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Reiser 2-28 PM

THE BOY WAS CONFUSED AND…

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In front of the sitting jury, Dr. Fraga ran up to the noon break answering questions about his qualifications.

The jury now knows that this defense expert witness has three felony convictions, two for cocaine and one for forging US treasury checks, with lesser DUI & hit and run cases thrown in for good measure.

This is the first time Dr. Fraga will have testified as an expert in “children’s cognition”, and he has never published on the subject.

Why would Bill DuBois take the risk of putting on this somewhat pre-damaged psychologist? 

I suspect there are two reasons:  (a) Dubois and team couldn’t get anyone else. (b) The defense still hopes to use Fraga to get before the jury young “R…”’s testimony at the Reiser preliminary hearing before Judge Conger in which the lad supplied the almost-alibi.  Whenever an expert “relies” on something as a basis for his or her opinion, that “something” becomes potentially available to the jury.

For the potential gain involved, the defense is paying a very high price indeed. Even if the jury believes, for example, that Hans’ son unambiguously testified that he saw Mom disappear though the door of the Exeter house, never to return, there is no evidence to rule out a scenario in which this defendant followed her outside.

We also learned this morning that Hans will not testify today.  Recall that the court is not in session tomorrow.  This gives the defense team the entire weekend to prep their client.  They will need it.

JBG

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As updated on 2-28-08

Again, I’m somewhat puzzled at the defense direction.  Today’s witness, carried over from the end of yesterday’s abbreviated session, was Cheryl Hicks, the lawyer who represented Hans (post-Nina’s disappearance) in an attempt to regain and retain custody of his own children. 

DuBois was able to establish, through this witness, that Hans wanted to have his two children and was deeply upset at the conduct of the Child Protection authorities who took them away.  To this extent, Hans appears as a more sympathetic figure than before.

In this legal effort, Hans position was strong, his attorney thought, but she declined to put her client on the witness stand. Why not call him? Hora pressed in cross examination.

Hicks: It was my call. I didn't think it was something I wanted to do.
Hora: Were you trying to protect him?
Hicks: Protect him from what?"
Hora: I don’t know why you wouldn't call the most logical witness to say, 'Hey, I want my kids back. I'm a good dad.'  
Hicks: We had very limited time that day.

Reiser lost custody.

The next witness, a clinical psychologist named Michael Fraga has spent the entire afternoon, outside the presence of the jury, the subject of a dispute whether this defense witness will be allowed to testify in the case at all. 

Fraga is being called primarily to render an opinion about the “relative credibility” of “statements by children”.  DuBois argued that Reiser’s son has made several statements but that NOT all of them should be rejected out of hand  just because they were made by a six year old.  He added that “the degree of credibility” would be left to the jury.

Comment: Young “R….” was qualified as a witness before he testified at the preliminary hearing and then later at this trial.  The jury is the ultimate judge of credibility.  Obviously, Judge Goodman is having difficulty with the notion that an expert witness should be allowed to guide the jury in their assessment of credibility especially based on general considerations, instead of a special assessment of young “R…”.

Dubois: We’re just going to ask him to tell us how a 6-year-old’s mind works, and how he might have been influenced from the very beginning…

Judge Goodman: Don’t you think that anybody with normal knowledge knows that a 6-year-old sometimes tells you things that are true and sometimes tells you things that aren't true?

DuBois: Well, yeah.

Judge: Well then why do we need an expert?

When Dubois argued that the psychologist might have special knowledge abut how a six year old boy’s testimony could be influenced by police interrogation, the court agreed to allow Dr. Fraga to take the stand in the absence of the jury in a sort of offer of proof by way of preview. 

This took the rest of the day.

Judge Goodman was unimpressed.  Then Dubois proposed that Dr. Fraga testify about Asperger's syndrome. Again, the judge was underwhelmed.

Then DA Paul Hora began his cross examination by pointing out that the witness has a federal drug conviction and a conviction for forgery.

You just can't make this stuff up...

Under questioning, the witness went on at length describing his prospective testimony, much of which would not be helpful to the defense.  After all this, Judge Goodman agreed to let Dr. Fraga testify tomorrow under “certain limitations’.  He would be allowed to describe the status of relevant research and answer certain hypothetical questions about a child witness.

COMMENT

2-28 addendum  

We are told that Dr. Fraga will be followed by a defense DNA expert.  This is very dangerous for the DA who needs to be prepared with a rebuttal expert, one better prepared for the defense cross examination than was Ms. Cavness of OPD.

More…

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SORRY – YOU CAN’T HAVE IT BOTH WAYS…

 

I have recently speculated in conversation that the signature of the Nina Reiser killing (assuming here for argument’s sake that the husband did it) is more like a sudden quarrel, impulse murder/manslaughter, followed by an “On sh..!” series of quickly executed cover-up actions, than some long thought out sinister plot on the killer’s part.  A number of comments, sympathetic to Hans have surfaced recently (one of which is appended to my last post by “Christopher”). 

Here’s the deal: Christopher’s second comment exposes the hidden “tragedy’ in this case (for those who care about “perfect” justice). If you falsely claim that a killing didn't happen or that you didn't do it, then - in the real world - you can't expect any measure of mitigation due to "provocation" and so on. Defendants can't have to both ways.  Trust me, I’ve been there with a defendant many, many times….

JBG

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Breaking News: Reiser Will Testify

Today’s session was otherwise unremarkable.

The jury was sent home early in order for the defense to argue a mistrial motion growing out of a contretemps that occurred earlier when Bill DuBois was chastised in front of the jury - improperly chastised the defense argues – over a dispute about exactly what young R. (Hans’ son), had said on the crucial matter of Nina’s departure from the Exeter house on 9-3-06. 

As I indicated at the time, we can expect the court to address the problem in the instruction to the jury; a mistrial will not be granted, in my opinion.

But we were treated to a window into the inner working of defense planning when the judge revealed the forthcoming schedule. 

Tomorrow:  A Reiser family law juvenile court attorney continues with testimony. (See my summary below).  Then, as time allows we are to expect the following:

• A defense DNA expert
  

• A defense shrink
  

Thursday: Han Reiser will testify.

Friday: Recess.

Monday (March 3):  Reiser testimony probably concludes.

Tuesday: Recess.

Wednesday & Thursday: More evidence – not specified, but possibly DA rebuttal.

The week of Monday March 10: Recess all week.

Monday: March 17: Closing Arguments begin.

What the jury heard today:

A software designer who knew Hans provided a sort of personal profile of Hans as a careful, very bright man who tended to hide his distress.  A pull quote: “… I think he's a pretty erudite person. He generally thinks through things.” 

Then on cross examination, DA Hora referenced an article in the Daily Cal student newspaper describing an argument between Hans and a student.  This is one of the strangest episodes I‘ve encountered in a defense case. Here is a witness called by the defense for essentially a trivial discussion with little advance preparation, who becomes a witness that provides potentially damaging character evidence on cross examination.

Here is how the witness described the student after the confrontation: “…there were no signs of any struggle or anything like that.” 

I’m sorry, what were we supposed to expect?  That Hans had attacked the student with a crowbar?  

This was the defense witness describing Hans: “I think he’s a little arrogant.”

The juvenile court attorney who represented Hans as he sought custody of his two children began testimony that ended early.  So far, we’ve learned that, during these juvenile court custody proceedings, Hans had been tagged as “a person of interest” in his wife’s disappearance. 

COMMENT

Hans’ testimony is a dangerous, but probably necessary step by the defense. 

It is dangerous because the defendant will have to explain a number of things, like the removal of his hard drive, the not trivial matter of where and how he disposed of the car seat, and so on.  There is a long list of apparently incriminating things to be explained in the case. If this jury thinks that Hans is lying or attempting to deceive them, all of the defense gains will be erased.  I have often said that there is no reasonable doubt case so strong that a defendant cannot snatch defeat from the jaws of victory in ten minutes on the witness stand.  We can assume that at least one of the DA’s inspectors will be on hand to follow up on leads provided by Hans’ testimony.

The decision to testify was probably necessary because Han undoubtedly made the decision early and firmly thus leading Bill DuBois into the trap: Having announced that his client will testify and having crafted the defense evidence in harmony with that expected testimony (i.e., that Nina is alive and fled the country), the defense credibility is on the line.

We are about to see a bravura defense performance when Hans testifies or we’re going to witness a train wreck.   Talk about rolling the dice!

Stay tuned.

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VERY CLOSE TO THE END?

Monday Afternoon. 2-25-08

In the afternoon session, this is what happened….

The jury was shown a September 6th video of Hans giving a technical presentation to a group; this was all about Hans’ demeanor.  The defense hopes that he didn’t look like a killer.  Did this ploy work?  I doubt it, but your guess is as good as mine…

And two investigators were called, one who inspected Hans’ CRX and one who was offered an international travel expert. 

The first expert opined, after examining the vehicle and taking into account Hans’ size, that if Hans intended to use the CRX to sleep in, he would have needed to remove the passenger seat. 

The second investigator, hired only a couple of days ago, told the jury that someone like Nina, with dual Russian-US citizenship, could have gotten replacement travel documents at the Russian embassy with her birth certificate. Alternatively, he knew of places where someone could purchase false travel documents.  [Recall that all of Nina’s official picture ID, her CDL and passport) were left behind and that Homeland security requires an official picture ID.]

The jury is left to wonder whether this is more than defense speculation dressed up as testimony.  Among the remaining questions that will probably not be answered are these:

1. whether anyone has contacted the closest Russian embassies;

2. whether Nina (who left cash and credit cards behind in her car, along with the rotting groceries) had access to enough money to pull off a disappearing act; and

3. who, if anyone, might have helped her with all these arrangements. 

On cross examination, DA Hora showed the witness Nina’s two passports, one Russian and one US.  They appeared to be authentic.  He asked the witness whether it is easy to track down someone who travels abroad using false documents.  Not at all, the witness opined; moreover, it is not easy to even to find someone who is not trying to hide because “most people don’t leave a trail.” 

Then he was asked if anyone had asked him to try to locate Nina.  The answer was “no”. 

The case recessed until tomorrow with a discussion of pending defense motions (the motion for dismissal will be denied) and a reference to the jury instructions that the court is preparing.  Instruction issues must be resolved before final arguments and the trial court normally gets to the instructions issue within a day or two of the arguments. But there are scheduled breaks and absences to be factored in.

I am left with the impression that the defense intends to wrap up the defense case fairly soon.  Of course, this implies that Hans will not testify, and that the DA will not have been given any evidentiary targets to rebut.  That will all change dramatically if Hans testifies.  In that scenario, the case could easily run all this week and next, using part of the week after that for the closing arguments....

Stay tuned….

JBG

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The Han Reiser murder trial resumes in about four hours. 

The DA has rested without a blockbuster, case clinching piece of evidence.  The only remaining possibility for a “breakthrough” event would be Hans’ own testimony.  But that may not happen….

At the beginning of the Hans Reiser trial, I offered the opinion that Hans should testify – in spite of all the attendant risks.  This was based on a couple of assumptions – that the circumstantial evidence against his would be inconclusive and that he was innocent, or at least had a clear path open to him in which a defendant-as witness  might persuade a jury to acquit.

If you’ve been following my comments over the last weeks, you know that I’ve changed my mind.  The seeds of this change of mind were planted early when I noticed the tension between the defendant and the defense team, Reiser’s obsession with the child custody issues and the early commitment by the defense to an untenable theory of defense, to wit, that it was all some shadowy KGB conspiracy.  This was the picture of a defense team trapped by a nutter defendant whose paranoid picture of the case against him contained the seeds of defeat.  It might have seemed irresistibly appealing to Bill DuBois to play with the notion that Nina was still alive somewhere, but that required us to actually believe that she would suddenly abandon everything, kids included, for some new, under-funded and perpetually covert life elsewhere.  In one of those rational intervals that tends to infect the defense mind, surely, I thought, the defense team was rethinking whether is was such a good idea, after all, to expose Han Reiser to the rigors of cross examination by the prosecution.

In this connection I want to comment, in passing, about all the net-chatter concerning that “greedy, manipulative Russian bi…” stereotype.  Whatever the folklore about the behavior of "Russian mail order brides” generally, I would remind this subset of web trial groupies of two things:  (1) This is not about your stereotype generally but about a well educated young physician from a middle class background; (2) The key issue is not whether Nina would give Hans a hard time during the marriage, but whether she would voluntarily abandon her US life and children in one dramatic gesture, leaving behind money, passports, driver’s license, anew job and rotting groceries in an abandoned car.

Yes, the evidence against Hans is still inconclusive, but the better defense – still unexploited by Mr. Dubois and possibly now unavailable due to earlier miscalculations – is that someone else caused Nina’s involuntary disappearance.

Consider the problems presented for the defense by calling Hans as a witness.  Every murder case involves eliminating a witness: After all in a mere assault – all too common in a domestic dispute of this type – the wife lives to testify against hubby.  It is unwise, in the extreme, for an innocent suspect in any murder case to attempt to flee, to destroy or hide evidence. This is why, in celebrity cases, the lawyers always announce on behalf of the suspect client, that ‘these charges are baseless and my client is fully cooperating with the investigation,’ or words to that general effect.

So Mr. Reiser is in a trap of his own making.  We’ll soon find out what he has decided to do about it.

Stay tuned….

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The Print Version of this Piece is Posted at > http://jaygaskill.com/ArgumentGuidePartTwo.htm
THE LAY PERSON’S
GUIDE TO FINAL ARGUMENTS – PART II

(People vs. Hans Reiser)

SELF INCRIMINATION AND THE ABSENCE OF EVIDENCE

The end is near.

Question: What is a juror to do with the absence of evidence?  In a circumstantial case like this one, you would think that all gaps in proof should automatically inure to the benefit of the defense. 

That’s not entirely true.

Any attempt, successful or otherwise, by the accused to hide or destroy potentially incriminating evidence allows the jury to legitimately draw the common sense inference that the defendant is concealing or eliminating evidence that tends to reveal his guilt.  These consist of the elements of circumstantial evidence (like flight or attempted flight from the police) that allow - but do not require - the jury to infer that the accused is more likely to be guilty. Behaviors of this class (i.e., when the accused hides stuff and flees or tries to do that) are presumed, in the ordinary course of things, to demonstrate a guilty mindset.

The key phrase here is ‘in the ordinary course of things’.  One of the most powerful arguments a prosecutor tends to make in these cases is this injunction:

“When you begin your deliberations, you are not required to check your common sense at the door.”

I believe that the “incriminating behavior” problem is the key to the defense’s (probably ineffective) use of the psychological profile of Hans provided by the family shrink.  Its purpose was to deflect those ‘ordinary course of things’ inferences on the grounds that Hans Reiser is a unique case, a sort of awkward, brilliant, socially maladroit geek for whom the normal psychological rules don’t apply. 

Note to Bill DuBois: That won’t sell – except as to some of the later evasive behaviors, when it might not have been clear whether Hans was being stalked by cops or thugs.

We can expect the prosecutor to argue that the removal of Hans’ hard drive, the removal of his car seat, the over-the-top cleaning of the CRX (the car Mom Palmer wouldn’t normally see) are of one piece.  They are guilty behaviors designed to eliminate incriminating evidence. 

Among the incriminating coincidences, Hora may also argue: Why would Hans nervously approach his children’s school - hours before the situation of his now missing wife would be discovered by Ellen, Nina’s friend?

And it is just at this point in the argument that the DA must tread very carefully – in the event that the defense has rested without calling Hans as a witness. 

Since 1965 (in Griffin v. California, 380 U.S. 609) when the US Supreme Court slapped down a California prosecutor and judge for ‘violating” the Fifth Amendment, DA’s and judges everywhere have been strictly forbidden from commenting on the defendant’s decision to remain silent at trial – even though the inference of guilt might otherwise be compelled by common sense.

So a prosecutor may not comment on a defendant’s refusal to talk to the police or decision not to take the witness stand in the trial. 

But the trial prosecutor may argue about the defendant’s non-testimonial conduct as “speaking louder than words”.   Of course, this DA does not have a perfect case.  In that situation, there would be clear evidence that husband disposed of the wife’s body.  In such a hypothetical fact pattern, the illicit body disposal, alone, screams louder than any testimony: He murdered me! 

In this case we have a trial by inference. 

Only trial lawyers fully appreciate this truth: You can’t pick your favorite evidence trail and you can’t pick your favorite client.

When the defense has rested look for my next installment in this Guide to the Final Arguments: “Part III - The Silent Witnesses.”

In the meantime, I’ll continue to comment on the significant developments as they occur.

Stay tuned…

JBG

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Mrs. PALMER’S CROSS EXAMINATION
 

After I concluded my account of yesterday’s testimony at 3:00 PM, DA Paul Hora did a pretty good job cross examining Mrs. Palmer, Hans’ mother. 
 

However, in my opinion, Paul Hora blew a perfect opportunity to clear up her testimony about the blood marked post in her house’s entryway.  For this error, I assume one of two things was going on:  (1) It didn’t even occur to him to try (see my earlier comment (“That Darned Post”) for why that effort might have paid off; or (2) he was worried that he would only make matters worse. As matters stand the defense can argue that the Nina’s blood might have gotten on the post several weeks earlier – basing this on Mrs. Palmer’s somewhat casual observations to the effect she noticed nothing different about the post when she returned from Nevada.
 

Among yesterday’s highlights, was this gem --
 

Hora: “If this was such a ‘memorable event,’ the specter of Nina running away ’forever’ with the kids to Sweden, why didn’t you report this to the police after Nina disappeared?
Palmer: “It just didn't occur to me.”
Hora: “What did occur to you on Sept. 8 was that ‘something terrible had happened’ to Nina, right?”
Palmer: “Yes.”

[Credit the S. F. Chronicle’s Henry Lee -- http://www.sfgate.com/cgi-bin/blogs/localnews/category?blogid=37&cat=1428 }

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At the risk of radical simplification, let me condense several hours.  The psychiatrist, Beverly Parr, who was familiar with Hans’ mental state from an early age, has opined that he exhibited some of the characteristics of Asperger’s syndrome/disorder/condition.  This – surprise – is often associated with brilliant, socially difficult people.

But – on cross examination by the DA – the jury learned that Hans remained capable of planning and carrying out a murder.  No surprise there either.

This was roughly a day’s worth of testimony, and I doubt very much is the jury gives a whit. They have not learned anything germain about Hans from this mental health professional that they were already to glean from the relevant lay testimony.

Dr. Parr was followed this afternoon by Hans’ mother, Mrs. Palmer, who has previously testified for the DA about – among other things -  “that darned post’. 

As I write this, Bill Dubois is trying to establish a pattern in which Nina demonstrated less than fervent interest in being with her children, for example by wanting to take three months away in Russia instead of the two she had initially scheduled, threatening not to come back without large sums of money being deposited in her account, even threatening to move to Sweden with the children at some point.

This is not so much the portrait of a mother seeking to escape motherhood, but the picture of a strong willed young mother who was perfectly willing to pull someone’s chain to get a result. 

It doesn’t sound like Nina was on perfect terms with Mom or Dad and - of course -Nina was trapped in a hostile relationship with Hans.  

Frankly, like almost everything the defense has so far produced, this evidence cuts two ways.  If Nina liked to pull people’s chains, and if she chose September 3, 2006 at about 3 PM to jerk Hans’ chain, then she may well have accidentally pulled a fatal trigger. This brilliant, socially maladroit, somewhat paranoid and very frustrated husband of hers might have lashed out…

In additional Palmer testimony, the jury is being treated to Hans and Nina’s wedding videos, to the fact that Hans was a messy guy, and that she had urged him to clean up after himself. In particular, Mrs. Palmer had urged Hans to clean up the cherry blossoms that tended to accumulate in the driveway…

I’m closing out for now with Mom still on the stand.  I’ll pick up at this point tomorrow.

As I indicated in a prior post, I’m hoping that DA Paul Hora manages to find an opening to revisit that blood smudged entryway post in the Exeter house.  I’ve already proposed questions that should be asked….

Stay tuned.

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You can’t make this stuff up.

Hans’ father, Ramon, apparently a former security & intelligence operative was a very difficult witness.

He has been described as a former Army “researcher” – evidently serving in Vietnam - who later worked in “private security” while in Russia.  Ramon Reiser gave a rambling account and evidenced a strong paranoid streak that may well have influenced Hans.  Apparently Dad hasn’t been the same since he was “hit by a bus”.  Since then, as he put it -- “I talk in a spider web…and often I lose track of where I was.”
Ramon Reiser was in Russia when Hans and Nina both lived there. 

Later, when it came to Dad’s attention that Nina was missing, his advice to his son was very strange. He warned that any mysterious figures following Hans “were not likely police”. 

Dad apparently believes that former KGB goons of the type that he had encountered in California and Seattle, or the Russian Mafia or “S & M techno-geeks” could have been after Hans. 

His reasons for this suspicion were never clear, but the implication was that one does not mess with Nina.   

This line would be more persuasive if Hans had suddenly disappeared without a trace after giving his wife a hard time.

There were other points as well, difficult as it was to separate them from this witness’s ramblings. 

• From Ramon Reiser’s perspective, Nina appeared to be a devoted mother in public, but in private she was somewhat diffident.

• There were references to Hans’ childhood and an anecdote about cars.  In the old days, Dad frequently grove his old ’56 Beetle with at least one seat missing.  So we are to believe that it runs in the family? 

In all, Dad was a sympathetic but confused and confusing witness, a handful for the lawyers and the judge to keep on topic. 

Dad’s advice to Hans, given after Nina had vanished, may provide a partially innocent explanation for Hans’ evasive tactics, post Nina.  But I’m afraid another take is equally plausible, – assuming arguendo, that Hans really did kill Nina: If he took his father seriously, Hans might have been more afraid of Russian retribution than of the minions of OPD!

The reference to “S & M techno-geeks” will be probably understood by the jury to relate to the still mysterious Sean Sturgeon.  But, at this juncture, there is simply no credible evidence before this jury implicating anyone by Han Reiser in his wife’s otherwise unexplained disappearance.

Without more details and corroboration, Dad’s ramblings to his son might become for this jury little more than idiot’s tale in Macbeth, “full of sound and fury and signifying nothing.”   (Macbeth, Act Five, Scene Five)

As the curtain rises again, Dad is back on the stand….

Afternoon Addendum

Ramon Concludes…

The direct examination of Ramon Reiser concluded uneventfully. 

On cross examination DA Hora tried unsuccessfully to get Ramon to identify a picture of a sleeping bag found in Hans CRX.  Mr. Reiser was apparently still babbling a non responsive answer when the DA gave up. 

On redirect, DuBois tried, over objection, to get Ramon to read into the record an email received from Nina in later 2001.  After a long exchange between counsel and the judge, Ramon eventually read portions of the email, to the general effect that Nina had never wanted a second child, that Hans had overruled her, but that the couple’s daughter (the second born) would not ever come between mother and son, “will never be fully part of us”…

Then Ramon commented about the email exchange to Paul Hora  “it was bizarre..something very sick the way she said it. She was furious…”

And that was the end of Ramon Reiser’s testimony. 

Why, one is tempted to ask, did Bill Dubois even bother with this witness, unless it was to humor his own client?

In any event, the forensic impact of this testimony is marginal.  Even if it is true that Nina was predisposed to reject her daughter, none of the American witnesses who have testified to her obvious devotion to the children would support the notion that this young mother of two would voluntarily abandon both children.

3:00 PM 

ENTER THE "SHRINK"

Dr. Beverly Parr, a psychiatrist, was called to the stand to discuss Asperger's Disease as a possible affliction common to "Computer Geeks".  She had examined Hans at age three.

[][][]

I'll pick up this thread tomorrow, but it is clear enough where DuBois is going with this evidence.  This is not a mental defense as such, more of an "it's not Hans' fault he's so weird" parry, designed to deflect the "cold hearted evil genius" image. 

Stay tuned…

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WHAT IS THE DEFENSE THINKING?

The last witness of the day was Coralie, a friend of Reiser’s mother.  Her contribution? In October, 2005, Nina revealed that she wanted to take the kids and go to live in Russia.  If Nina told Hans that on the day of her disappearance (recalling that two months earlier she reportedly had obtained Russian passports for each child), the incident would surely have precipitated the couple’s last fight. 
 

Recall the warning to Nina the former OPD officer, after seeing the fury in Hans’ eyes- Get a gun.  Coralie lined up with Hans’ mother on the larger issue: She doesn’t thin Hans killed Nina.  I think that most of this jury remembers that warning and disagrees with Mrs. Palmer and her friend. 
 

Time will tell.
 

One thing this ill advised line of defense tells me: Hans is very much in charge of the defense.  But this jury undoubtedly believes that Nina is dead, not hiding in Russia.
 

Hans' father testifies today.
 

JBG

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TREADING WATER OR SINKING?

It was not the best of all possible afternoons for the defense. 

In the morning session, my impression was that Bill DuBois was treading water, making a tiny bit of headway at the expense of developing yet one more layer of motives for Hans to have murdered Nina.

This afternoon it got even worse for the defense, in my opinion.

Before turning the witness over to the DA for cross examination, the divorce lawyer answered defense questions that established that Nina was living an extravagant life style and was contemplating filing bankruptcy. 

Now bankruptcy is a dramatic step, one that - according to the defense witness – would have thrown a wrench into the divorce proceedings: “When a bankruptcy is filed in a divorce case…a federal stay that is imposed on the case. The trustee now has possession of all the assets. …The only jurisdiction germane to the family law court is adjudication of support issues, custodial issues…”

I should add that a bankruptcy and divorce would together have wrecked havoc in the affairs of Hans’ company, Namesys. 

In his cross examination, the DA was able to establish that, in the event of Nina’s death, Hans and the children would inherit, but if the husband is convicted of murdering his wife, that would not be the case.

After a  “research break” the divorce attorney was allowed to reveal that the reason he was investigating possible embezzlement by Nina was because Hans had in effect directed him to do that.

I suspect that, in Bill DuBois’ efforts to trash Nina’s character, he has stumbled into evidence that further weakens the defense case.

Why do this? 

I also suspect that the defense team is trying very hard to keep Hans off the witness stand.  This requires two things, in addition to any back stage conversations with their client: (1) Nibble away at the DA’s case until a reasonable doubt argument can be grounded in evidence other than Hans’ words. (2) Stall for time while Hans makes up his mind.

I’ll pick up the rest of today’s session, if any, when I post tomorrow.

JBG

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Defense evidence has begun.

This morning’s session was taken up by testimony from a divorce lawyer who was investigating the possibility that Nina had embezzled money from Hans’s company.  There were a number of objections from the DA during this session, but the picture emerged as follows.

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That Darned Post Again

This is the last critical stage in the murder trial of Hans Reiser.  Watch for the blood smudge on the entryway post in the Exeter house to come up again in the testimony of Hans’ mother.  As the record now stands, she had noticed the smudge on that darned post before and after Nina’s disappearance.  Yet the DA criminalist, Cavness, testified that the blood smear was pretty obvious.  Neither counsel will be able to leave this alone, in my opinion.

Here’s the DA’s best question: "Mrs. Palmer, after you realized that Nina was missing did you ever inspect the post in the entryway to your house?"


If the answer is “No’, then point made.  The jury knows from common experience that there is a difference between casually noticing something and paying close attention.

If the answer is “Yes”, then the obvious follow up question is ”What aroused your suspicion?" And the follow up: "Did you ever notice the blood smear on the post that OPD’s Shannon Cavness described and tested?"

Stay tuned.  This will be quite a week…

JBG

Posted by U2RGood at 09:38 AM | Permalink | Comments (1) | TrackBacks (0)

The Reiser jury will doubtless be instructed as follows:

"You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise].

 

"During the trial, do not read, listen to, or watch any news report or commentary about the case."

 

 

"Do not do any research on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. Do not investigate the facts or law. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

Prudently, the court might add: Avoid all blogs, especially Gaskill's because he actually knows what he's talking about.

JBG

 

Posted by U2RGood at 07:21 PM | Permalink | Comments (0) | TrackBacks (0)

THE DA HAS RESTED WITHOUT INTRODUCING FURTHER FORENSIC EVIDENCE.

Since yesterday’s post, Bill DuBois’ cross examination of Nina’s Russian mother has done little to undercut the impact of the son’s testimony about Daddy carrying a Mommy sized package down stairs – it was ambiguous and dreamy before and remains so now, along with his confused and confusing account of mommy leaving the house – or not.  

For the flavor of the cross, see these excerpts -- courtesy of the San Francisco Chronicle’s Henry K. Lee (who blogs the case at http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=37&entry_id=24240 ):

[][][]
Grandma: "We would just keep the conversation going when (R) would start a conversation like that. We never were the ones to start the conversation," she Dubois: "And did you tell (R) during these conversations that he stated that Hans hid his mother?"
Grandma: "This was (R’s) version," she said. "He was investigating it on his own."
Dubois: "And did you tell him that Hans did something bad to Nina?" the defense attorney pressed.

[][][]

The bottom line is that Grandma denied influencing the boy and the jury will have to sort this out.  The picture in question (of Dad carrying something) was produced when the boy was with Russian social workers.

On another tack, DuBois explored Nina’s relationships with two prior boyfriends, the strange Sean Sturgeon (whom the jury has not seen) and Anthony Zografos, who has testified.  The obvious purpose of this line of questioning was to create the impression that perhaps a jilted, jealous lover might have a motive to harm Nina.  If so, the effort turned up nothing out of the ordinary.

Here is the Circumstantial Evidence Rule. The trial judge is required to include it in the charge to the jury, in substantially these words:

“[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

Posted by U2RGood at 04:07 PM | Permalink | Comments (0) | TrackBacks (0)

The print version of this post is linked at http://jaygaskill.com/WhereAreWe.htm .
WHERE ARE WE?
WHERE IS THE JURY?

Afternoon, Wednesday, February 13, 2008 about 3:15 PM.

The prosecution reportedly intends to rest with the testimony of Nina’s Russian mother.  At this writing, she is still on the stand.  I doubt that the balance of her testimony today and any cross examination – possibly running over ‘till tomorrow – will alter the legal landscape much.

So far, little of forensic interest has been added, although there was great emotional interest, even elements of soap opera – references to Nina’s old boyfriend, the wedding to Hans and so on.  Among the main points of interest:

Grandma wanted to raise the children because she didn’t want them to be with “a killer.” 

She confirmed the animus Hans had towards Nina, and that her daughter wanted to raise the children in the US.

At one point, the jury heard Nina mother’s translation of her last call to Nina on the day her daughter vanished -“My dear, dear, dear little Nina. I cannot reach you by phone. I will call you later regarding the bank issue.”

The DA drew a little blood with this quote (hearsay received over objection), from Hans’ son via Grandma on the stand: “Momma has disappeared. Poppa is with the police because he doesn't want to answer questions that have to do with her disappearance.”

[][][]

If the DA rests after Nina’s mother, Irina Sharanova, finishes, then an important opportunity to tie up loose forensic ends will have been  missed.

As I write this on Wednesday afternoon during Ms. Shasanova’s testimony, there is no “smoking gun” - just a deep, sinister cloud surrounding this defendant.  Most jurors - maybe all twelve - are leaning for conviction.

But jurors are troubled.  What, they will soon ask themselves, does “reasonable doubt” mean, anyway? 

The defense task is to take nagging doubts and incomplete proof, and turn the mix into a vote for “not proved”.  The system doesn’t require a vote for innocence, a good thing for Reiser. That would be forensically out of the question – absent a real alibi.

I suspect that Bill DuBois is thinking that, unless he screws up at this juncture, he probably has a hung jury in the bag.  This why he has recently temporized about whether his client will testify.  You can bet that the defense team has worked Hans over – urging Hans not to take the stand.  And you can bet that Hans is resisting, hoping he can work some kind of magic on the jury.  Surely, he thinks, these people will see the conspiracy against him as clearly as he did.

HERE IS MY SCORE CARD

ISSUE                                                                        

1. Hans hated Nina and wanted her out of the way:   Proved.

2. Nina disappeared under sinister circumstances:              Proved.

3. If Nina could come back she would:                                          Proved.

4. Hans threatened Nina: Not allowed.

5. Nina’s blood was left behind in sinister places:               Proved.

6. Hans destroyed key evidence.   Proved.

7.  No one else is a plausible suspect.  Open.

8.  Hans has an alibi. Open.

9. Hans has lied about important matters. Open.

10. Hans behaved evasively when under suspicion.  Proved.

11. The only reasonable explanation is that Hans murdered Nina. ???         

Stay tuned.

The rules forbid the DA from commenting on a defendant’s decision to stay off the witness stand, or from asking the jury to draw a negative inference from that decision.  But the jury can be asked to draw an inference of consciousness of guilt from a cover up and from the destruction of evidence.

If Hans takes the stand, expect these questions, among others:

Where is the car seat? When and why did you get rid of it?  Would you mind if we took a day or so right now to look for it?

Where is your hard drive?  What didn’t you want us to see?  Would you mind if we took a day or so right now to look for it?

How did Nina’s blood get on the sleeping bag cover?  The door post?  How did your blood get there?

Let’s talk about that white powder…

You get the idea.  DuBois would be out of his mind to expose Hans to these questions.

If Hans takes the witness stand (presumably against the advice of his attorneys) and seems to be deceptive or outright untruthful about anything, he is sunk.  The DA should be ready to take him apart. 

If the defense is able to further weaken the DA’s case without using Hans, then the outcome will turn on rebuttal witnesses called by the DA.  If nothing more is forthcoming from the prosecution, then the smart money is on a hung jury, with an outside chance of not guilty or guilty as charged.

Why would Hans rationally consider taking the stand?  Because he can’t afford a hung jury – he must go for broke because after this trial he will be broke.  He won’t be able to pay for the current team to repeat the performance in a few months.  Yes, the county will provide a new legal team – possibly from my former office, but it – in Hans’ mind – just won’t be the same.

And any delay (assuming, arguendo, that Hans is guilty) increases the chances that the prosecution will discover the body, the car seat, the hard drive or something else equally incriminating…

What theater!

JBG

Posted by U2RGood at 03:11 PM | Permalink | Comments (1) | TrackBacks (0)

Today, when confronted by the rapidly deteriorating crime situation in Oakland, an understaffed and over worked police force --- and far too many murders, I wondered if the performance of OPD in the Reiser case might have been impacted.  For my comments about Oakland, go to: 

 http://www.jaygaskill.com/OAKTOWNinCRISIS.htm .

 JBG

Posted by U2RGood at 10:21 AM | Permalink | Comments (0) | TrackBacks (0)

OUCH! 

It appears that the DA intends to rest the case after Nina’s Russian mother has testified, probably ending the prosecution evidence on Wednesday morning. 

This is a mistake.

I grant that Mom’s testimony was valuable, and that -- when she continues on Wednesday -- she will have moved the prosecution case forward.  Her love for her daughter and sense of loss was palpable.  

Clearly, Nina did not flee to Russia.

Mr. Hora seems to have underestimated the jury’s social intelligence: Yes the jury needs to hear from those who know the parties, including Nina’s mother, if only to bring home the point that Nina, undoubtedly is dead.  But these jurors surely already have concluded that Nina did not flee the jurisdiction and did not abandon her children.  No… they are as sure by now that Nina is likely dead as one can be without an autopsy. 

But I am afraid that Paul Hora has also underestimated this jury’s reluctance to convict any defendant when the absence of a corpse is coupled with the muddled and incomplete picture of the evidence trail that Nina’s putative killer left behind. 

If the prosecution is to prevail in this case, a truly brilliant closing argument will be needed, a logical and passionate exposition that addresses everything of concern -- no loose ends.  This prosecutor’s somewhat pedestrian presentation of the evidence leads me to worry:

Will Paul Hora be up to the challenge?

Here’s the crux of the problem for the DA’s side of the argument: 

Every failure to present possibly relevant forensic proof, or to test physical evidence, or to explain why the evidence is unavailable due to the cleverness of the evil perpetrator, potentially undermines the prosecution’s credibility.  Even if some evidence is inconclusive or negative, the jury needs to know that no stone was left unturned, that the police and prosecution were genuinely trying to answer all the questions, honestly and as completely as humanly impossible.

As the case stands, there is sufficient evidence to convince a reasonable juror that Nina succumbed to foul play, and that Hans had the means, motivation and opportunity to do her in, and that the cues, clues and telltales, when taken as a whole, point strongly to him and no one else. 

Will sufficient be enough?

As I indicated at the beginning of the trial, reasonable doubt is an elastic standard, one that stretches or contracts depending on intangible factors, the strongest of which is the jury’s impression of the defendant as a person.

Among the cues, clues and telltales, the traces of Nina’s blood on the body-sized bag in Hans’ car, and of both his and hers blood on the front post in the Exeter house are particularly damning.  This is because there is little plausible reason – in spite of the defense insinuations via cross examination -- that the blood was deposited innocently, especially because the couple did not live together, did not “hang” together, and Hans had gone to so much trouble to clean up his car before the police could collect evidence.

In spite of comments and suggestions of others, I very much doubt that the defense cross examination has eliminated the “blood problem”. We can take note that Nina did not live in the Exeter house and that therefore one would not expect to find any of her blood in any part of that house, in the normal course of events.  And we can reasonably infer that the afternoon of September 3, 2006, was not ‘in the normal course of events’. 

As I wrote earlier:

OPD criminalist, Shannon Cavness positively identified blood traces on a sleeping bag cover recovered from the CRX as that of Nina Reiser.  Nina’s disreputable boyfriend, Mr. Sturgeon, gave a DNA sample and there was no forensic trace of his presence at the Exeter house or in the CRX. 

Moreover, the blood on the post near the entryway in the Exeter house was obvious. “It's very bright red” said Cavness said. DNA confirmed that blood came from both Hans and Nina.  When challenged whether the recovered DNA came from blood or some other source, the criminalist responded: “I doubt that someone licked this pillar.”

Caviness agreed that it would have been better procedure to have taken separate swabs.  “If you had to do it over, you would have swabbed it two different times, right?”

On cross examination today, she acknowledged that – had she thought that she was dealing with two separate blood sources – the preferred procedure would have been to take not one swab, but several.

But she didn’t and a juror is entitled to ask- How does this matter?  In my professional opinion, not very much at all…

More swabs have identified a part of the bloody area in which Nina’s blood was not commingled with that of Hans and vice versa.  Those locations might have enabled a better reconstruction of the struggle.  This is an example of the defense pretending to be disappointed at police procedural lapses. 

But nothing about the blood recovery has diminished the ultimate finding, to wit: Nina’s blood and Hans’ blood were both recovered from the same entryway post in the Exeter house.

DuBois’ Co-counsel, Dick Tamor, attempted to get Cavnes to agree that Nina’s DNA recovered from the faint blood stain on  the sleeping bag stuff sack might have been drool, arguably commingled with someone else’s blood.

Cavness quite properly answered that, in counsel’s proffered theory, Nina would coincidentally have had to drool exactly on the existing blood spot.  What she didn’t say is that no other DNA was recovered from the bag, and that counsel for the defense is entitled to test and retest evidence.  What she did say was probably enough to persuade the jury: The most reasonable conclusion is that Tina’s DNA came from the blood itself.

The defense has properly pointed out – and Cavness has agreed to – the proposition that DNA science can’t date a sample. But what are the odds – the jury is now entitled to wonder – that Nina’s and Hans’ blood could innocently have been deposited where the police found it?
 
As described earlier, the interior of the CRX was flooded with water.  Also recovered were the tools used to remove the passenger seat, absorbent towels, the two police procedurals Hans purchased, and the traffic ticket he’d received in Redwood City.  And there was more evidence, equally interesting:   The CRX contained a white powdery substance, similar to that removed from the doorway of the Exeter house.

We can expect that OPD has tested the white powder recovered from the Exeter house doorway, and that “similar” powder found in Hans’ CRX. 

What are the results?

The DA is about to rest the case; apparently the jury won’t be told.

This is among a number of loose ends the DA has intentionally or negligently left wide open.

As the defense begins, keep in mind that Hans could salvage his case by testifying credibly, thereby cinching an acquittal or he could make things far, far worse, especially if he clings to incredible story that Nina is still alive and well protected by the KGB.

The remaining nightmare for both sides is Hans little boy.  Will he be believed when he reported Dad carrying a heavy bag downstairs or when he reported Mom leaving the house or when he seemed to acknowledge that he only assumed Mom left the Exeter house.

One of these versions leads to a probable acquittal, one to a conviction and one to disregarding his testimony. 

Stay tuned….

Posted by U2RGood at 10:25 PM | Permalink | Comments (0) | TrackBacks (0)

  As Published On

 

→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1

 

And

 

The Policy Think Site: http://www.jaygaskill.com

 

All contents, unless otherwise indicated are

 

Copyright © 2005, 2006, 2007 and 2008 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

 

 

I sense possible trouble for the prosecution... 

If the DA rests today, I'll summarize everything this evening or tomorrow morning.

Reportedly, this may well be the DA's last day of testimony.  The court is dark tomorrow, and the defense may start as early as Wednesday. 

A circumstantial evidence case with a missing corpse like this needs to be almost airtight.  Can the prosecution close all the holes in four more hours?

JBG

Posted by U2RGood at 11:24 AM | Permalink | Comments (2) | TrackBacks (0)

 A NOTE FROM THE 0UT-LAWYER 

I'll post an important summary and argument guide on Monday - or possibly tuesday.  I've heard rumors that the DA may wrap up BEFORE Tuesday. That would imply that the prosecution has little left to show this jury.  Absent a blockbuster FORENSIC REVELATION, that would be very good news for the defense!

 I'm looking for two more full days of prosecution testimony, finishing on a strong note.  We'll see...

JBG

Posted by U2RGood at 08:21 AM | Permalink | Comments (0) | TrackBacks (0)

THURSDAY – AN IMPORTANT RULING –
WHAT THE JURY WILL NOT HEAR…

Today’s trial contained two additional elements in addition to the cellphone and financial activity testimony heard yesterday and this morning:

(1) A description of three different ‘needle in a haystack’ searches in the Oakland hills for Nina.  The impression was left that there was only a slim chance of finding a body in that area, had it been hidden in brush, and no chance at all (obviously) had the body been left outside the search area.  The psychological impact of this testimony is simple: When a  whole lot of people go looking for a dead body and a full year elapses without a ‘find”, the person is most likely dead.

(2) A hugely interesting exchange out of the jury’s hearing.  This email from Nina to Hans will not be read to the jury:

“I will not continue mediation if you keep threatening me. When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat. I warn you that if you are going to communicate with me in this manner, I will have to end mediation and report it to the police. …”

Too bad Nina didn’t call the police.

If redacted by the court as proposed the email will seem innocuous.  Chalk one up for the defense team.

 CORRECTION

The case resumes MONDAY.

Still no knockout blow….

JBG

Posted by U2RGood at 06:53 PM | Permalink | Comments (1) | TrackBacks (0)

So far today (3PM) Nina’s prospective employer has confirmed what the jury had already heard, to wit: that just before her disappearance, she had landed a new job, one by all appearances she intended to start on September 21, paying $50K.  Her first pre-employment appointment was September 7, a date she missed. She made a point to accommodate her work schedule to the needs of her children.

This was not the picture of a mother about to abandon everything and skip out.

The jury also heard testimony about Nina’s credit cards and banking activity.  Nina owed money.  There was no activity of any kind (surprise) after her disappearance.

Comment:  The DA is now “gilding the Lilly”, having addressed these points earlier in the trial.  The purpose is to leave no room for a juror to believe that Nina skipped town, leaving hubby and kids and debts and new job behind.

If the earlier announced witness schedule is adhered to, the DA’s case will wrap up on Tuesday in just three more sessions.  To date, the forensic evidence has been enough to hold the jury’s attention and keep a strong suspicion alive.  But to make the sale – convincing this jury of guilt beyond a reasonable doubt - the DA will need more. 

If you are rooting for the prosecution, you’ll want to know the outcome of every DNA or chemical test. In a perfect world, the prosecution would call a forensic crime scene reconstruction expert to pull it all together and articulate one or more scenarios.  If it were my case, I’d attempt it; putting the puzzle together should not depend completely on final argument.

I’ve already identified the question of “corpse disposal” as the gaping hole in the DA’s case.  Any jury that becomes convinced that Hans wanted Nina out of the way, that he was capable to killing her, and clever enough to hide it, will make some allowances on the body question.  Therefore, once the jury develops a mental picture of Hans as a sort of evil genius, the gap could be closed partially by suggestion. But not entirely.  In this context, for example, if the white powder in the doorway of the Exeter house, in Hans’ CRX and in the cement bags under the house are identified as coming from a common source, that ‘coincidence” alone could help fill the gap.  If the white powder in the doorway or car is identified as lye?  Watch the jurors eyes; they will all look at the defendant and he will look away, suddenly uncomfortable.

I’m dying to know if Mr. Reiser still has the chutzpa to take the witness stand and attempt to answer all these questions.  The defense must be having second thoughts…

Stay tuned…

Posted by U2RGood at 03:51 PM | Permalink | Comments (1) | TrackBacks (0)

This case is drawing to its denouement.  Ultimately there are two competing narratives.  Let’s look at them in broad outline:

The Prosecution’s Storyline

Hans Reiser is a control freak who – in a moment of explosive hatred – attempted to solve his marital and child custody problems in time honored fashion: While his children were distracted, he quickly overpowered Nina, his diminutive, irritating wife, killed her, then temporarily hid her body, probably in the garage.  There is blood on the entryway post, in a number of telltale other places.  Hans washed away all the evidence he could, but he couldn’t get everything.

This narrative is about a secretive genius, one step ahead of the police, who successfully took a human life and managed to cleverly hide almost all of the evidence.  But blood doesn’t lie….

Was he too clever by half?  Has he left enough clues behind to warrant a conviction?

The Defense Storyline

Hans Reiser is a socially maladroit computer genius who is being falsely blamed for his expat Russian wife’s disappearance.  He’s a little paranoid, but who wouldn’t be?  He was screwed from day one because the husband is always to blame.  Of course he tried to get away, but that doesn’t mean he was guilty.  Don’t forget: Hans’ son said clearly – before the DA tried to talk him out of it – that Mom left the building.  If that’s true – and it is – there’s no way Hans could have done it.  The other so called evidence is ambiguous and easily explained…

 [][][] 

Next week, I’ll outline what I expect to be the best arguments for each side.  Meantime, stay tuned.

Evidence  resumes tomorrow…

Posted by U2RGood at 09:18 AM | Permalink | Comments (0) | TrackBacks (0)

THE CASE RESUMES WEDNESDAY TO ACCOMODATE DA PAUL HORA WHOSE WIFE JUST HAD A BABY.

JBG.

Posted by U2RGood at 05:02 PM | Permalink | Comments (0) | TrackBacks (0)