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.”

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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