The Out-Lawyer's Blog

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

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.