The Out-Lawyer's Blog

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…