious character of Nina’s putative boyfriend, Sean, but the witness (Ms. Hunter) knew nothing about his supposed “sadomasochism”.  If Bill DuBois produces no evidence on the point, he will have lost credibility; therefore I assume that there is some factual basis for the defense question, and that the jury will hear more about Mr. Sturgeon later.  If not, the defense will be in trouble.
 Ms. Hunter was asked about the issues in the Reiser divorce.  Unsurprisingly they centered on child custody and money.   Nina complained that Hans permitted the kids to watch violent movies and play violent video games.
I assume that this is a fairly sophisticated jury.  Few if any of them will be surprised by the elements of dispute in the divorce, or conclude that Hans is more likely to be guilty because of his taste in movies and games, or that Nina is more likely to be alive, having tried to frame her husband for a murder that never happened, just because she has fooled around with a bad guy boyfriend.

But – and this is the takeaway point from today’s session – almost no one on the jury will believe (from the evidence so far) that Nina was capable of feigning her own murder and abandoning her children for an entire year. 

By now, I suspect that most members of the jury are operating on the working assumption that Nina was a victim of violence, and they are actively wondering whether husband Hans was capable of killing her, and whether they will ever hear any evidence tying Hans to the disposal of her body. 
That “gaping hole” remains.
JBG
 

November 24, 2007

Reiser's Tears

As first Published on the Out-Lawyer’s Blog
&
The Policy Think Site ( http://www.jaygaskill.com  )
Copyright 2007 by Jay B. Gaskill, Attorney at Law

 

            Contact: law@jaygaskill.com

REISER'S TEARS

The Hans Reiser murder trial resumes tomorrow (Monday).
Among the various reports of the last session, we can glean several additional tidbits, two (or one) of them are possibly significant.
ONE
Grandma and other members of young R…’s Russian family did indeed try to influence his mind, firmly planting the notion that Dad may well have killed Mom.  Evidently the boy was looking on when a family member surfed the net for stories about the murder case. 
From my vantage point, this information will have less impact than the defense hopes, if only because jurors will have concluded – as did the authorities – that a disappearance of this kind is more likely than not to be the result of foul play and that the husband is the most likely culprit. 
Just as the jurors are keeping an open mind about the ultimate question – at least for now - they are not getting the picture of a son who is unreasonably convinced of Dad’s guilt, just very worried.  
From the prosecution’s perspective, the whole discussion tends to undercut the defense theory that Nina is hiding somewhere, yet has made no effort to contact her children. Few, if any, grandparents could get away with manufacturing the faux murder of a living mother and successfully hide the information that she is still alive from both of her children.  Even neglectful moms develop anguish over this kind of separation.  I suspect Nina could have avoided her own extradition to the states by coming clean. Once in Russia with her kids, Nina would have little to gain and much to lose by attempting to frame Hans.
It is R….’s obvious intelligence that makes Nina’s permanent disappearance more plausible.  If people were trying to hide Mom from him, it is very likely he’d pick up on it.
TWO
After cross examination of his son and when the session was over (and presumably the moment when Hans may never see his son again) courtroom observers report that he was crying.  At last the jury might have noticed some evidence of humanity. 
A cautionary note: When the (now convicted) murderer Scott Peterson was seen looking through a catalogue that contained pictures of outdoor clothing for his unborn son (the one who died in utero along with Scott’s wife) he also wept; this was a rare display of human emotion. 
Anger over child custody (especially when Nina obtained Russian citizenship for the two children about two months before the murder) is a strong motive for homicide.
Over the next several days, the prosecution needs to create a tight chronology, one that would allow Hans enough time to have killed Nina and disposed of her remains.  After a full year, this jury will expect to be shown at least one plausible body disposal scenario.  Watch for mention of a certain out-of-town storage unit…
To be continued….

 

JBG

November 16, 2007

Did the Reiser Killer Have Help?

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And
The Policy Think Site: http://www.jaygaskill.com
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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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FRIDAY

THE HANS REISER MURDER TRIAL IS IN RECESS UNTIL NOVEMBER 26.

I have created an edited version of my comments about this trial to date, arranged in true chronological order.  They are now posted at THIS LINK:  http://jaygaskill.com/ReiserAllPosts.htm

Here are some additional thoughts.
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. 
Reiser was working in Russia when he met a young medical student, Nina, whom he married there.  The Reisers had two children, the boy, R…, and his younger sister, N…… 
The marriage 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.
Reportedly Nina once dated one of Reiser’s colleagues, one Sean Sturgeon who reportedly has confessed to several murders, but emphatically not that of Nina.
One of the continuing mysteries surrounding the current case is why Reiser’s lawyer has not mentioned this strange character in open court.  I must assume that DuBois has been ordered not to do so, and that – for reasons best known to the authorities and the parties – Mr. Sturgeon has been ruled out as a suspect.
The presence of at least one loosely wrapped colleague of Mr. Reiser in this story raises a question.  So far, the DA has not yet articulated a single theory to explain how the defendant has eluded every attempt to uncover Nina’s body. Therefore I must ask: 


 DID THE KILLER HAVE ANY HELP?

 

JBG

November 15, 2007

DAMAGE MITIGATION

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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DAMAGE MITIGATION
Bill Du Bois has concluded his cross examination of R…, Reiser’s son. 
A redirect examination by the DA was followed by a testy colloquy between client and the court (Mr. Reiser is complaining about the social workers and the prospect that his son will now be whisked away to Russia).  
The court has adjourned until November 26 (the Monday after Thanksgiving).

POINT, COUNTERPOINT


As the dust begins to settle, the defense has made two counterpoints: 
(1) That Grandma did tell the boy that Dad did something bad to Mom. This introduces a bias that Du Bois will argue has influenced the boy’s current account.

(2) That the boy now remembers that Mom really did exit the house – before that “something big” on the staircase incident.

 Du Bois: "You remember you saw your mom go up into the street?"
"Yes."
But on redirect, the DA partially rehabilitated the witness.
Hora: "Do you remember whether your mom even left after she gave you a hug?"
Witness: "No….  She left."
"How do you know?"
"What can she do?"
"What do you mean by that?"
"No one stays in a house if they say goodbye."
"Do you remember your mom saying goodbye?’
"Yes."
"So you think if she said goodbye, she must have left?"
"Yes."


BOTTOM LINE


The defense is worse off that it would have been had the boy not testified.  The prosecution still has that, “But how did Hans dispose of the body?” hole to fill.
It will be interesting what specific theory the DA chooses to argue now.  Was the boy mistaken about Mom leaving? Or will he argue that Hans went after her?  Did the assault happen in or near the doorway? How did the blood get deposited on that pole just inside the house? 
I suspect that the jury wants to believe R… in spite of his age and the elements of confusion.  This will require them to reconcile the apparent contradictions. 
In argument, the DA will try to map the scene, the car locations and the blood spots and generate a plausible sequence of events. 


[][][]


Trying these cases is a drain on the lawyers.  I know, having been there.  I’d not begrudge anyone a Thanksgiving break…
JBG

 

 

Defense Nightmare

 

 

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And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com

 

Defense Nightmare

This morning, defense attorney Bill Du Bois asked the eight year old son of Han Reiser about the boy’s account that on the day of Mom’s disappearance he was disturbed by the image of Dad carrying “something big” down the stairs in a bag.  He asked whether the boy was dreaming.  [Defense cross examination handbook, rule one: never ask a question for which you do not already know the answer.]  The answer was a defense nightmare – “I was not asleep”.
This jury obviously likes the Reiser boy.  Du Bois is now in the unfortunate position that, having asked for it, he must now devote the rest of the defense case to discrediting the answer.  Recall that the DA, wisely, did not portray this eight year old witness as necessarily having a perfect grasp of events.  As of this morning’s ‘nightmare’ question and answer, the defense is now in the unenviable position of having made things worse.
My analysis will continue on Friday.

 

JBG

 

 

November 13, 2007

DAMAGE?

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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DAMAGE ASSESSMENT

This is just a snapshot of the witness during testimony.

The Reiser son, now 8 years old, testified today after establishing his competence (most eight year old kids can qualify to testify, but unlike adults, they are not presumed competent).

Young R… unequivocally stated that he had no contact with Mom since the day she disappeared; there were no letters, phone calls, nothing whatever from her. This alone was worth the trip for the prosecution because it will make it next to impossible to persuade the jury that Nina is alive and well in Russia.

After a colloquy about unanswered correspondence with Dad, R… was allowed to recount his vision, dream or recollection (not at all clear which) that on the night Mom vanished Dad was carrying a heavy bag down the stairs that might have contained Mom.

I can’t imagine the initial impact this would have had on the jury.

I have to assume that Du Bois objected to this testimony (if it was a dream it is clearly inadmissible, for example) but made his arguments in chambers outside the presence of the jury.  If, after cross examination, it develops that the stairs testimony was just a dream I would expect the defense to request a strong admonitory instruction and – failing that – a mistrial.  I can only infer from the ruling that Judge Goodman thinks the account will qualify as the recollection of a real event.

Cross examination of a sympathetic eight year old is full of many traps.  The last thing that the defense wants to do is to elicit even more damaging testimony or – by engaging in a heavy cross examination that doesn’t shake the witness – to strengthen the testimony against the defendant.  But Du Bois can’t just let it go. 

My next post will not be until late Thursday or early Friday, after some of the dust has settled.

JBG

November 12, 2007

THE REISER TRIAL TUESDAY MORNING:WAITING ..

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THE REISER TRIAL TUESDAY MORNING:
 WAITING FOR LITTLE R...

 

WHAT RORY CAN ADD OR SUBTRACT,
&
WHY THE “CHARACTER” OF HANS REISER
MAY DECIDE THE CASE

Most juries, most of the time, would have already concluded that the defendant is “very probably” guilty.  But probably is not beyond a reasonable doubt.  This jury still can acquit. Moreover, the jury has been led to expect a strong defense and will wait and see...  Meanwhile the “giant hole” in the DA’s case remains unfilled.

Unless the prosecution locates Nina’s corpse within a geographical range that doesn’t rule out Hans as the killer -

- Or -

Unless the prosecution comes up with a plausible body disposal method and links Hans to it in some meaningful and reasonable (but not necessarily definitive) way,

- Then –

The case as outlined so far will probably be enough (if not countered by the defense) to persuade most jurors of Hans’ guilt. I said most, but not all, leaving a mistrial the most likely outcome.

In other words, in spite of the DA’s strong opening and assuming all that Mr. Hora promised materializes in front of the jurors eyes, the case remains balanced on a knife’s edge because of the missing link: Hans is still not tied strongly enough to an unlawful death.

The character of the defendant could turn the case either way.  We’ve all seen movies where the culprit’s sinister demeanor removes all doubt of guilt and others where the accused’s transparent and guileless sincerity ensures an acquittal in spite of the evidence.  These fictional scenarios are replicated in courtrooms every day.

Mr. Du Bois is undoubtedly worried about the defense case because of his client’s “difficult” personality.  I've been in or directly observed similar problem clients countless times over three decades of trial practice and / or trial lawyer mentoring.  It is appropriate for the defense to worry at this stage.  Defense overconfidence is almost always fatal.  Defense bravado - for public consumption - is almost always a good idea.
 
We can be sure that the absence of a dead body surely has given the DA sleepless nights for months.  The defense and prosecution will both remain worried after Rory gets off the witness stand.  If for example, R... were to explain that he really did not see Mom leave the house on September 3 – but that Dad just told him to say that – The defense is going to start sweating.  But if R... even hedges or waffles about whether he’s seen Mommy after Sept 3, then the sweat will be on the other foot, so to speak.
 
As long as the case remains balanced on a knife’s edge, the defense will have one big problem to worry about.  It is whether and to what extent the jury will begin to see Hans as someone who - (a) would want to kill Nina and (b) was emotionally and physically capable of killing Nina.  This is the essence of the character question.
 
So far we’ve heard no direct character evidence about this defendant for a good legal reason (other than the obvious on – that there may not be any). 

The DA cannot normally produce such evidence because of the “undue prejudice” such negative character evidence can engender.  But the defense is free to introduce positive character evidence about the accused, if any exists.  The pitfall is that, the defense having opened the door to the defendant’s character, the DA would then be entitled to walk through the same door with any available derogatory information about Hans. Of course we all remain in the dark about what character evidence may or may not be available to either side. 
 
If this jury could be persuaded from credible character evidence (presumably not from Hans’ “Burning Man” fan mother – all mothers are expected to defend their sons) that he is essentially harmless and non-violent, the defense would probably win.  But something tells me (i.e., reading between Du Bois’ lines) that benign character evidence of this kind may never surface. But what an interesting trial it would make if it did.

In the meantime, this jury - like all criminal juries in my experience - will be watching the defendant carefully.

JBG

 
 

The Reiser Trial Pre-Evidence Phase Summary

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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THE REISER TRIAL PRE-EVIDENCE PHASE SUMMARY
A STRONG CASE ARGUES ITSELF.
You Be the Judge

A strong case argues itself.  This is another way of saying that facts speak louder than lawyers. If not, the lawyers are in trouble.

Here are the elements of proof we are led to expect that the Reiser jury will hear starting tomorrow in the murder trial against Hans for allegedly killing the (still missing, “bodiless”) Nina.

Hans, a Linux software guru, famous enough in his field that WIRED is following the trial, and Nina, a young Russian woman, were married in her home country in 1999. 

Flash forward to 2006.  The cast of characters (minus Nina’s mother) now lives in the Bay Area, USA. There are two children, now the objects of dispute in a bitter divorce that Nina initiated in 2004 because hubby was too distant. There are charges of about $12,000 unpaid child support; the custody struggle between the parents is ongoing.  Mr. Reiser is living with his mother in Oakland.  Nina Reiser is living with the kids in Oakland as well as reportedly enjoying the romantic attentions of Sean, her loosely wrapped paramour. 

Nina has just gotten Russian citizenship for the two children.

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 Sunday, September 3, 2006, Nina takes the children with her to the Berkeley Bowl grocery store, where she is caught on the security camera.  She places two very brief cell calls to Hans, then shows up at Hans’ place (actually his mother’s home, the so called “Exeter house”) to drop off the children, presumably per the agreement reached on Friday.

Throughout, Nina is driving her 2001 Honda Odyssey Van.

The Reiser’s son, Rory - age about 6 - once said that he saw Mom depart after he and his sister were dropped off, but that is now in dispute.  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 Exeter house on September 3.  She is at the “Burning Man” festival in Nevada.

What is not in dispute is that Nina has not been reported seen alive since.  

It is not until Tuesday, September 5 that someone reports Nina missing. Nina’s friend Ellen, calls the police after picking up the two kids at school, apparently around 5:30, but can’t locate Nina. She calls Hans, tells him that Nina is missing and asks to keep the kids. His reply: Uh uh”. 

Then Ellen tells Hans the she knows that Nina was at his house Sept 3.  Hans’ reply: “I need to talk with my attorney.”

On that same date, Hans is seen hosing down his driveway at 11 PM.

On September 6, Nina’s van is discovered parked on the street about three miles from the Exeter house; this is on a path not consistent with driving directly to her home - about 5 miles from the Exeter place. 

This is what police discovered in the Odyssey van:

  • Nina’s cell phone without the battery;

  • The groceries, rotting and in disarray;

  • Nina’s September 1 rent check to her landlord;

  • Nina’s books;

  • Nina’s apparently undisturbed wallet with cash, grocery receipts, drivers license, and so on.

  • No blood, so signs of a robbery or struggle, and

  • No car keys.

When Police finally obtained a search warrant they searched the Exeter house September 13 and 14.  There is a floor to ceiling pole near the front entrance. There is one blood spot & two smears about 3 and ½ feet from the floor.  Most of the blood was Nina’s and some of the blood was Hans’.

Hans’ car was a Honda CRX.  Because of battery problems he also drove Mom’s Honda hybrid. Allegedly Hans’ car is “missing” for some time after suspicion focuses on him but is located by police on September 18 after surveillance and a chase.  It is parked on street.  The front passenger seat is missing; the floorboard is saturated with water.  The socket wrench set used to remove the seat is recovered from the car. Other interesting items recovered were a siphon pump, trash bags, masking tape, paper towels,  a copy of Masterpieces of Murder, and Homicide: A Year on the Killing Streets. [The books were purchased on September 8.]

Traces of Nina’s blood were found in Hans’ car.  It is unclear exactly where in the vehicle the blood was found but the DNA match apparently is solid.

When Hans is brought in for a DNA sample, his fanny pack is searched.  He has $9,000 cash and his passport. His cell phone has its battery removed.  He also has a three page memo attacking Nina and the family law courts.

WHAT TO MAKE OF THIS

I doubt the jury will convict Hans just because he became a bit squirrelly after suspicion focused on him.  But the jury will consider his evasiveness to be incriminating when he appeared to hide his CRX.  So far the defense has done as well as can be expected with this evidence, but the suggestion that Hans pulled the front passenger seat to make a homeless shelter for himself is not likely to fly.  And there is the not insignificant matter of Nina’s blood in all the wrong places.

All attention is now on young Rory.  Direct and cross examination of a key witness that young is difficult at best.  We can assume, however, that the prosecution didn’t go to all the trouble to transport him from Russia to an Oakland, California courtroom to hurt its case.  If I were Bill Du Bois, right now, I’d be worried.

JBG

 

 

 

November 09, 2007

The Hans Reiser Trial - High Drama, Part One

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
Permission to publish, distribute or print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
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Friday

THE REISER TRIAL –

Opening statements are over

HIGH THEATER AWAITS

Bill Bu Bois, ever the old pro, made (by all counts) a very effective two hour opening statement yesterday.  As predicted, court is not in session today and will take up the jury trial again on Tuesday.  Clever court watchers would be advised to keep an eye on the courtroom Monday because I suspect there are in limine motions to be made.
The thrust of the defense is a character contrast: Nina as highly social and manipulative and Hans as brilliant, highly unsocial, but a lamb to the slaughter.  Nina, a mail order bride, whose family has ties to the old KGB (all this, so far only according to Du Bois) only married Hans to get citizenship, then had an affair with Hans' "sadomasochistic" friend. The defense will try to sell the notion that Nina intentionally set up her husband then deliberately disappeared. And that the two books on homicide (arguably useful to a prospective killer) found in Mr. Reiser’s car were only a product of the client’s “intellectual curiosity”.  Note that Bu Bois was forced to concede that the books belonged to Hans, not planted by Nina (in her sinister KGB mode).
One of the classic functions of a defense opening statement is to take the sting out of the prosecution’s outline of proof, if possible startle the jury into a receptive state of mind in which every element of the DA’s proof will be treated with skepticism.  Bill gets an “A” for the effort.
But like all trial lawyers, Bill Bu Bois is constrained by the firm bones of the evidence and by every word that comes from the client’s mouth on the witness stand.  In my experience, when the lay of the evidence is such that the defense claims, “he was framed”, the jury will demand more than a mere technical possibility that such a thing took place.  And like everything else in this case, the absence of a corpse cuts both ways.
The Reiser boy – his name is Rory we are told - is to testify Tuesday.  Now that will be high theater.
As promised, I’ll try to provide an overview of the expected evidence on Monday’s post.  So far it still very much looks to me that the tipping point in this case will be the intangible matter of the apparent character of the key players.
Many case details can be found on reporter Henry Lee’s blog at www.sfgate.com/ZBLS.
JBG

November 07, 2007

The Reiser Trial - "Something Big"

 

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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The Reiser Trial: Day Three
Something Big….

 

No prosecutor in his or her right mind will promise an important bit of proof and then not present it.  Assuming that there will be no egg on Mr. Hora’s face later this year, the jury will hear testimony from Mr. Reiser’s little boy, who is to be flown in from Russia.
In what the prosecution conceded might have been a nightmare, the boy (name withheld) is expected to say that he saw “something big” being carried out of the house the night of the last day Mommy was seen alive.  This may be enough to help plug the gaping. “Where is the body?” hole, even if the boy’s testimony is discredited. It also will tend to rule out the suggestion that Mom is now hiding out in Russia. 
We now may know why the opening statements were delayed from Monday to Tuesday. 
Frequently, there is an objection to a proposed inclusion in counsel’s remarks.  Alert defense counsel would have tried to keep out the boy’s testimony in a motion in limine. After all, the bell once rung can’t be un-rung.
I hope to do a piece about all of the expected evidence next week. Meantime, there was one other damaging bit of proof mentioned today.
On the day of Nina Reiser’s disappearance, she and the children were captured on a grocery store security camera.
Recall that the sacks of groceries from the same store – by then rotting – were found in her Honda Odyssey several days later. I expect that the DA will present circumstantial evidence tending to show that Mrs. Reiser suffered “foul play” on or near the day of her disappearance.  The jury will be asked to infer that her Odyssey was moved to the Montclair District spot by her assailant after she was “out of the way”.  We can expect to learn of evidence linking the Odyssey to Mr. Reiser.  We might expect the defense to argue that she was the tragic victim of an Oakland thug (but therein lies a trap; that line of argument supports the implication she was murdered).
We can be sure that this case will look much different in one week.
Later…
For reporter Henry Lee’s full account go to http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/11/07/BANMT83JE.DTL .
  For reporter Henry Lee’s full account go to .

November 06, 2007

Hans Reiser Is In Charge

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Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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THE REISER TRIAL, DAY 2:

Hans Reiser Is In Charge

Lawyers generally don’t talk to the press about what their murder client has or has not told them, a least not without the client’s permission and as part of an overall strategy. 
Yesterday, when it was announced that the opening statements would be delayed until today, Hans Reiser’s lead attorney, Bill Du Bois, spent a few moments chatting with San Francisco Chronicle reporter Henry Lee.
[Please see the full article on www.sfgate.com  at this link:
http://www.sfgate.com/cgi-bin/interstitial/main/showad?target_url=http%3A//www.sfgate.com/cgi-bin/article.cgi%3Ff%3D/c/a/2007/11/06/BASUT6KAE.DTL ] 
In the course of this exchange, some very interesting things were revealed. Here are my top three:
1. The defendant intends to testify, even though “it would be easy” if he didn’t.
2. Reiser has been an active participant in the defense, familiar with the “9,000 pages of discovery”, and he has occasionally disagreed with his attorneys over how to proceed.
3. The pull quote from Mr. Du Bois: “…[W]e don’t know how he will come across because of his intellect.”
This exchange is fairly easy to decode.  Mr. Reiser, a software genius, is something of a control freak.  The defense is undoubtedly worried that he will come off as one, as a much smarter than the average bear, and as an unsympathetic “cold hearted geek”. 
Any jury that can see Mr. Reiser capable of cold hearted ruthlessness will have little trouble deciding this case against him.  As I wrote yesterday, Hans Reiser’s character will be the elephant-in-the-room subtext of the whole trial. 
I agree that putting the defendant on the witness stand is a roll of the dice, but I tend to agree with Mr. Reiser. It is this defendant’s best (maybe his only) chance of getting an acquittal. 
File this thought away: If the Reiser case is ultimately mistried because of a hung jury (especially is there are 6 or more votes for guilt) you can be assured that the DA’s office will have another run at it.  Very few software geniuses have the means to fund a second high profile murder trial, let alone the first one.
The DA’s opening statement will occupy front stage today and all or part of tomorrow.  This is a critical part of any case that has no smoking gun, no bloody dagger and no eyewitnesses.  Isolated bits and pieces of evidence need to be understood by the jury in the overall context of the people’s case.  The opening statement is the prosecution’s one chance to provide that context in advance. 
In this atypical murder case, the DA will need overwhelming evidence of at least three things: (1) that Mrs. Reiser’s sudden disappearance was due to foul play; (2) that Hans Reiser is the only plausible culprit, in effect, that – absent a miraculous violation of the laws of common sense – he is the only one who could been responsible for the foul play; (3) that the totality of the circumstances effectively exclude any realistic possibility that Nina Reiser survived the foul play.

WHAT TO WATCH FOR:

This is not a slam dunk case even if the DA carries the day on all three lines of proof. 
Look closely for how prosecutor Hora attempts to address the huge hole that remains:

How, plausibly and realistically, could Nina Reiser’s body have been disposed of so effectively that now, more than a full year after her disappearance, the authorities remain stumped?

Opening statements will probably occupy the next three court days and there will probably be a recess on Friday.
More to come….
JBG

 

 

November 05, 2007

The Hans Reiser Trial

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The Human conspiracy Blog: http://www.jaygaskill.com/blog3
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006 and 2007 by Jay B. Gaskill
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Breaking... Opening statements postponed until tomorrow.

J

Monday. It Beigns….

 

Did Hans Reiser Commit murder? Where is the body?

 

Computer guru, Hans Reiser is being tried in Oakland for the murder of his wife, Nina. 

The corpus delcti is still missing and no one, save her putative killer, has seen Mrs. Reiser dead.  Wisely, the Alameda County DA’s office is not seeking the death penalty; it will be difficult enough to obtain a conviction as it is.

The couple was in marital trouble before Mrs. Reiser’s sudden disappearance (yes there are blood traces in suspicious places), and their children have been spirited away to Russia by “grandma” who lives there. Their involuntary extradition is not a reasonable prospect.   Paul Hora, an experienced trial lawyer, is handling the prosecution; the unflappable and even more experienced Bill DuBois is the defense attorney. 

I will have something to say about this interesting case in this space from time to time. 

But to follow the action hour to hour, I recommend the blog by the San Francisco Chronicle’s Henry K. Lee who is attending the opening statements as I type these words. The link is www.sfgate.com/ZBLH .

The case is nicely balanced, with a tilt towards the prosecution. 

Here is the key and what to watch for:  What will the jury hear – or be able to infer - about the character of the defendant, Hans Reiser. 

To prevail, the defense team will need to fill in the blanks about this man.  Who is he really?  Is he capable of murder? What makes him tick? 

If Reiser is ready and willing to testify in his own defense, it would be a mistake – in my armchair opinion – not to put him on the witness stand.  Yes, there are always pitfalls with that approach, and any cautious defense counsel will always be tempted to run the classic “reasonable doubt” gambit without putting his client to the test.  But I have a gut feeling that approach will not work here.  I suspect that a little more is needed.  Does the defense have it?  Will Mr. Reiser be willing to undergo cross examination? 

The opening statements may reveal the first shadowy outlines of the defense. 

Or not.  An experienced and inherently cautious defense lawyer like Bill DuBois may want to play his cards closer to the vest. 

JBG

 

November 02, 2007

The Baby & Bathwater / What can Rudy say about abortion?

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PRINT VERSION - http://jaygaskill.com/BabyandBathwater.htm  

FRIDAY

The Baby and the Bathwater:

What More Can Rudy Say About Abortion?

 [As corrected - Frown - how could I have mispelled Roe?]

BACKGROUND

Roe vs. Wade: A Fragile Social Consensus Unraveling
Talk about the electrified third rail of politics.  The “woman’s choice” vs. “right to life” struggle remains as high voltage – and politically lethal – as it ever was. And Mr. Giuliani, the putative republican front-runner, is also the most “pro-choice’ of the candidates.  It will be a tight race against the putative front-runner for the democrats, Mrs. Clinton.  Mr. Giuliani needs the “Christian right” as much as Mrs. Clinton needs the “code pink” left.   
You would think that, as a Roman Catholic, Mr. Giuliani would have a natural advantage.  But life is never that simple.
A Review: 
This is a good time to recall that Earl Warren, a former hard nosed prosecutor and the popular middle-of-the road republican governor of California (1942-1953), was never considered a brilliant legal scholar.  He was appointed to the U. S. Supreme Court by President Eisenhower, almost in self defense.  His most two important achievements as Supreme Court Justice (Miranda vs. Arizona and Brown vs. Board of Education) have proved durable more because of their practical and political underpinnings than due to their underlying legal reasoning. This is not intended to be read as a critique of Justice Warren's work on the court.
Roe was decided in 1972, four years after Mr. Warren’s death.  It was a seven to two decision with strongly worded dissenting opinions. By contrast, Warren’s landmark desegregation case, Brown v. Board of Education, was unanimous. Justice Warren’s judicial philosophy was nothing if it was not supremely practical: in the most controversial of decisions, Warren felt that Supreme Court unanimity was essential. 
Rarely has the high court ventured into such a hotly contested moral and social controversy as it did in Roe, with a divided court and based solely on disputed legal reasoning.  We can reasonably doubt whether, had Earl Warren lived and served on the 1972 court, Roe would have been decided in the way and with the particular social and political reach that it achieved.
Thirty five years later, the Roe decision hangs by a stare decisis thread.  Not one of the justices who voted in 1972 is still alive. 
And there has been a sea change in popular opinion. While most Americans are not stridently “pro life”, they are not stridently “pro choice” either. While a clear majority of Americans support the recent Congressional ban on the partial birth abortion procedure (I’ll spare you the chilling clinical details that prompted such a widespread popular revulsion), a politically powerful minority remains “pro-choice” even in this subset of cases.
Clearly, if it were re-decided today, Roe would not be a 7-2 plurality decision, it would be a 5-4 squeaker … and I’m not at all sure which way the chips would fall.  The passion on each side has not diminished a whit.
How the Roe Holding Limited State’s Rights
The core holding in Roe was a limitation of states’ rights.  After Roe, no longer did each state have the unlimited power to allow or prohibit abortion.  The court created a three-trimester scheme as follows:
  • “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
  • “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
  • “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The Trouble Ahead

If Roe’s federal restrictions on state action fully disappeared tomorrow, we could easily face a crippling social division along the following lines: New state laws would be passed, some allowing abortions currently prohibited, and others outlawing abortions, currently allowed.  Some pro-life jurisdictions would be jailing physicians and would-be mothers while others would be jailing passionate protesters.  It is not at all clear that the reversal of Roe would actually improve things for either side.  Pregnant women would once again cross state lines to seek abortions.  It is not at all clear, that in a post Roe legal environment we would not experience a steep increase in the aggregate number of abortions. The pro-life cause has benefited from gradualism, an emphasis on adoption and – yes – birth control. 
All this would unfold as the country faces a decades-long defensive war against bands of jihad of Islamic extremists for whom the offenses of marital disobedience and other acts of “western decadence” warrant beheading.

WHAT CAN RUDY SAY?

Here is the speech I imagine the Nation’s Mayor giving.
“I wholeheartedly support the culture of life and oppose the culture of death.  That is what separates us from the bloody minded jihadists, the terrorists and the holocaust deniers.
“My plea to every mother and mother to be is this: Choose life.  This is my promise: I will support your choice to bring a child into the world with every resource at my command.  Don’t let anyone talk you out of it.
“In the larger arena of public policy, I recognize that not every American of good will always be in agreement about the right policy in this sensitive area of concern.  Therefore I and all those who support the culture of life need to join together in the practical world where we will press in various ways to bring about that wonderful day when the respect for live prevails and cause of replacing abortion procedures with life affirming solutions has prevailed.
“This is a long struggle and it will require great perseverance and patience. But the arc of history is with us.  The pro-life forces have made great progress in the last two decades because they have changed hearts and minds. They have won policy victories that I strongly support, like the federal ban on partial birth abortions and protections for parental notification. I will defend these victories for life and I will press for more. 
“I am for gradualism because gradualism works; it starts at the ground level where real people make real choices. And I support gradualism - above all – because it enables us to remain united as a people.  We are at war against attackers who are missionaries of the culture of death.  We will defeat them as long as we can stay united. 
“We will continue the pro-life progress that has been made here at home with all deliberate speed. The forces for life will prevail here at home because history and the Author of all life are on our side.  Life will prevail. America will prevail.”
[][][]
JBG

 

 

 
 
 
 

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