THE REISER DA RESTS
As Published On
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And
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All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill
HANS REISER ON TRIAL
THE DA HAS RESTED WITHOUT INTRODUCING FURTHER FORENSIC EVIDENCE.
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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.
This leaves the case about where I described it yesterday, with all eyes on the defense: that phase starts with evidence on Tuesday morning.
Pending that effort, I am now separately posting the first of two or more guides to the final arguments. This one, dealing with the Circumstantial Evidence Rule, is as follows:
A Print Version of this Piece is linked at http://jaygaskill.com/PeoplevsReiserArgumentGuide1.htm
People vs. Hans Reiser
“[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.”
The defense will try to break down and compartmentalize each bit of damaging evidence, applying the circumstantial rule to negate each separate, potentially incriminating fact.
For example, we can expect the defense to argue that a particular DNA sample might reasonably have gotten there innocently – think of that hard-to-see smear of Nina’s blood that was recovered and identified from the stuff sack. The argument might then go like this:
“As the trial judge will instruct – whenever ‘one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence’. Nina could easily have left a blood trace at a different, happier time in the relationship. Under the rules, if you find that to be a reasonable possibility, then you, the jury, must adopt the innocent conclusion and move on.”
This technique can be repeated for other blood stains, the car washing and so on. This repeated use of the rule, in effect the balkanization of the DA’s case, is one of those fallacious forms of argument that the defense is allowed to pursue without an interruption by the judge. The response is up to the DA.
A prosecutor in a case like this will typically argue that the jury is entitled to aggregate all of the proved suspicious and incriminating circumstances as a whole. Then, using common sense, the jury will determine whether the total weight of all circumstances can reasonably be reconciled with the conclusion that the defendant is innocent. A prosecutor may point to the defendant in the courtroom meaningfully -- “You don’t have to leave your common sense behind when you enter the jury room.”
This total case “gestalt” argument is the only way to avoid the chain of evidence trap, such that the entire case is as weak as any single bit of proof (thinking of the late Johnny Cochran’s line - “If the glove doesn’t fit, you must acquit!”).
How effectively Paul Hora calls Bill DuBois on the “divide and ignore” defense technique will matter because ultimately any trial is about credibility. That is especially one in one like the Reiser case where each lawyer will be telling the jury with a straight face that the evidence points in opposite directions!
JBG
→ 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
HANS REISER ON TRIAL
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 ):
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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.
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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.
This leaves the case about where I described it yesterday, with all eyes on the defense: that phase starts with evidence on Tuesday morning.
Pending that effort, I am now separately posting the first of two or more guides to the final arguments. This one, dealing with the Circumstantial Evidence Rule, is as follows:
A Print Version of this Piece is linked at http://jaygaskill.com/PeoplevsReiserArgumentGuide1.htm
People vs. Hans Reiser
The Final Argument Guide – Part One
Arguing the “Circumstantial Evidence” Rule
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.”
The defense will try to break down and compartmentalize each bit of damaging evidence, applying the circumstantial rule to negate each separate, potentially incriminating fact.
For example, we can expect the defense to argue that a particular DNA sample might reasonably have gotten there innocently – think of that hard-to-see smear of Nina’s blood that was recovered and identified from the stuff sack. The argument might then go like this:
“As the trial judge will instruct – whenever ‘one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence’. Nina could easily have left a blood trace at a different, happier time in the relationship. Under the rules, if you find that to be a reasonable possibility, then you, the jury, must adopt the innocent conclusion and move on.”
This technique can be repeated for other blood stains, the car washing and so on. This repeated use of the rule, in effect the balkanization of the DA’s case, is one of those fallacious forms of argument that the defense is allowed to pursue without an interruption by the judge. The response is up to the DA.
A prosecutor in a case like this will typically argue that the jury is entitled to aggregate all of the proved suspicious and incriminating circumstances as a whole. Then, using common sense, the jury will determine whether the total weight of all circumstances can reasonably be reconciled with the conclusion that the defendant is innocent. A prosecutor may point to the defendant in the courtroom meaningfully -- “You don’t have to leave your common sense behind when you enter the jury room.”
This total case “gestalt” argument is the only way to avoid the chain of evidence trap, such that the entire case is as weak as any single bit of proof (thinking of the late Johnny Cochran’s line - “If the glove doesn’t fit, you must acquit!”).
How effectively Paul Hora calls Bill DuBois on the “divide and ignore” defense technique will matter because ultimately any trial is about credibility. That is especially one in one like the Reiser case where each lawyer will be telling the jury with a straight face that the evidence points in opposite directions!
JBG
