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….