The Out-Lawyer's Blog

REISER FRIDAY FOOTNOTES

For yesterday’s ongoing cross examination of the defendant, I have nothing to add to Henry Lee’s excellent account – both print and blog (the former ran today in the San Francisco Chronicle)  -  except to add the observation that the problem (from the defense point of view) with the Reiser case has, from the beginning, been Mr. Reiser himself.  Links: blog - http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=37&entry_id=25076 and print http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/03/21/BA5HVN9TV.DTL&hw=reiser&sn=004&sc=226 .  \ at

This is a recent e-mail exchange re the hard drive issue.

Mr. Gaskill:
  The matter of the missing disk drives is something
  that makes me especially appreciative to have an
  expert providing legal analysis of the case.  I expect
  the possibility that they have been in the custody of
  the defense attorney, even though identified as items
  sought in the search warrant, is unusual.  Is it unheard
  of?  In other words, is it a bombshell rather than a mere
  red flag?
  Assuming the disks are found and there is no mistrial,
  will the prosecution be allowed to reopen its case to
  introduce new evidence, even though they have rested?
  Thanks for all the insight you have provided into this case.
Oakland

My answer was Yes, Yes and Yes. 

In all likelihood, if new evidence important to the prosecution case surfaces late because of defense misconduct the court would allow the DA to reopen.  However, is the matter has been submitted to the jury, all bets are off – too late is really too late.  But in this case, because the DA and court have been alerted to the hard drive issue, i.e., that they may still be recoverable, the DA will not rest the prosecution’s case until the issue is resolved.

JBG