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April 30, 2008

REISER ENDNOTE

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People vs. Reiser -- Endnote
The Appeal

Subject to the vagaries of the legal process, Reiser’s sentencing date is July 9.  I would expect that to change.

 

Barring a post conviction plea bargain (we’ve all heard speculation along the lines, “What if Hans trades the body location for leniency?”- this a very, very unlikely scenario in my opinion), there will be a post conviction appeal.

 

Here are the rules:  The defendant needs only to file a single piece of paper with the court, a “Notice of Appeal” and the rest is automatic.  DuBois will not handle the appeal.  If Hans does not retain an appellate attorney, one will be assigned him from a panel. The appeal will be decided by the California Court of Appeal; this is an intermediate appellate review panel, not the California Supreme Court.  [The California Supreme Court can and often does refuse to review a Court of Appeal decision.]

 

But nothing will happen until the entire record of the case is certified and transmitted to the C of A.  At that point everything that has “officially” happened in the case, both in public and in Judge Goodman’s chambers will be part of the public record.  Typically, those revelations are so far downstream and the public’s attention of so fickle, that the case drops into a black hole until the appeal is actually argued and decided.  That could easily be as late as 2010.  If you thought that parts of this very long trial were boring, try wading through the transcripts on appeal!

 

Here’s the deal:  If a fact or event is not reflected in the official record it just didn’t happen as far as the appeal is concerned.  This means, for example, that if the so far mysterious figure of Sean Sturgeon is to become a viable appeal issue, the official record may need to be augmented.  The usual vehicle for this is a defense motion for a new trial, because new information can be appended in the form of declarations, affidavits or testimony. 

 

So far I have heard only rumors about this Sean Sturgeon fellow.  He was initially considered a possible suspect in the case.  When interviewed by the police, he claimed credit for several, otherwise unidentified homicides, emphatically not that of Nina Reiser.  He claimed, as an alibi, that during the critical hours on September 3, 2006, he was helping the homeless. No trace of his DNA was recovered from the Exeter house nor from the CRX, nor from Nina’s van.  It is unclear whether and when police ever tried to check out his alibi before ruling him out as a suspect.  Reportedly, he still cares for Nina and is furious at Hans for killing her.  It is unclear why is so certain that Hans did it.  From all reports, it seems that Sturgeon was available as a witness to both sides.  I suspect that he wasn’t called as a witness because he was radioactive, holding potentially damaging testimony to each side of the case.

 

Why did Judge Goodman apparently rule out references to Sean’s “confessions”?  The law is fairly clear on this.  A voluntary confession to a crime is inadmissible against the person confessing without independent evidence of the crime itself. And as to a third party, the statement is inadmissible as hearsay.  The actual evidentiary value of Sean’s alleged statements is close to zero, but the potential tendency to mislead a jury is huge.  Without knowing more, it is difficult to fault Judge Goodman’s ruling. 

 

Having acknowledged all of that, I must add my own take: Knowing the dire trouble this defendant was in, given the weight of the circumstantial evidence surrounding him, I would have been strongly tempted to call Sturgeon to the stand as a hostile defense witness anyway.  Sometimes you just have to roll the dice.  At a  minimum, the jury would have gotten to see Sean in person, and would have heard him deny killing Nina, offer an alibi, and then respond to the “killer question”, if allowed, to wit: “Sir, when you were interviewed by the police as a possible suspect in this case, did you or did you not admit to other murders?”.  Better yet, Sean would be forced “take the Fifth Amendment” in front of the jury. 

 

So we’ll be watching the defense pre-sentencing motions in this case with great interest.

 

JBG

April 29, 2008

Reiser - The Postscript

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The People of the State of California vs. Hans Reiser
Postscript
Hans Raiser will be sentenced to an indeterminate life prison sentence with a parole date far, away. 

Bill DuBois’ most effective legal move at this point will be a modest one - a motion addressed to Judge Goodman, as the “thirteenth juror”, to reduce the conviction from first degree murder to second degree.  Although granting such a motion is within the court’s discretion, I offer no opinion as to the merits or the likelihood of its success. 

I would anticipate a defense motion for a new trial, and that it will be denied.  We many learn from the defense motions, however, why the jury did not hear more about the mysterious Sean Sturgeon.

Paul Hora’s most effective argument was this - only the first line was borrowed or paraphrased and the rest was original:

“A man's actions are the mirror of a man’s mind. If he eats, it’s because he's hungry. If he sleeps, it's because he's tired. If he lies, it's because the truth is damaging. If he destroys and conceals evidence, it's because it can be used against him. If he covers up a crime, it's because he committed the crime. If he acts guilty, it’s because he is guilty. That’s what this evidence tells us.”

 

I have great confidence in the jury system and in a good jury’s almost uncanny ability to locate the truth in the fog of litigation and to detect a liar’s deceptions. 

In the end, Hans Reiser was undone by hate.  Not, as some have suggested, the jury’s hate for him (I doubt that was even the case) but his ill-concealed hate for his wife, Nina. This was a hatred so powerful that it leaked through and even warped the defense strategy in the case. In the end Hans’ hatred for his wife may have seduced Bill DuBois initially to outline the “Nina is evil” line of argument.  That position was the ultimate undoing of the entire defense strategy, in my opinion; it was a “poison pill” that robbed the loveable platypus of all its droll charm, and drained the defense of its last shred of credibility.

Kudos to the San Francisco Chronicle’s Henry Lee and to Wired Magazine’s David Kravets:  Their ongoing coverage of this case was indispensable to the rest of us, and to the public record of this very interesting and very aggravating trial.

 

JBG

 

April 28, 2008

MURDER ONE - REISER IS CONVICTED

MY FINAL COMMENTS ON THIS TRIAL WILL FOLLOW SOON...

JBG

April 22, 2008

DONE!

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DONE!

Paul Hora wrapped it up today, spending most of him time on Hans’ state of mind and the damage done to the family when he killed Nina.  The DA always has the last word.

Some excerpts:

Hans’ hostile e-mails to Nina were reviewed:

·        I don't think you are evil because you are shrewd, I think you are evil because you can't help what you are.

·        The problem here is that you think you can smile at me and I will forget. Those who anger slowly, cool slowly Nina.

·        It is June 1941, and you are the Nazis. And you think we will not suffer the necessary amount to defeat you. We will.

Hora made several points, among them these:

·        What kind of threat is that? 'Whatever it takes' is what he's saying. He just hated her.

·        Not only did this guy hate her, but when you got a phone call that she's missing, the first thing he said, 'Call my lawyer,' not only is the last place she was, he hated her, call my lawyer, he went down and hired a criminal defense lawyer. Not only that, his car's missing the front seat, missing the back part of the car, that her blood is there, each fact, as you consider each fact, and you think about that, that blood, you add them together, it has more and more significance -- that's the power of circumstantial evidence.

·        You do that analysis by looking at the entire puzzle because each piece has so much more significance when you consider all of the other evidence."

·        He was hiding that CRX. He was desperate by the 17th. The police searched his house. He knew they were looking for it. The heat was on. And he was desperate to hide that, way out in Manteca or Stockton. He must have passed 100 storage lockers between here and Manteca and Stockton: Livermore, Pleasanton, Dublin, Castro Valley, Hayward, Fremont, San Leandro, Oakland. They're everywhere. Storage lockers everywhere and, 'Oh, it's cheaper out there.' Yeah right. Ridiculous lies. Excuses. It's not the reason. And the reason we know he was so desperate to hide the car is because that same afternoon, he threw the seat out. That was his mission that day. That's what he did.

·        A man's actions are the mirror of a man's mind. If he eats, it's because he's hungry. If he sleeps, it's because he's tired. If he lies, it's because the truth is damaging. If he destroys and conceals evidence, it's because it can be used against him. If he covers up a crime, it's because he committed the crime. If he acts guilty, it's because he is guilty That's what this evidence tells us.

Hora closed on a sentimental note.  He read from a children’s “bunny book” found in Nina's car, about a mother’s love for her child; he showed the jury a birthday video when Nina  kissed her son; and he emphasized the callousness of anyone who would snuff out the loving relationship between Nina and her children.

All this was cumulative in a sense, but part of the DA’s larger task – to motivate jurors to act against any remaining qualms and doubts and to return a conviction.

The jury will deliberate as soon as judge Goodman concludes the instructions.

 

JBG

 

April 21, 2008

Hora and that Venomous Platypus

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Hora and that Venomous Platypus

 NOTE -- PAUL HORA CONCLUDES HIS ARGUMENT TUESDAY AM. THIS IS FOLLOWED BY JURY INSTRUCTIONS & DELIBERATIONS BEGIN... 

  

Bill DuBois’ Avuncular Swan song

The defense argument ended shortly after the jury returned from lunch with an institutional appeal for reasonable doubt as a way of keeping the government honest. 

Bill Dubois returned to the testimony of little R... as unduly influenced by his Russian interviewers and even made a reference to the administration's use of Colin Powell’s credibility to sell the weapons of mass destruction case to the UN.  [It is unclear whether he really meant to equate little R… with the former Secretary of State!]

DuBois finished on a patriotic note: “You tell the government it’s wrong when it’s wrong, so that the people who have given their lives to preserve this nation have not done so in vain.”

This was a “feel-good” ending to an argument that spent a great deal of its force earlier when DuBois had to work hard to regain his lost credibility with the jury. 

This was time that would better have been spent trying to drive a hole named Sean Sturgeon through the surrounding cloud of suspicion. 

Paul Hora’s Fierce Rebuttal

Paul Hora began by telling the jury that the male platypus has a poisonous spur, capable of hurting people with its venom. [Reportedly the jury was amused.  It’s hard to escape the impression that, while jurors dislike the defendant and have sympathy for defense counsel, they tend to like and trust Paul Hora.]

Then Hora turned to the defense portrayal of Hans as somehow disabled. He said that Asperger's disorder is no excuse for murder, then went over Hans Reiser's life achievements:  As a world class computer scientist, as having held positions with Microsoft, Sun Microsystems and IBM; as a man who developed an important computer file system for LINUX, the open source operating system, as the founder of NameSys, as securing multi-million-dollar contracts for his company; as earning a black-belt in judo, marrying Nina, a Russian physician, and starting a family with her in the US..

"He's quite an accomplished guy, if you think about it.  And now that he's on trial for murder, he's got a mental disorder. That’s what the defense is saying.”

Hora essentially demolished the claim that Nina had stolen from Hans by quoting Greg Silva, the divorce attorney. Hans thought Nina stole from the company. But “It’s all just talk. Stick to the evidence. There's no evidence of it? It didn’t happen.”

Then Hora essentially castigated DuBois for presenting three inconsistent defenses, first that “Nina is alive and hiding in Russia” then “Nina is the victim of foul play” and finally, Plan C -  “Maybe Hans did kill Nina but it’s manslaughter, not murder.”

Hora approached the Sturgeon issue obliquely. He asked the defense why, among other things, Dubois didn’t call Sean Sturgeon as a witness:

Why didn't you? If you thought anything was missing that could help your side, why didn't you call that witness? You have the power to subpoena just as I did. You can bet your boots that if the defense had anyone else who had information, they would have called those witnesses or presented evidence. You can bet your boots.”
DuBois objected: “We don't have the burden of proof.”

Hora then ridiculed the possible defense theories.  There was no evidence that Nina had planned to meet Sturgeon or some unknown CraigsList suitor.  There was no evidence that “the ghost of Fernwood Drive killed Nina”.

Hora asserted that both boyfriends – Sturgeon included – had been cleared.  This was a point at which the defense might be expected to stand up and object if Hora’s assertion was not supported by the evidence. But DuBois did not object.

When we examine the flow of argument here, it is hard not to remember DuBois’ earlier concession.  And it is easy to see how its tends to undercut his assertions of possible third party culpability and how it takes the sting out of any objection he might now make.  This is yet one more object lesson about why the defense really can’t have it both ways…

Per Hora, this was the transcribed cell message from Nina's new boyfriend-- “Sean and I have been searching and working together, trying to figure out what we can do to get a hold of you somewhere. And Ellen and I, Ellen and Sean -- and everybody -- you get the idea. I love you and I really want to see you again. And the kids want to see you again. Everybody wants to see you again.”

Hora finished the day by contrasting the evident hate that Hans had for Nina with the love that everyone else showed for her.

Hora was not quite finished with his entire argument at this juncture, reserving additional argument for tomorrow.  The case will go to the jury tomorrow after instructions from the court.  And that, whatever Hora has to add, I am persuaded that he already has a majority of the jurors with him…
 

“Final” Comment

Because this case is a bit of a mess, not to mention a puzzle, because we don’t have a dead body, and because there really is somebody named Sean Sturgeon about whom the jury has been told only a little, I can’t discount the possibility of a hung jury. 

But as the trial dynamic has now developed, I would a bit surprised if it turns out that there are more than a couple of defense holdouts on the jury. Given the defense concessions, one or two holdouts probably won’t stick to their guns long enough to drive this case to a hung jury and eventual retrial.

If there is an acquittal, I confess that – while at the beginning of the case that was a real possibility, if it happens now – I will be flummoxed.

And a voluntary manslaughter conviction at this point would be a gift to the defense, although stranger things have happened in Oakland courtrooms over the years. 

While there is not enough evidence (at least in my opinion) to make a first degree finding very likely, I can’t rule that out either because of this jury’s possible reaction to the calculated nature of the cover-up.

Assuming a conviction for anything, there are substantial punishment differences at stake. The punishments for murder and voluntary manslaughter (without special victim, weapons or prior offense punishment enhancements) range from 3 years to more than 25 years. Not all of this is up to the judge, however.

Penal Code Section 190 provides:

  • Murder one - 25 to life in prison
  • Murder two - 15 to life in prison

Penal Code Section 193 provides:

  • Voluntary Manslaughter - A prison term for specific years - 3, 6 or 11 years. Here 3 years is the mitigated term and 11 is the aggravated one.  Absent a showing in mitigation or one in aggravation, the court is to select the middle term.

Both murder terms are indeterminate in that serving the minimum sentence doesn’t guarantee release on parole.  There are inmates still serving terms for second degree murder whose actual prison time approaches that for first degree.  In the event of a first of second degree murder conviction, the sentencing (following a pre-sentence report about a month later) is essentially out of Judge Goodman’s hands.  Probation is not an option, and the prison terms are, as we say, those “prescribed by law”.

A manslaughter verdict, however, would call on the judge to make a sentencing choice between three terms – 3,6,11.  Under these circumstances, it is very unlikely that the mitigated term of 3 years could be justified, so the realistic choice would be between 6 and 11 years. 

A FOOTNOTE:

If there is a conviction in this case, I would blame Hans Reiser, not Bill DuBois. I am reminded of a mentor, long, long ago, who described the defense function (in most cases) as alchemy; we are charged to turn fecal matter into gold.

From this distance it appears to me that all of the defense problems – including the initial selection of the “Bad Nina” defense – were less “self-inflicted” than “Hans dictated”. 

As I’ve told new trial attorneys-in-training over the years, there is no circumstantial evidence case so weak that a testifying client can’t snatch defeat from the jaws of victory in a few improvident minutes, hours or days on the witness stand. 

To my web audience overseas, I would add that my faith in the American jury system is undiminished. It remains a marvel to me just how often twelve jurors are able to sort through the conflicting claims in a case, see though the “fog of litigation”, and arrive at the best approximation if justice that can be hoped for in a free society. 

We could do so much worse…

JBG

 

THE END IS NEAR

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MONDAY

April 21, 2008

THE END IS NEAR

ONE MORE CONCESSION

PRINT VERSION LINK: http://jaygaskill.com/OneTooMany.htm

 

Last week, Bill Dubois made an important concession.  As I said then --

Bill DuBois has been forced by the weight of the evidence – and an appropriate regard for the jury's own take on the case – to back off the “mean Nina fled” theory.  DuBois did it adroitly, during an early discussion about Nina -

 

“You've been informed she is the victim of foul play and I cannot dispute that. I cannot dispute that she was the victim of foul play. But the evidence hasn't told us even where she is. The evidence hasn't excluded her being in Europe.”

 

The concession that “I cannot dispute that she was the victim of foul play” allows DuBois to make the maximum use of the shadowy character, Sean Sturgeon in generating reasonable doubt.

 

In this morning’s argument, Dubois returned briefly to the Sturgeon-as-suspect theme:

He is the one person who relates to everybody in this case who has not been called as a witness. [He had an] "equal motive or greater motive to do harm to Nina than Hans Reiser".

 

Dubois continued with the “Hans is different” theme, really an invitation yo judge him differently than someone else similarly situated. 

Examples of this line:

·        Hans is "real genuine nerd."

·        "If he had violently abused Nina in any way, shape or form, you would have heard about it," Du Bois said. "There is no evidence that he did."

·        “For some people, taking the car seat out to get a better sleep or remodeling the back of the car to put a futon in it is odd. But for Hans, it's consistent with his personality. He doesn't care what anybody thinks. Anybody who knows him knows that. The circumstances of this case are just consistent with his personality.’

·        “If it's consistent with two reasonable interpretations, then you must adopt that inference which points to innocence, however odd he may be, and reject that that points to guilt. He's an eccentric.”

But today, the defense made an even more important concession.  It is now clear that the voluntary manslaughter instruction, for which the defense had no objection was, in fact, the result of a defense informal or formal request.  This morning DuBois attempted to mitigate the offense, in the scenario where the jury concludes that Hans did cause Nina’s death.  

The defense now has told the jury, that if Hans killed Nina, it would have been provoked.  Hypothetically, “Nina says – ‘I can't take it anymore. I'm leaving and taking the kids to Russia.’”  Then Hans, who loves his children, loses control.

Dubois: [Addressing  this scenario]"He didn't act with malice. Your verdict must be voluntary manslaughter. [If you find] That if Hans had something to do with this, it's inconceivable to me, that the person who was described to me by one of his friends, couldn't have planned anything like this. It would have taken 30 years."

Of course I agree.  The Hans did it scenario involves an impulsive, unplanned act of violence, followed by a hasty cover-up.   Someone of Hans’ intelligence would have hatched a better plan.  But it doesn’t follow that someone of Hans’ intelligence couldn’t have snapped under marital duress.  Better men that Hans have done so to their everlasting regret.

I’ve identified this form of argument as a concession because, in my experience, it is impossible as a practical matter to mitigate the offense while trying to maintain that someone else did it.  The jury will likely conclude from this part of Dubois’ argument that the defense - at a very minimum – has decided that it is reasonable for a juror to conclude that Hans did it.  This will cut the ground out from under any holdout jurors who cling to the notion that someone else did it, just as Dubois’ earlier concession about Nina’s abduction has weakened the case that she is still alive.  That’s just how jurors tend to think. 

I’ve been there.  Unless a miracle happens - i.e., Nina walks though the courtroom door, an acquittal is now virtually out of the question. 

I’ll cover the remaining arguments in a subsequent post.

JBG

 

 

 

 

 

 

 

April 17, 2008

The Reiser Defense Argument - A good start

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Print Version link -- http://jaygaskill.com/DefenseArguesPartOne.htm

 

A GOOD START

 

NOTE: DuBois argues for the defense again Monday, April 21, followed by Paul Hora’s expected rebuttal.

 

The defense has argued part of yesterday and all of today, doing very well with the preliminary matters, explaining reasonable doubt and how the police and prosecution tend to overlook potential defense leads.  And Bill DuBois accomplished this without a frontal attack, all the while praising the talent of the prosecutor and the hard work of the police.  This part of his argument was letter perfect.

 

Then, as we might expect, Bill Dubois' argument was threaded with a point by point deconstruction of the DA's evidence, taking each bit of circumstantial evidence, diminishing it or supplying an innocent interpretation or both.  This approach works best when there are fewer pieces to discount and a weaker overall pattern of incrimination.  It also helps if your client has not lied. 

 

The defense approach here is to compare the defendant with an unlovely aberration, the “almost duck” (the jury is apparently treated to an image of a duck billed platypus), and to turn Hans Reiser's geeky, off center, socially maladroit personality into an asset. Bill DuBois: “Just because he's 'acting funny' doesn't prove he's guilty.”

 

Dubois made a potentially telling point to which Paul Hora will need to respond.  When discussing the blood traces on the post at the Exeter house: “As far as the expert can say, it was ‘Hans’ blood and Nina's saliva,’ or ‘Nina's blood and Hans’ saliva.’”

 

I am reminded that there were blood droplets, suggesting splatter. Because this is one of those points where the jury may request read-back during deliberations, it is in Hora's interest to try to nail the point in his rebuttal, if DuBois has this wrong.

 

DuBois used the other blood traces in the Exeter house to his advantage.  All those deposits were innocent, implying that Nina's blood and Hans’ blood on the post could also be innocent.  As I mentioned above, he did not address the “splash” issue. 

 

But as DuBois reminded the jury, “people leak”.  

 

DuBois is doing what any competent defense attorney needs to do at this phase on the argument.  But to drive all or several jurors to vote for an acquittal, he still needs an over-arching alternative theory of the case.  All the “but this bit of evidence is susceptible to a reasonable innocent explanation” arguments are merely preparatory.

 

I believe that the jury is troubled by the absence of the body but not necessarily enough to acquit a defendant they believe has been lying to them. 

 

But the jury will be very, very troubled by the credible introduction of another suspect or class of suspects.  This will require them to rethink the entire case along the very lines that DuBois' threshold approach has recommended.  So when the defense argument resumes on Monday, we’ll be looking for more about the “other suspects.” And wondering whether the defense still has the credibility to “make the sale”.

 

JBG

Reiser in Argument - Realism & Credibility

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People v Reiser (in argument)
Link to Print Version: http://jaygaskill.com/ReiserRealismCredibility.htm

 

REALISM AND CREDIBILITY

 

The danger in staking out your ground in opening statement is that the ground can shift during trial and you may lose credibility.  This is what has happened with the Hans Reiser defense.  Bill DuBois has been forced by the weight of the evidence – and an appropriate regard for the jury's own take on the case – to back off the “mean Nina fled” theory.  DuBois did it adroitly, during an early discussion about Nina -

 

“You've been informed she is the victim of foul play and I cannot dispute that. I cannot dispute that she was the victim of foul play. But the evidence hasn't told us even where she is. The evidence hasn't excluded her being in Europe.”

 

This signals two things: (1) that the defense has bowed to reality at the possible expense of a credibility loss (but given the flow of the trial, there was really no other course open to a competent advocate), and (2) the defense will dump on Sean Sturgeon.

 

If there is an acquittal, it will be because the prosecution didn't do enough to preemptively block the introduction of third part suspects, like Mr. Sturgeon.  But for the moment, I suspect that the defense will be happy with a hung jury...

 

Bill BuBois continues his argument this morning.  If he finishes today, Paul Hora will give a brief rebuttal argument and the court will schedule jury instructions (normally about two hours are needed for that). Then the case will be in the jury's hands.  Note that this will become a five day a week trial as soon as the jury retires to deliberate.

 

JBG

 

April 16, 2008

THE DA’S REISER ARGUMENT - LOOKING LIKE A DUCK

 

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April 16, 2008
PEOPLE V REISER: THE DA’S ARGUMENT

 

LOOKING LIKE A GUILTY DUCK

 

Over the last day and a half, Paul Hora argued with intelligence and passion. He stressed that intense probability amounts to common sense certainty where circumstantial evidence is concerned, and he stressed that outrageous duplicity amounts to a guilty cover-up where a defendant's testimony is concerned.

 

SOME HIGHLIGHTS:

 

“The fact that a murderer may successfully dispose of the body of the victim does not entitle him to an acquittal...That is one form of success for which society has no reward.”

“Nina, from what we know about her, was the kind of mother that would never abandon those kids. She would never do that. There's a bond between mother and child. I've seen it, you've seen it. It's powerful. It's sincere. That's not to say that one out of a million people do leave their kids, kill their kids. Yeah, it's happened, but by and large, unless you know something about this woman that nobody else does, there's no way.”

Palmer (Hans' mother) said "I can't imagine her leaving the children," Palmer said, adding, "Something must have happened to her.

Hora then recounted Nina's plans for her future, the pictures on her refrigerator, the money she left behind.

Hora read Nina's text message to her boyfriend at 12:55 on her last day:  “We are at the BB finally and are having lunch. I'm sorry I missed your call, my love. It's great that you stopped to say goodbye. Have a fun trip, pirates. Love you lots.”

I'll not go through all this except to say that it was sufficiently compelling that few on the jury will actually believe at this point in the trial that Nina Reiser voluntarily skipped town.
If you are keeping score, here, mark this down: Paul Hora has persuaded all reasonable jurors (are there 12?) that Nina did not skip town on September 3, 2006; she had planned to stay in the game.

Then Hora moved to Hans' behavior and made the point - supported by the behaviors we've already talked about in this blog – that Hans acted as if Nina was dead and as someone who was perfectly comfortable with that.  Hora quoted e-mails from Hans - “You are evil” and another one comparing her to the Nazis. 

[I can find no reference, however, to an e-mail (Nina's reply was suppressed by Judge Goodman) in which Han threatened Nina.  Is this in a set of documents that the jury will be permitted to review? Again, this e-mail, if seen by the jury would reassure some jurors who still harbor lingering doubts and trouble other who are leaning for acquittal.]

Hora recounted the bitter arguments the couple had over child custody and chronicled Hans' increasingly diminished time with his children. He referred to officer Denson's warning to Nina about Hans. [Recall the recommendation that Nina get a gun to defend herself.] 

 

All this was part of an increasingly tense accumulation of grievances leading up to September 3rd 2006.  Notably, on August 25th of the same year, just 8 days before Nina's last argument with Hans, he was arraigned for contempt because of delinquent child support payments. Within two days of that fateful Sunday, Hans was still agitating County Supervisor Steele about his divorce case. 

Then Hora used the defense blood witness to stress that Nina's blood on the Exeter house “post” - a droplet spatter pattern – was probably deposited by blood “flying through the air”.  That, he said, “doesn't sound like a nosebleed”.

Hora did an excellent job of reviewing and vividly reminding the jury of all the defendant's cover-up behaviors – too many to recount here.

Hora suggested that the reason that Hans showed up at Adventure Time just before Nina might otherwise have appeared to pick up the children was that he knew she was dead and didn't want the children left alone. 

If you are keeping score:  Hora has convinced the reasonable jurors that Hans knew that Nina was not going to pick up the children before anyone else knew that.

Hans did nothing, Hora pointed out, to check on his children from the time the should have been picked up on the 5th until Ellen called him  late that evening, and still made no effort to get his children or to look for Nina. Hora argued that - assuming Nina was missing - Hans was the logical person to help locate her because he knew her description, clothing, when she was last seen, where she was headed. But Hans chose to do nothing except to say that he needed to see a lawyer.

Hora made further points in his discussion of the CRX, pointing out that it “went missing” on the same day that Nina Reiser “went missing”.

Hora was particularly effective in puncturing Hans' various and sometimes inconsistent explanations about his strange, evasive behavior with the CRX, leaving only one reasonable inference standing: Hans wanted to hide that car from the very first day.

Hora continued to bore in on Hans obsession with the CRX, asking the jury why -  if Hans had just flooded the car with water because of some dreadful smell - would he then sleep in it and live with the smell for eight more days.

Returning to Hans-as-deceptive witness, Hora reminded the jury how clear and exact Reiser's memory was about so many important things, and how he was obsessive about details.  Then -

“[Hans] had 17 months since his arrest in October before testifying in court about how he was going to explain why the seat was missing. I mean, he had to explain that. 'Cuz the first thing you think of is 'this guy's wife's missing, and the body's missing and his front seat's missing?' I mean, it's an incredibly incriminating circumstance. He's gotta offer an explanation for that seat being missing. He has no choice. He's been thinking about it for a long time.”

Hora reminded the jury that Hans had earlier described a plan to reconfigure the CRX for a futon, then he recounted how he had asked Hans about that. “He never once, not once, mentioned the futon plan. And this guy never leaves out details, ever.”  When Hora called him on the inconsistency -- “He looked like he got kicked in the gut. He began to cough. His whole body language changed. He was caught off guard. He hadn't pre-manufactured an excuse like he did for the car seat and all of the other evidence. He was caught in a lie, and boy did it show.”

Hora, assuming (probably accurately) that some of the jurors caught the moment, then asked, “Why did he lie?”

Over and over again Paul Hora connected the dots between a lying and deceptive accused and a guilty accused.  This is undoubtedly why the defense (in my opinion) tried to dissuade Hans from testifying at all...

 

Then Hora raised an intriguing point. The blood marked sleeping bag cover was (according to testimony) at the Exeter house on Sept. 13. This raised a question, Hora posited, about how Nina's blood could have had gotten on the sack.

Hora -”Easy -- it touched another item that did have Nina's blood on it... How easy would it be for the sleeping bag sack to pick up a little bit of Nina's blood from the carpet or seat? It would explain why the DNA result was [a] really faint, low quantity DNA blood sample. It wasn't as if she was openly bleeding on the sleeping bag sack.”

Hora then turned to the first degree – second degree murder question, stressing evidence of Hans' malice towards Nina, and left the matter in their hands.

 

Comments

I’ve not attempted to do justice to this long argument (a full day and a half)in detail.  From all accounts, Paul Hora was at the top of his game and gave the defense both barrels.  In studying his narrative, I was reminded of the “if it walks like a duck, quacks like a duck and had feathers like a duck” line of argument.  Hora could add to this line of argument, I imagined, that Hans was a strange duck (substitute wife-killer, here, for clarity). but a duck nevertheless. 

So you can magine my surprise when Bill DuBois opened h-s own argument this afternoon, by comparing his client to a duck-billed platypus. You just can't make this stuff up.

Hora gets an “A” for an argument in a case where nothing less than a “A” will do.  I'll cover the defense argument tomorrow.

 

JBG

April 15, 2008

Head's Up! Update

See my update below

JBG  

  

From Henry Lee's live blog, we've just learned:

"Hora then turned to his desire to admit certain e-mails found on Reiser's hard drives. An e-mail that Judge Larry Goodman had previously barred from being introduced into evidence should now be entered with certain redactions, Hora said, and the judge agreed."

I believe this is the previously barred "threat e-mail" to which I've referred in earlier posts.  If i'm right, letting it in at this point - even in redacted form -  will be a very serious blow to the defense.

[][][]

I'm posting this update at 5:10 PM just before I must attend two meetings and before  Henry Lee has finished recounting Paul Hora's argument.  To this point, Hora is doing very, very well, hitting all the right points, showing passion where appropriate and closing in.  If you haven't done so already, I recommend you follow Lee's live blog at http://www.sfgate.com/cgi-bin/blogs/localnews/category?blogid=37&cat=1428 . I'll make more specific comments and observations tomorrow.

JBG

 

 

 

 

April 14, 2008

WHO WOULD BELIEVE IT?

 

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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
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.]
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WHO WOULD BELIEVE IT?

 

The prosecution has rested its case in chief, and may not produce any rebuttal evidence. 

 

In the last session, a week ago, Reiser’s defense testimony was left dangling because the two hard drives finally recovered by the prosecution had not yet been examined.

 

The Sheriff's forensic computer expert, Kyle Ritter, was called by the defense in the morning session.  It was clear from is testimony that there would be no “smoking gun”.  Some of the data was stored on the drives using the Windows operating system, and other data using to Reiser3 and Reiser4 filing systems.  In all it was an enormous data 'haystack', 160 gigs, amounting to more than a million files, including 150,000 e-mails.

 

Ritter was able to devote four and a half days to the project and it was far from enough.

 

On the critical day of September 5, the computer was turned off “for the last time’ at 5:55 PM.

 

Given the time allowed, Ritter was not even able to begin the process of locating any on-line searches that might have been made.  Ritter testified that he would need five more weeks.  Ritter was able to search the drives only using Reiser3 but not the newer Reiser4 system.

 

We’re getting the picture of the prosecution in a major murder case having been time-jammed by a defense delaying tactic, yet no visible sparks are flying, no demands for more time, no attempts to utilize more forensic computer expertise are being made.

 

Although Ritter did not detect any evidence of erasures (that he explained was more permanent than mere deletions) he complained that “I didn't search 30 percent of the hard drives. There just wasn't enough time.”

 

In one exchange, Ritter said, “If you analyze it, depending on how long enough, absolutely you can find data that is deleted, overwritten, empty clusters. It’s just a matter of how much forensic examination you can and will do.”

 

But Ritter testified that the time allowed fell far short of that required for a thorough examination of the hard drives.

In the afternoon session Reiser took the stand again.  Hans removed the hard drives on September 8.  Why?  “I don’t like people going through my computer for all kinds of reasons.  I’ve got financial stuff and some of the financial stuff has to do with the divorce. And I don’t really like the government going through my computer.”

DuBois attempted to present Hans’ choice to testify in the case as a noble decision to disclose the hard drives that he easily could have concealed.

 

My own take on this? This jury will be very skeptical.  After all, Dubois made it clear to the jury in the opening statements last year that Hans would testify, yet Dubois failed to reveal (so far as the evidence discloses) that he was keeping this evidence away from the prosecution even then.  

After some collateral questions, DuBois announced that he was finished, but he invited his client to raise any matters about which he still wanted to comment or explain.  Reiser: “Why are you doing this?”  And a bit later, Hans added, “I wish to change my attorney.”

There was no cross examination by the District Attorney, and Reiser stepped down.  The defense rested. 

The judge announced that closing arguments will begin tomorrow.  This strongly implies that the DA will present no rebuttal evidence. 

I am surprised on several counts: That the prosecution would not be able to affirmatively refute or at least undercut the veracity of some of the defendant’s assertions – thinking of Reiser’s description of where and how his tossed the car seat for example. I am surprised That Paul Hora would allow the hard drives to be only partially inventoried and examined.  My conjecture is that he thinks he has enough evidence.  My fear is that Hans Reiser has exhausted both the defense and prosecution attorneys who are equally happy to be rid of this difficult witness.  Judge Goodman may have spoken for both sides when he turned to the ever-complaining Hans Reiser and said, “I’m tired of hearing you talk.”

IMPORTANT LINKS FOR TOMORROW:

I have prepared and posted two guides for tomorrows important session:  The Silent Witnesses http://jaygaskill.com/TheSilentWitnesses.htm and The Strongest Arguments http://jaygaskill.com/TheStrongestArguments.htm .

In the second piece, I begin with –

 

[][][] 

“THE DEFENSE TRAP - DO NOT RELY ON YOUR VERY WEAKEST ARGUMENT
I still hold the opinion that Bill DuBois needs to broaden the attack on the prosecution case to prevail.” 

 [][][]

And then I present the potentially strongest arguments for each side.
JBG

 

 

 

MANSLAUGHTER?

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Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill
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People vs. Hans Reiser
Monday, April 14, 2008
Manslaughter?

 

Out of the jury's presence, the court has agreed (I can infer this was due to a defense request) to instruct the jury on manslaughter as well as murder.  The DA objected because, obviously, the defense posture (officially, at least) was that Hans killed no one. 

 

Such an instruction (essentially introducing very plausible notion that this was a crime of passion, as opposed to calculation) is not given over a  strong defense objection.

 

In fact, Bill Dubois argued in favor of an involuntary manslaughter choice (rejected by the court) based on the hypothetical notion that Hans pushed his wife down the stairs. 

 

That any manslaughter instruction is being given tells us a great deal about what the defense may really think and possibly reveals the final shape of the evidence as it will unfold this week.

 

JBG

 

April 09, 2008

THE HARD DRIVE TRAP

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THE HARD DRIVE TRAP

 

The last minute focus on Reiser’s hard drives was a predictable consequence of the attempt to hide them for a year and a half.  I am persuaded that Hans was naïve enough to believe that the drives might be secure in his lawyer’s hands.  Their late disclosure will give a sort of “TaDA!” effect to the end of evidence, something that would never have occurred had they been in police hands from the first. As I explain below, that last minute emphasis could cut either way, depending on what is actually found.

 

Advice to Criminals with HARD DRIVES:

 

Never give your suspicious hard drives to the same law firm that you choose to represent you in the related criminal case,  because you can be sure that eventually the material will be discovered by the prosecution.  And you risk damage to the credibility of your own legal team when you put them in this position, especially if it turns out that the evidence has been altered in some way.  Instead, give the drives to another law firm not related to the criminal case and ask them to keep the entire transaction confidential, and please, please don’t be naïve enough to tell them that there is incriminating information on them.  And do not reveal to your criminal defense team that you have done this.  Oh… And do not take the witness stand if you really intend to conceal evidence. 

 

Okay?

 

Here’s the trap.  After all this fuss, it actually helps the defense if it turns out after all the fuss that the drives contain nothing but innocuous, business-related files AND there is no evidence of any September 3, 2006 or post September 3, 2006 file deletion or erasure.  It helps the defense because it reinforces the defense portrayal of a slightly paranoid geek who, though innocent, manages to make himself look guilty because of his personal quirks.

 

I’ve already indicated that there is no chance the DA’s team will find a “Dear dairy, this is how I killed Nina” entry.   But at a minimum, the DA’s expert might hope to uncover copies of threatening e-mails addressed to Nina in which Hans made reference to his martial arts training.  But they might be stale, in effect capturing a much more volatile period in the divorce.  That should not impair their admissibility, but might diminish their forensic impact somewhat.

 

Ah, but an e-mail along those lines within a few weeks prior to September 3rd 2006? That could actually lose the case for the defense, given the enhanced last minute attention.

 

But the hard drive mother lode, if it exists, would consist of any case pertinent files that were written, downloaded or modified by Hans on September 3, and in the immediately following days.  This would give everyone a window into what Hans was most concerned about during those critical evening hours when only the killer knew that Nina was dead. For example, a downloaded map of the Oakland Hills around the time of Nina’s disappearance could be damning. 

 

Hans might have told DuBois, “Don’t worry, there is nothing on those drives to worry about. They won’t find a thing.”  Hans is just clueless enough that he might not realize until, too late, that he has left something truly incriminating behind in those drives.  This is why, in spite of any reassurances from Hans, that  Bill DuBois can’t rest easy until he knows everything that has been discovered on the hard drives. 

 

JBG

 

Addendum:

 

A correspondent who might know, wrote me today:

 

Hans Reiser is one of the foremost geniuses about file systems. He was working for the US government on a DARPA funded project. He was also working with the Russians. To put it another way, he could add or delete any information he wanted to with whatever date he wanted to at any time and it would be totally and completely untraceable.

April 07, 2008

THE HARD DRIVE RECESS

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Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill
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REISER CASE IN RECESS UNTIL  4-14 WHILE THE DA’S EXPERT EXAMINES THE HARD DRIVES

 

Following Reiser’s re-direct examination by Bill DuBois (see the summary in my previous post – or go to > http://jaygaskill.com/ReiserWindsDown.htm ), Paul Hora very briefly began his re-cross examination of the defendant…

 

There were a few questions about Hans’ prior use of the car and the screws and bolds that fastened the trim assembly and car seat that Hans had removed.

Then the entire case was suspended (as I predicted it would) because it turns out that there far too much stored on the recovered hard drives for a quick perusal.  Two million files and 50 million lines of text were detected.  A Sheriff’s Department forensic computer specialist has been and will be very busy.

Judge Goodman advised the jury that the case will resume on Monday, April 14th   and should go to final argument stage soon thereafter.  Presumably, if the DA’s office has any rebuttal evidence, Paul Hora will be ready to present it immediately.  The case should go to the jury the same week.

I will have two pieces ready to post then, both relating to the final arguments, and I plan to put them on “The Out-Lawyer’s Blog” as soon as all the key evidence is in.

Stay tuned…

JBG

 

HOW IT LOOKED AT THE LUNCH BREAK & Later

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4-7-08
REISER WINDS DOWN - Part 1.0

 

Today, Bill DuBois showed a video of the Exeter house that was taken by an investigator about six weeks ago.  Then Hans’ mother returned to the stand to fill some gaps in her earlier testimony.  Before she left to attend the “Burning Man” festival in Nevada she had directed her “slob” of a son to clean up the house and both cars. She added that the driveway had a “permanent coat of leaves”, but she stopped short to saying she had asked Hans to hose down the driveway.

 

Then Hans resumed the stand, trying the patience of both DuBois and the judge with his long winded, frequently off-topic answers. Before the noon break, Hans had managed to tell the jury that in a deposition related to the divorce, it had come out that Nina and Han’s colleague (also Nina’s one-time paramour) Sean Sturgeon had commingled funds. This, according to Hans, meant that Nina had perjured herself when she signed a divorce related document claiming that she had no bank accounts.

 

In other testimony, Hans denied knowing the Fernwood Drive area where Nina’s van was found.

 

Then the subject of the hard drives came up.  Had they been altered before Hans gave them to DuBois? Reiser appeared to temporize by saying that was for an expert to answer. Hans claims that he got rid of the hard drives because of an earlier 2003 federal investigation that required him to fill out forms he neglected to fill out.

 

The subject then turned to Hans’ (alleged) tendency to provoke “social attacks”. Hans: “Part of it is I conduct myself in a way that people interpret or mean that I'm egoistical…” His answer went on for some time. Finally:

DuBois: Did you kill Nina Reiser?

Hans: No.

DuBois: Did you carry any body to any location?

Hans: No, I did not. And that’s how I know you can’t rebut the evidence -- the testimony. There will be no rebuttal evidence. That’s how I know.

DuBois: How do you know that R…’s dream of you carrying a package with Nina in it down the stairs on Sept. 3 is false?

Hans: Because R…. would never be afraid of me carrying anything down the stairs. And in one of the versions he describes ‘shaking with fear.’

DuBois: Did you carry anything down the stairs at all?

Hans: Down the stairs? No. I don’t think I carried anything down the stairs. I didn’t carry anything down the stairs on the 3rd -- macaroni and cheese?

COMMENT:
HOW IT LOOKED AT THE NOON BREAK

Nothing unexpected or otherwise dramatic here, except the echo in Hans’ testimony of a conversation with his lawyers. When Hans says, No, I did not [kill Nina/carry any body]. And that’s how I know you can’t rebut the evidence -- the testimony. There will be no rebuttal evidence. That’s how I know,” Hans is revealing an earlier session when he was warned by his lawyers about saying things that open him up to rebuttal. 

Does Hans reference to the hard drives suggest anything?  If the contents are innocuous, then DuBois wants to close the “but Hans altered them” door.  Note all Hans reportedly said on the hard drive alteration point in the morning session was, in effect - “Get an expert.”  We’re getting used to making allowances for Hans’s interesting word choices, but I think his non-answer was very close to a “catch me if you can” challenge to the DA. 

REISER WINDS DOWN – Part 1.5
Direct Examination Concludes After Lunch

 

Reiser attempted to explain his “inappropriate tone” in an otherwise unspecified e-mail to Nina by pointing out that in a prior e-mail Nina had insulted Hans’ intelligence and education.

 

Comment: Was this a threatening e-mail like the one so far excluded by the court, perhaps something on the hard drive? To raise the explanation preemptively, DuBois must have something in mind that Hans had not previously been able to address.  We should see, soon enough.

 

After amplifying his anti-government ethos by a reference to his  “don’t look in my trunk without a warrant” bumper-sticker, Hans described two camping trips with Nina, one in Yellowstone Park (clearly antedating the couple’s separation by some appreciable time) when his wife was menstruating. Hans implied, but (as far as reported) did not directly assert, that the sleeping bag cover with Nina’s blood on it was taken on that same trip.

 

DuBois then turned the witness over to Hora.

 

///

 

More.

 

JBG

 

 

Reiser: Incriminating Circumstances vs. Seeds of Doubt

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THE PRINT VERSION LINK: http://jaygaskill.com/IncriminationSeedsOfDoubt.htm
 

PEOPLE VS. HANS REISER
The CASE OVERVIEW
[as of Monday 9:00 AM
April 7]
INCRIMINATING CIRCUMSTANCES? 
Vs.
SEEDS OF DOUBT?

 

 

THE Gaskill SCORECARD UPDATED:

 

Weeks ago, I made the following points:

 

To convict Hans of killing Nina, the prosecution will need to advance at least one plausible theory, consistent with all the evidence and supported by at least some of it, covering the following questions:

 

  • Where and when did the killing probably happen?
  • When did Hans have ‘free’ time after Nina was at his door, time when he was unobserved?
  • What method of body disposal would be capable of frustrating the authorities for all this time? 
  • What access did Hans have to that method?

 

So far, the DA is getting a C- on this, but a B+ is probably needed.

 

Weeks ago, I posted the following Scorecard [My revisions are in brackets]

 

>Hans hated Nina and wanted her out of the way:             Proved.
>Nina disappeared under sinister circumstances:               Proved.
>If Nina could come back she would:                              Proved.
>Hans threatened Nina:  Blocked        
[Pending – Hard Drive may reopen]
>Nina’s blood was left behind in sinister places:               Proved
   [Blood evidence is still solid, but some circumstantial doubt was added]
>Hans destroyed key evidence:                                        Proved.
>No one else is a plausible suspect:                                 Open.
                                                          [Sean Sturgeon is the wild card here.]
>Hans has an alibi:                                                          Not Proved.
>Hans has lied about important matters:                           Proved.
>Hans behaved evasively when under suspicion:               Proved.
>The only reasonable explanation is that Hans murdered Nina. ???
                                                                                      [Still open]         

 

ENDGAME ANALYSIS

 

PART ONE – HOW TIGHT IS THE NOOSE?

 

WHEN DECEIT IS AN ADMISSION OF GUILT

 

Q: When can a lying denial be used to prove the truth of that which is denied?  

A: Whenever a jury decides that the lie tends to reveal a guilty state of mind.  

 

Juries are independent arbiters of the facts.  There can be no mandatory rule in this area, except that a witness who lies in one part of his or her testimony may be “distrusted” in other parts of the same testimony.

 

With that qualification, walk with me, if you will, through this exercise in “legal logic”.

 

Assume that a particular situation is either A or B; in other words, when we know it is one of the two possibilities we automatically know it is not the other.  This is basic “Aristotelian” logic, right? 

 

Well, let’s explore consider the following examples.  

 

(a)    Our Witness lies about that Situation, saying that it is B (which makes the witness innocent). It is perfectly reasonable to assume that A is true (i.e., that the witness is guilty) because we know that he is lying.

(b)   Now our Witness solemnly swears to us that Situation really is B.  But this time are pretty darned sure that the Witness is not being truthful with to us; = we can detect this from his demeanor on the stand and we have learned from other evidence that he’s probably not telling us the truth about a whole range of things.  This “other’ evidence is cumulative in that any one piece might not undercut the witness’s credibility but it all adds up to that effect; history just doesn’t hold up. When we conclude that Witness is lying to us, we are entitled to also conclude that A is the case, i.e., that the lying witness who denies is guilty.  This is almost as straightforward as the first example, right?

(c)    Now let’s assume that our Witness swears as he did in (b) that his Situation was B. We are very suspicious about his truthfulness on this point, based on his demeanor. He just doesn’t sound truthful to us.  And we are convinced (not relying on his demeanor) that in some of his other “under oath” testimony he has definitely lied to us. And, yes, there is other evidence pointing in the direction that A is true, not B, but the picture is a little less complete that we’d like.  Here we find ourselves leaning towards A, but we are hesitant.

 

In this schematic, the Witness, of course, is Hans Reiser and the Situation is the question, “Did Hans Kill Nina?” B is ‘Hans did not kill Nina’ and A is ‘Hans did kill Nina’.  

 

In (a), logic alone tells us that the Witness’s false denial amounts to a confession.  But  example (a) is artificial because it was also built into the question that Hans was lying when he said he did not kill. 

 

The other two are real life scenarios. In (b) we can’t absolutely know that Hans Reiser did kill Nina, but we can be reasonably sure that Hans was not being truthful with us when he denied doing it. So in real world example (b) we can readily imagine jurors who are persuaded from Hans’ demeanor and the totality of evidence that he is lying about a number of things and also about the killing. These jurors can properly conclude, based on logic, human experience and common sense, that Hans is guilty of the killing – at least beyond a reasonable doubt. 

 

Now in example (c), things are not quite as clear cut – and they are pretty close to the Reiser case as it now stands. I expect that the prosecution will be able to show that that Hans has lied about some facts important to the case.  The jury will then be asked to conclude that Hans is also lying about not killing Nina, on the basis that his lies all share a common purpose – to conceal his guilt and to avoid accountability.

 

In fact, the jurors are allowed to infer guilt from the various lies and deceptions of a defendant.  Note that the word was allowed, not required.

 

The takeaway point:  When  someone accused of murder has engaged in flight, attempted flight, concealing or destroying evidence, deceptive and untruthful answers to material, relevant questions on the witness stand, these facts (they are really elements of circumstantial evidence, if you will) form a pattern from which the jury is entitled to infer guilt.  The reasoning is straightforward: A pattern like this is more characteristic of a guilty state of mind than an innocent one. The ultimate weight of all the evidence is up to the jury and the defense remains free to argue that innocent people may from time to time act evasively and suspiciously because of mistrust of the authorities or from other concerns, rational or irrational. 

 

A LIST OF THE INCRIMINATING CIRCUMSTANCES

 

1. A perfect storm of motive and timing.

 

  • A restraining order against Hans was issued early on in the divorce.
  • A grave warning to Nina by officer Denton after observing Hans’ anger
  • Hans was trained in the martial arts, earning a black belt.
  • Hans and Nina were locked in a bitter and unresolved divorce leading up to September 3 when the couple so vehemently disagreed about kids on  the Labor Day weekend 2006 that lawyers had to mediate even that.
  • The shaky financial condition of Hans’ business was getting more and more perilous.
  • Hans believed that Nina stole from him.
  • The child custody disputes were ramping up, getting more bitter.
  • Nina’s threat of bankruptcy promised financial ruin for Hans’ company.
  • No one was home on September 3rd except the kids.
  • Hans’ complete distrust of the courts made the legal process seem futile.
  • Nina teased Hans with the prospect of a settlement, then abruptly tried to walk out.

 

2. Hans’ nervous behavior before Nina’s absence is discovered leading to his “I’ve got to see a lawyer” statement.

 

Natalie was in charge of the children’s after school program on the day Nina picked them up for the last time. Nina didn’t show. Ellen had come by to pick up the kids at 2:30, but Natalie wouldn’t immediately release them to Ellen.  She called Hans, leaving a message. Hans did not call back.  Then –about 5 PM, a few minutes before Ellen came back for the kids – Hans arrived.  He mentioned nothing about Nina or the calls.  It seems he was not there to pick up the kids – just wanted to chat about the after school enrollment policies.  The witness remarked that his demeanor was strange.
 
Natalie: ‘He was very nervous-like.  There was no eye contact with me whatsoever, just very hyper. Was not calm at all.’
 

Reiser agreed to let Ellen pick up the kids.  Ellen, called the police after picking up the two kids at school, apparently around 5:30, having tried unsuccessfully to find Nina. She called Hans, told him that Nina is missing and asked him to keep the kids. This is September 5, before Hans mother has returned from  Nevada.  Hans declined. Then Ellen told Hans that she knows Nina was at his house Sept 3.  Hans’ reply: “I need to talk with my attorney.”

 

3. Hans’ pattern of cover-up and evasion behaviors starting before Nina’s absence is “discovered” and ramping up immediately afterwards.

 

  • Having gone to Mom’s boyfriend’s house to pick her up on the evening of September 5, Hans took a nap before he was able to bring Mom back the Exeter.  He was not using the CRX. Altough he knew Nina was missing he allowed Mom to retire without telling her.

 

  • Hans’ suspicious hosing down the interior of the CRX and the driveway. This is followed by valiant efforts to keep the police from finding the car, throwing out the front passenger car seat, and disposing of an interior trim piece, the latter because of the smell.

 

  • Removing the hard drives from the home computer.

 

  • A strange pattern of travel to and from Manteca, investigating  a storage unit there, then traveling as far as the Truckee/Reno area.

 

  • Carrying his passport and cash in a fanny pack with a cell phone the battery of which was removed, thereby disabling and GPS location feature or cell to cell triangulation of his location.

 

  • Lying to his Mom about the CRX in an effort to get her car to use.

 

  • Abandoning the CRX in a place of concealment, running from the location on foot.

 

5. The telltale links between Hans and Nina suggesting foul play.

 

  • An identifiable smear of Nina’s blood on a sleeping bag cover left in the CRX.

 

  • R…’s ‘dream’ about Hans carrying a mom-sized object down the stairs.  For context, note that the couple’s ‘final’ argument would have been upstairs of the kitchen & play area where they were before and after they came upstairs to hug Mom goodbye.

 

  • A prominent, red blood smear belonging to Nina on the front entrance post, a scratch consistent with an attempt to wipe it off, and a trace of Hans’ DNA on the same post.

 

  • Nina’s cell phone in her abandoned car – otherwise eerily untouched and undisturbed – from which the battery was removed just as Hans’ battery was, suggesting (not necessarily proving) a common signature.

 

  • The trajectory of Nina’s car and apparent speed (because the groceries were tossed about) was away from the Exeter house but not towards Nina’s place, suggesting (but not proving) that the car was moved to a place of concealment, away from a place that might focus more suspicion on Hans.

 

HANS ON THE STAND

 

A. New Evidence Generated As A Result Of Hans’ Own Testimony

 

That Stench

No one knew that Hans hosed down the inside of the CRX and tossed away a trim piece because of an awful smell before he testified. Was it the stench of death? Does it explain why he also ditched the passenger seat?

 

The Admitted Lie

Hans admitted that he had lied to the jury in the first minutes of cross examination.  He felt bad. What else is there in his testimony still unacknowledged?

Hora: Let me begin by asking if you're willing to admit, here and now, that when you testified you willfully concealed the fact that you routinely removed the battery from your cell phone after Nina disappeared?

Reiser: Yes, and I feel badly about that.

Hora: And that was a willfully false or deliberating misleading statement of a material fact, do you agree?

Reiser: Yes.

 

Hans Hid the CRX

Hans admitted that he evaded the police because he didn’t want them to seize his CRX.  He contemplated throwing away the police procedural books he kept there.  He parked the CRX on Monterey Boulevard to hide it from the police and “ran like the wind” to get away from the car. [Remember this was the defense examination]

 

The Storage Unit: A Place of Concealment.

Hans admitted that he had explored using the Manteca storage facility to hide the CRX, but decided against it because there were guards 24/7.  Hans explained that he wanted to be able to sleep there.

 

Contents of the Couple’s Last Argument.

Reiser: “I don't like these conflicts with family, you know? It's just horrible. And I wanted to go to a mediator from the very beginning. And I told her that if we didn't go to a mediator, Namesys would go bankrupt.”  Hans was also concerned that Namesys' programmers “really got screwed by this whole thing. They still haven't been paid. They're still owed $130,000, probably more. In spite of the fact that Nina had just offered to give Hans Namesys in the divorce, Hans was “unhappy” when she left abruptly.  Why? “Cuz only the lawyers win in divorces.”

 

B. Testimony That Was Inconsistent And/Or Refuted

Many witnesses get the benefit of “innocent misrecollection”.  Will Hans? This is a witness who can recall exactly the license number of a car that was following him but is vague to the point of dissembling about where he tossed part from the CRX.

Han has contradicted himself at several points.  One is of particular importance: How many times did he sleep in the CRX?  To begin with, he claimed “several”, which would be consistent with his stated reason, elaborately justified by references to “family tradition”, that he got rid of the CRX seat to make room to sleep in the car. But on cross examination “several” shrunk to one. 

Hans has waffled about when he removed the hard drives from his computers, having first suggested that he pulled them between September 6th and 8th. The 6th would have been a dangerous date for Hans because no one (except Nina’s killer) would have known that Hans would be a logical suspect. So Hans refined his “estimate” about the time making it closer to the moment he consulted with DuBois.

HANS: I don’t think that anybody would particularly want the government going through their hard drive.
HORA: Why did you think if you removed this on Sept. 7, Nina’s missing, nobody knows where she is, according to your testimony -- you don’t know either -- why did you think police would be searching your house and your computer on Sept. 7?
HANS: I was told by my attorney that as the husband, I would be the primary suspect.
HORA: In what?

HANS: The disappearance of my wife.

 

All this is pending as of 9:00 AM Monday morning, April 7, 2008.
Hans is still on the stand; the hard drive evidence, if any, has not been revealed. Neither side has rested its case.
 

PART TWO – THE SEEDS OF DOUBT


We can think of a circumstantial evidence case of this type as the attempt to completely encircle the defendant with arrows of strong suspicion, each arrow pointing inward towards Hans Reiser, the “angry, arrogant husband”. 
The defense strategy is two pronged: (1) to weaken particular arrows opportunistically and (2) to open a breakout hole in the circle large enough to accommodate actual innocence.  (1) represents the alternative “innocent” explanations for incriminating circumstances, such as “the blood smear was a nosebleed” or “hosing the inside of my car is a sort of family tradition”.  By themselves elements of this prong of the defense counterattack won’t be enough because of Hans’ poor performance on the stand.  (2) represents the attempt to establish an affirmative defense with sufficient promise that is undercuts the whole prosecution case.  So far, there are three possible ways that the defense could still proceed with prong two: (a) Nina fled the jurisdiction; (b) Sean Sturgeon did it; (c) A mystery stalker did it.

 

Sturgeon
The defense has asked a line of questions of boyfriend Zografos  suggesting that the couple was having trouble and that Nina was in financial distress.  Then DuBois established that Zografos knew that Nina had borrowed money from her ex lover, Sean Sturgeon.  Apparently Nina had asked Sean for money even after she was no longer seeing the guy. But a series of questions designed to elicit damaging character material about Sturgeon were cut off, including an attempt to get in the notion that Sean was a ‘sex worker’. DuBois is pressing against a wall here.  At the time, I concluded that this sort of derogatory information about the ex boyfriend had been ruled out of bounds by the court for some reason.  I wrote: “This is dangerous territory for the DA because when a jury thinks valuable, potential exculpatory information is being kept away from them, they are inclined to punish the prosecution.  DuBois has elicited just enough for the jury to begin to wonder.” I speculated that Sturgeon must have an iron clad alibi or have been ruled out a suspect for equally sound reasons.  And I added, but “if this is not the case, then we can expect the defense to go even further with this line.”

 

Mystery Guy Stalker

 

I said earlier in the trial that “DuBois scored with a series of questions about Nina using Craigslist for dating even when she was with Zografos.  It was all just play, the witness said, telling the jury that he knew about it. But the a seed of doubt was sown.  I speculated: “Several jurors are now asking themselves questions.  ’Is it possible that some creep from Craigslist began stalking her?’  ‘Didn’t we hear about child molesters exploiting that service?’”

 

Was Nina listed on Craigslist?  No evidence was adduced.  At the time, I wrote: “If Nina herself was not listed, that is a fact I’d expect the DA to address.”

 

 

The Son’s ‘Alibi’ – Another double-edged sword

 

The Reiser boy has actually said that he saw Nina leave the Exeter house on September 3 and drive away.  Frankly no one knows what to do with this troubled boy’s testimony.  The DA was able to weaken the partial alibi and the defense has to deal with the rest of the boy’s testimony as well.

 

As I observed at the time:

 

The boy has recounted “vision/dream/recollection (never clear which) about Dad carrying a Mom sized bag down stairs.  Hora asked Grandma whether “anybody, to your knowledge, [was] talking to him about his mother or his father?” Not.

 

Dubois has asked the boy whether he was dreaming.  The boy said he was awake.
 
Then an even more sinister colloquy with the boy was recounted.  He said that Mommy and Dad frequently fought. Though he confirmed that he saw Mom leave the house for the last time, the boy talked about a room in the house where he thought Daddy might have hidden Mommy, described as having an exterior door.  And he reportedly described a fight in which (in Grandma’s words) Nina “couldn't scream because Hans covered her mouth with a scarf.” This was all impossibly vague as to time, place and circumstance and the defense is sure to seize on the concession from the boy to his grandmother that he say his mother leave the house (presumably on the final day).
 
While this will fall short of an alibi, it contains the seeds of doubt, just as the scarf description contains the seeds of terror.
 
Nina’s Escape?

 

This theory is that Nina, who is facing bankruptcy, an impossible divorce, a nutter husband and the cloud of criminal charges for possible embezzlement, too a stash of money (presumably provided by Sean Sturgeon but not yet frittered away by Nina) and bribed her way out of the country to start a new life, vanishing with out a trail.

 

Like the other possible elements of the second prong of the defense case, this scenario is underdeveloped and under-supported with evidence.   The defense will argue – correctly – that the entire burden of proof is on the prosecution and the defense need not prove a thing. That is technically, but not psychologically true in a case where the defendant appears to have been as secretive and deceptive as this one.  More is needed, in my opinion.  And time is running out.

 

Stay tuned.

 

JBG  

April 05, 2008

Reiser - JBG's Argument Primer

As Published On
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

 

 

Print Version Link: http://jaygaskill.com/ArgumentPrimer.htm

 

PEOPLE of the State of California
Vs.
HANS REISER

 

The Argument Primer Part One

 

Here is my pre-argument Overview, with more to come.

 

To convict Hans Reiser, the jury must accomplish four things:

 

  1. Agree that Nina is dead.
  2. Reject the exculpatory parts of Hans’ testimony -- while accepting the incriminating elements.
  3. Reject the suggestions that someone other than Hans is a reasonably plausible suspect in Nina’s demise.
  4. Agree that all the pointers to Hans as the culprit are sufficient to conclude to a reasonable certainty that he did in fact kill Nina on or about September 3rd, 2006. [In this connection the jury can consider Hans’ own testimony as a pointer towards guilt if it chooses to do so, based on an assessment that he has lied to them in some material respect.]

 

 

To acquit Hans Reiser, the jury must accomplish four things.

 

  1. Agree that Hans is telling the truth when he denies killing Nina, while excusing his deceptions and misstatements in other respects.
  2. Agree that Nina is alive – or – that she was the victim of foul play at the hands of someone other than Hans Reiser.
  3. Agree that all the pointers towards Hans Reiser’s guilt in the evidence are reasonably susceptible to an innocent explanation.
  4. Agree on “legal innocence”, i.e., that whatever the ultimate truth of the matter, that the evidence taken as a whole does not amount to “an abiding conviction of the truth of the charge” because an essential “reasonable doubt” remains.

 

If I were forced to bet on the outcome, I would probably (bear in mind I’m writing this on Saturday, April 5, before either side has rested, and before the arguments have even been made) … put my money on a hung jury. 

 

Here are two of the possible variables that will determine the outcome:

 

  1. A “ringer” juror or two:
    • This happens in a few trials a year in any large jurisdiction. A ringer is a juror who - having promised to be impartial - really is strongly predisposed one way or the other for reasons not disclosed in voir dire.
    • Think here of someone who has undisclosed “issues” with the police or harbors a very strong negative opinion of a “woman like Nina”. This would be a juror who will never convict for murder on circumstantial evidence without a dead body.  Such a ringer will have a rock solid argument (even if insincere) to resist other jurors (because it is beyond logic), as in - “Sorry, I watched the defendant closely and I just believe Hans was telling the truth when he said he could never kill Nina.” This is essentially the kind of juror to whom the entire defense case has been pitched. 
    • On the other side, we might imagine a pro-conviction ringer who has “issues” with abusive and insensitive husbands such that the moment that Hans testified all dark suspicions about him were confirmed.   Without ringers, the jury will be able to conscientiously deliberate and each member of the panel remains susceptible to persuasion.
    • Are there “ringers” in the Reiser jury? It’s a crapshoot.

 

  1. Startling evidence that seems to tie everything together:
    • Example one. The defense “dark horse” candidate is Sean Sturgeon, about whom the jury has heard bits and pieces, only, mostly hearsay or rumor.  Note that the prosecution has established that the suspected crime scene was checked for Sturgeon’s DNA and the finding was negative.  Did Sturgeon have an alibi? 
    • Example two.  Remember the compelling testimony of that former OPD officer who warned Nina? Former O.P.D. officer, Ben Denson, who saw the couple frequently during child exchanges at the police station, testified - “He never put his hands on her but, you know, I could tell by the way he was looking at her, there was menace in his eyes…It was very hostile….I told her, ‘You need to get yourself a gun.’’  Now recall this hugely interesting exchange that took place out of the jury’s hearing.  The prosecution has an email from Nina to Hans that (so far) will not be read to the jury, to wit: “I will not continue mediation if you keep threatening me. When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat. I warn you that if you are going to communicate with me in this manner, I will have to end mediation and report it to the police. …”  As I said earlier, jurors who hear this – if they ever do - will tend to think - Too bad Nina didn’t call the police. So the DA still has an opportunity to get this threat – or something similar – before the jury because Reiser’s hard drives are now being examined by a forensic expert.
Footnote to the last point:

 

A correspondent has asked me the following: 
Can you explain why the judge isn’t allowing the prosecution to introduce Nina's "stop threatening me" email?  I would think something like that should be introduced for obvious reasons.  How can it not be allowed?  Thanks. 

 

A very good question.

 

Basically, the judge excluded it because it is hearsay in that the statement by Nina is really being offered to prove, not that Nina may have been frightened of Hans at some point, but to prove that which she asserts in her email about Hans.  In other words, the DA wants the email to show that Hans was threatening Nina, with menace and the prospect of using force.  But Nina is not available to testify.  Now if the DA were to find one of Hans' emails to the same effect, it could and should be admitted in evidence, because Hans can be questioned about it. One possible exception to the hearsay rule is a so called “dying declaration”. But that exception doesn’t get Nina’s email to Hans admitted because she obviously wasn’t dying when she sent it.

 

 

A final note: The defense has carefully avoided allowing Hans to advance the “conspiratorial Russian b….” defense.  This will give the defense some latitude to move to more promising ground – as in suggesting a mystery killer – in spite of Bill DuBois’ more restrictive opening statement. 

 

As soon a both sides have rested, I’ll pose an overview, and I will identify the strongest potential arguments for each side.

 

 

JBG

April 03, 2008

ANOTHER WEEKEND TO PREP HANS, ANOTHER WEEKEND FOR US TO WAIT

As Published On
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

 

ANOTHER WEEKEND TO PREP HANS, ANOTHER WEEKEND FOR US TO WAIT

 

DuBois has called Ryan Gill, a former OPD officer now a San Leandro PD patrol officer, who was a “missing persons” investigator at the time. 

 

DuBois immediately entered the “other suspects” thicket, eliciting from this witness, for example, that Nina’s boyfriend, Anthony Zografos, was ruled out as a suspect because he was elsewhere at the time Nina disappeared.

 

Dubois’ other purpose is to establish somehow that the mysterious Sean Sturgeon was at one time considered a suspect. 

 

Gill: There are no suspects in a missing persons’ investigation.

 

Dubois tried without success to establish the point at which the “missing persons’ inquiry mutated into a homicide investigation.

 

Gill: It's kind of fluid.

 

Then Gill seemed to settle on September 13 as a date after which everything was considered a homicide investigation. At that point, according to Gill, police considered Sean sturgeon one possible suspect. Sturgeon – this is based so far only on hearsay – reportedly “dropped off” a large sum of money on August 31.

 

Then DuBois asked the Gil whether he had heard that young R… described his mother leaving on the day she disappeared. He got the following answer:

 

Gill: I don't think he said his mother left the house that day.

DuBois: What did he say?

Paraphrasing, Gill recounted that R… saw Mom and Dad ‘in a conversation. It was a loud conversation with 'not nice words,' "

DuBois: Are you sure he said that?

Gill: I think he said a medium-tone conversation with 'not nice words.' I don't recall him saying he saw his mom leave.

Then, finally getting to the intended point of the colloquy –

DuBois: If (R…) had said his mother had left the house, in the CALICO [child abuse agency] interview, it didn’t stop your investigation?

Gill: I’d still be trying to find Nina.

Then DuBois changed tack in an attempt to show that police surveillance of Reiser was designed to detect evasive behavior (and possibly induce it) because it would tend to show guilt.

And that is the point where I must leave this case until Saturday afternoon when I will do some catch-up and further ‘big picture’ analysis.  I must assume at this late stage that the prosecution is examining the hard drives, that Hans is being prepared for his final appearance on Monday or Tuesday, and that – from all appearances – the defense has no more bombs to throw at Hora. 

 

But the real suspense surrounding this case remains – Will the DA present rebuttal evidence before this case is submitted to the jury?  Will it matter?

Comments

I have never given much weight to the defendant’s evasive tactics after the police had obviously zoned in on him as a murder suspect. Much more important is Hans Reiser’s conduct before that.  “Why hide the CRX at all?’ is among the many lingering questions this jury will need to resolve. 

When I acceded to a suggestion that I comment on this trial, my very first observation was that People vs. Hans Reiser would prove to be a closely balanced case, with a tilt towards the prosecution.  My second observation was that this case will probably turn on the jury’s assessment of the accused: What kind of a guy is Han Reiser, really?  Would this killing be plausible if he is the killer? 

It is amazing to me that, after weeks and weeks, so little has changed.  This is one of those rare examples of criminal litigation that could still go either way or hang up, much like a baseball game that goes into an extra inning. 

JBG

 

 

 

Reiser: Blood Revisited Today

 

As Published On

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

 

This is a snapshot of a single witness, called out of order today – print version at this link > http://jaygaskill.com/BloodRevisited.htm .

 

BLOOD REVISITED

 

April 3.  Reiser’s testimony was interrupted for the morning session and part of the afternoon session to accommodate the defense DNA expert, Keith Inman, who has worked with OPD criminalist at the Berkeley DOJ lab.  Inman is a well qualified forensic criminalist.

 

The defense expert was examined by Co-counsel Richard Tamor. 

 

Inman did not dispute that the stain on the post in the Exeter house was blood or that the identified DNA belonged to Nina and to Hans. 

 

The blood could have come from a cut or nosebleed but not from a scratch that did not bleed.  Conceivably a stain could have come from someone grabbing the post and falling.  It was at least possible, in this expert’s opinion that – because there was a major contributor to the identifiable blood and a lesser one that the lesser contributor’s contribution might have come from a non-blood DNA source. [Note for argument here – in earlier testimony, apparently not disputed, it was Nina’s blood that was more prominently represented on the post.]

 

Inman also testified that it is not possible – given current technology – to age a particular bloodstain and that the less visible bloodstain on the sleeping bag sack might have come from “intimate contact” as well as from something more “sinister”.

 

The jury learned a couple of important things from this defense witness:

 

(1) The number of swabs that the OPD criminalist, Cavness, did or did not take from the post do not undercut the DNA identification. Whether one swab or three, Nina’s blood and Hans’s DNA were both on that post. (2) There were drops of blood on the post and drops imply, but don’t absolutely prove, splash or splatter.

 

On cross examination, Hora got Inman to concede that a brighter bloodstain would be fresher than an older one. [Note that everyone seems to agree that the post stain was a noticeably bright red.]

 

And Hora got off a beautiful question:

 

“If Hans Reiser got Nina Reiser’s blood on his hands and his hand touched the post or swipes the post, and part of his skin is touching the post and so is her blood, is that an activity that could leave a minor DNA donor of Hans and a major DNA donor of Nina Reiser?”

 

And Hora got a favorable answer, given any expert’s tendency to qualify such an answer.

 

“That could happen, for example if, for example, we have a richer source of DNA on his hands, like saliva perhaps, or a lot of perspiration, so I don't think I would exclude that as a possibility. I don't think I've ever thought about it quite that way. I don't think I favor it.... but it's certainly possible.”

 

That’s as good as it ever gets from an adversary expert witness.

 

My score from this witness is that the prosecution gained ground here.  The earlier confusion engendered by Richard Tamor’s cross examination of OPD’s expert, Ms. Cavness, was cleared up, the identification of the blood was confirmed, and the jury was reminded of this evidence’s importance.  That any blood spot in almost any place has a conceivable innocent explanation is always true.  No expert on either side can create or dispel the contextual framework – sinister or non-sinister  - the overall case provides that.

 

JBG

 

 

 

REISER - SHERLOCK HOLMES vs. THE TWILIGHT ZONE

As Published On
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

 

SHERLOCK HOLMES vs. THE TWILIGHT ZONE

 

Why didn’t Hans’ neighbors see anything suspicious except an evening driveway washing?

 

The fact is that - in the modern urban setting - our neighbors miss most things that happen along the sightlines that loosely connect two or three homes.  For example, no witness has reported seeing Nina’s van parked at the Exeter house on that Labor Day Weekend and no witness – save Hans and possibly young R – has seen it drive away.

 

I’m relying on two correspondents, here, a lawyer and a professor for the following description:

 

The Exeter house is sited on a Hillside with the street-access level on top. The garage of the Exeter house is on that upper level, and can present an open view to an onlooker.  The next level down contains the living room, an entryway where the post with the blood smear(s) and the kitchen. The front door of the house is on this level and opens to a small wooden deck; here are steps leading down from the deck’s edge to the street level.
 
On the lowest level, we find Hans living in a bedroom/office with glass doors that open from the BACK of the house (the garage being the front to a small wooden deck overlooking a small canyon.
 
The stairway to the front door is to the left of the driveway and carport.
 
The neighboring house to the right is immediately adjacent - no fence or other division.

 

EXETER1

 

Photo 1 is of the front of the house at street level, with the garage door visible.

 

EXETER2 

 

Photo 2 is a view from the street.  You can see the small deck and a picture window. The front door of the house is to the right of the picture window, obscured by the tree trunk.

 

EXETER3 

 

Photo 3 is of the glass doors of the basement.

 

For the basic account and photos I’m indebted to Professor Maria Gregor-Chang, a political science professor who has closely followed the case.

 

The famous Sherlock Holmes’ dictum holds: When you rule out the impossible, that which remains – however improbable – is likely the truth.  In the realm of criminal trials, we deal in reasonable possibilities and reasonable certainties, not absolutes (or no one would ever get convicted).  So this jury will need to wrestle with the following conundrums:

 

1. Is it reasonably possible that Nina is alive and well in, say, Russia or Sweden, having cleverly faked out her friends, family and prospective employer, abandoning car, purse, money, credit cards, phone, passports and slipped quietly and suddenly away from her van, parked several miles away with rotting groceries?  That scenario is Twilight Zone conjecture; I’ve already suggested that to most or all jurors the alien abduction scenario is more plausible.

 

2. Is it reasonably IM-possible (as DuBois will argue) that Hans Reiser could have quickly and quietly and covertly killed Nina and disposed of her remains in the time allotted and under the peculiar circumstances?

 

One hopes in vain for a better field investigation in these cases, and (from the defense attorney’s perspective) one hopes for a better client with a better script.  The late Henry Fonda in his prime, with a good script, would probably be acquitted.  If anyone can snatch a conviction from the jaws of justice here, it is Hans Reiser.  Will he?

 

Stay tuned.

 

JBG

April 02, 2008

Reiser Wears Down his Lawyer

As Published On
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

 

 

AFTER THE HARD DRIVES SURFACED
Hans Talked His Lawyer to Exhaustion

 

Let me paraphrase the highlights of a very long afternoon for Mr. DuBois who felt the necessity of going over everything that has so far been mentioned, giving his – sometimes clueless - client a chance one more time to explain himself.

 

Reiser returned to his children’s school on the afternoon of Nina’s disappearance, he now says, because he was procrastinating his cleaning job.  He may have seemed nervous because he wasn’t supposed to be the person to pick his children up.

 

There was a tedious series of questions and answers about Hans’ behaviors with school official and Ellen that afternoon and DuBois was having difficulty getting the expected answers from his client and several jurors were reportedly showing signs of boredom. 

 

Hans was more concise when he explained how his divorce attorney had advised him that the husband is always the number one suspect in a wife disappearance and that he, Reiser, should immediately get a criminal defense lawyer like DuBois.  We the learned that Reiser took his children to the beach on September 6th , that he dropped them at school on the 7th and that his mother was to pick them up from school while Hans was busy with the CRX  - he says it conked out in San Leandro.

 

To the apparent amusement of some jurors, the defense team projected a number of candid family pictures asking him to identify is children, Nina, and mother.

 

Han says that a white powder that was found on the Exeter house’s back porch was corn starch, a foot powder.  He claimed that a DA analysis confirmed that. [The jury has seen no evidence of any powder analysis.]

 

Hans wept when he recounted how his children were taken by child protective services on September 8. He now says that the incident heightened his “paranoia” and prompted him to get rid of the car seat. In Hans’ words, “I just had enough. I just threw it”.

 

[This may turn out to be a key moment in the case.  Do several members of the jury, having the opportunity to see Hans and measure his demeanor, believe of disbelieve this explanation? It was the disposal of something that – to any reasonable person – could be seen as potential evidence, especially for someone who was on notice that he was the focus of a police investigation.]

 

But Hans’ removal of the stinking trim piece from the CRX was explained differently. “Well, not only did I not have my kids, but I didn't have a home, and this way I could make something that would make the car a bit of a home.”

 

Just before the break – precipitated by DuBois’ request for a session recess – Hans was on the brink of potential trouble.  He had just told the jury that he had removed a sleeping bag from the Exeter house after Nina’s disappearance (he says September 8 or 9). 

 

Was it the same bag that police recovered in the CRX?

 

Hans: I don't know.

 

Comments

I’m getting the impression from that some members of the jury are under-whelmed by Reiser’s testimony. Or worse. 

 

A pattern of evasion, obstruction and removal of potentially incriminating evidence is not typically overcome by additional seeming evasion and dissimulation during testimony.  Better, in such a situation not to have taken the stand at all.  The remaining hope for the defense (with respect to Hans’ testimony) is that at least a critical mass of jurors are somehow persuaded that Hans was at least sincere when he denied killing or harming Nina. That is a matter of chemistry, impossible to predict.

 

Clearly there were moments today where it appeared that Hans had slipped off “script”, in the sense that whatever testimony he had led his lawyer to expect suddenly mutated into something else.  In this situation, it is very difficult for the defense lawyer to hide his frustration from the jury. And it is very difficult for a jury to take the witness seriously.  The essential problems with the prosecution’s case remain - it is, after all a circumstantial evidence murder case without an autopsy – but on balance the defendant has helped the prosecution as much as he has helped the defense.

 

This is an opportunity for the prosecution.  If the DA rests without producing effective rebuttal evidence, that opportunity will be lost.

 

Hans resumes the stand tomorrow, April 3rd.

 

JBG

 

 

 

 

 

 

 

THE HARD DRIVES SURFACE

As Published On
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

 

 

THE HARD DRIVES SURFACE
& More

 

Paul Hora briefly continued his cross examination of Hans Reiser this morning by having the defendant authenticate a wiretapped conversation in which Hans talked to his mother on the afternoon of September 20th the contents of which made it clear that Hans was going to stay the night in the Exeter house.  Hans then rented a Ford Escort and probably slept in that car the next two nights.

 

Then the witness was turned over to his attorney and Bill DuBois took up the rest of the morning in redirect examination, eliciting from Hans early on that his client “sneak slept’ in his mothers house because he was forbidden to have custody of the kids.

 

The Dramatic Moment of the Day took place when DuBois produced a manila envelope, removed two hard drives, and – after the usual difficulties with this client - had Hans authenticate them. 

 

Reiser then attempted to justify his purchase of the two police procedurals he obtained at Barnes and Noble, pointing out that one of the books described improper police interrogation procedures.

 

A great deal of time was spent rehashing divorce details. I’ll spare you these because it is clear that that, Hans’ protestations aside, this was an acrimonious split-up. Dubois attempted to have Hans defuse the economic aspect of the divorce as a temper-flashpoint in this exchange:

 

Reiser agreed that Nina and her lawyer maintained that Nina had a community property interest in Namesys, Han’s company.

Dubois: Was there some major bone of contention that upset you to the point of anger?

Hans: Uh, the legal-custody issue was the thing that had me upset.

At another point:

 

DuBois: “[W]as there anything that came between you and Nina at this time, while she was at your house, that made you angry at her?

Hans: No. But later Hans admitted he was “pissy” about “the embezzlement”. [Note – the jury so far has not been given any evidence that Nina embezzled from Namesys, but the perception is relevant to Hans’ state of mind, possibly to Nina’s as well.]

Then – possibly in anticipation of the impact of angry divorce-related emails contained in the hard drives, and some that have already been identified – DuBois led Hans into this set of assertions:

Hans: It's generally known in the computer industry that you should never communicate on any emotional topic by e-mail. … Communication by e-mail was all that was allowed by [the divorce] court order. I would think it’s actually extremely unwise for courts to encourage persons going through a divorce to communicate through e-mail instead of by the phone.

DuBois: Based upon your personal experience?

Hans: Yes.

[I am reminded that the court has so far excluded an email by Nina to Hans referring to his implied physical threats – referring to his martial arts prowess – where Nina threatened to go to the police. There is still a major risk to the defense here- depending on the hard drives’ contents.]

Even though Hans’ business was in extreme financial distress because of Nina and the divorce, he maintained this morning that he and Nina were getting along quite well on September 3, 2006.

Reiser referred to two neighbors, one Mr. Stabb who saw him washing the driveway, doesn’t like Hans and another, Charles, with whom Hans is on good terms.

Normally attorneys are not allowed to lead their own witnesses on direct or redirect examination – except when the witness is ‘hostile’ (a legal term of art, meaning in an adversarial position, not necessarily angry). But DuBois found it necessary to lead Hans several times, with out objection.  This is a sample:

Defense: And were you aware of the fact that Nina played an important role in the lives of the children?

Hans: yes.

Defense: Were you aware of the fact that the kids loved their mother?

Hans: Yes.

Defense: You were devoted to your children, isn’t that correct? [Leading]

Hans: Yes.

Defense: Under no circumstances would you have done anything whatsoever to deprive those children of their mother? [Leading again]

Hans: No

Defense: So when you say that you became upset during the conversation with Nina…

Hans: I didn’t say that I became upset. … [I]t was a very calm conversation but it had serious undercurrents to the whole conversation.

What undercurrents? Hans being “stuck with the bankruptcy” being forced to “take the debts.” [Taken in combination with Hans’ anger at Nina’s ‘embezzlement’ some jurors might imagine a very angry husband indeed.]

Then another leading question:

DuBois: And so she said she had to leave and did she leave?

Hans: Yeah, she did.

This exchange is painfully like a defense lawyer asking the client on trial, “You really are innocent of these charges, aren’t you?” and the defendant answering, “Sure.  Sure I am,” as if the defense lawyer were afraid of getting the wrong answer.

Frankly, getting the wrong answer is an obvious defense risk with this client.  The most damaging things that Hans has said in front of this jury were in the form of off-the-page volunteered statements.

Just before the lunch break DuBois returned to the call form Ellen on September 5.  Hans told the jury that, instead of telling Ellen he needed to talk to a lawyer right after she pointed out that he was the last person to see Nina, “Actually, I said she should ask questions, she could talk to my lawyer, something like that.”  Hans felt that “things didn’t add up” because no one told him that Nina was missing before the 5th.

One comment on the morning session
It is simply inconceivable that this case can proceed with Hans safely off the witness stand until the contents of the hard drives have been examined and evaluated by the prosecution. I’ll save the rest of my observations for later
JBG

 

 

 

 

 

 

 

An overview of Han Reiser's Testimony to Date

As Hans finishes up today, and the case winds down this week, I have posted a reprise of his testimony so far - in context.  Here is the link: http://jaygaskill.com/HansInDockReprise.htm .

J

April 01, 2008

THE APRIL FOOL’S DAY SESSION WITH HANS

As Published On
The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Sitehttp://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

 

THE APRIL FOOL’S DAY SESSION WITH HANS
Print Version Link > http://jaygaskill.com/AprilFoolinCourt.htm
TUESDAY, APRIL 1, 2008.

 

This is a snapshot of Reiser’s testimony. I’ll have some comments at the end of this interim posting, and more after DuBois’ redirect tomorrow.

 

SCHEDULE

 

In a non-jury session on March 26, the defense announced that it will call a DNA expert tomorrow (presumably interrupting Reiser’s further examination if necessary).  Other defense witnesses will include Nina’s boyfriend, Anthony Zografos, Ryan Gill, a “missing persons” investigator, and the OPD officer who took young R’s original statement.

 

THE CALL FROM ELLEN

 

Hans resumed his interrupted cross examination by confirming that Ellen, Nina's friend – the one who had picked up the children at school when Nina didn't show and Hans' mother was unavailable -- had called Hans at 9:21 P.M. on Sept. 5. Reiser says he took the call at Mark's house, the residence of his Mom's boyfriend.  Recall that this was the phone call monitored by OPD with Ellen's consent, the call that ended when Hans said 'I need to talk to my lawyer”.

 

Q: Did Hans say that? Hans: “I can't recreate the wording."

 

WASHING THE DRIVEWAY

Hans agreed that when he returned to the Exeter house (we assume taking Mom home with him, using her hybrid) he began washing the driveway.  In later testimony, Hora showed Hans evidence that on the night of September 3rd the nearly full moon was bright. Hans claimed not remember the moon.

Hans testified that he had washed the Exeter driveway on only two occasions, both because of tree droppings – September 3 was the second. Did he do a better job washing the night of September 3rd? Hans could not recall.

 

WASHING THE CRX AND THAT AWFUL SMELL

Before examining Hans about what he washed or otherwise disposed of that night, there was this set-up exchange:

HORA: And you're saying you didn't commit any crime when she was at Exeter, right?

HANS: That's correct.

HORA: Had nothing to hide that afternoon, right?

HANS: That's correct.

Then Hans was asked about washing the interior of the CRX with a hose, requiring the use of a siphon pump to remove the water.  That exchange elicited this unexpected gem:

HANS: The thing you haven't asked me if after the siphon pump, the smell remained, and it was a fiasco.
I can imagine a number of jurors thinking: Smell? You don’t suppose….

There followed a series of questions about the smell – What was it? When did Hans notice it? And so on.

Hans settled on spilled milk, probably on the carpet in front of the passenger seat but permeating the CRX. Hans was unspecific about when he first became concerned about the smell, but presumably he didn’t want his mother to complain.

HORA: Did you try to clean it?

HANS: Yes.

HORA: Did you also hose out the back of the car?

HANS: Uh no, but I did clean the back of the car.

HORA: So you didn't spray any water in the back of the car?

HANS: No, but I think some water got back in there.

 

THE MISSING TRIM ASSEMBLY
In related questioning Hans revealed that he had removed a “trim assembly' from the rear of the CRX because it smelled. 
Where did Hans dispose of it?
Hans was unable to say, except that he put it in a trash receptacle somewhere in Oakland or San Leandro.

There was a long exchange about Hans’ long postponed plans to make the CRX more comfortable - apparently that project became more urgent on the evening of September 3, 2006 and in the ensuing days.

 

THAT FINAL DIVORCE DISCUSSION

In a separate line of questioning, Hora took Reiser through the events on September 3 from the time Nina arrived until just before her departure. Some highlights:

·        During the couple’s divorce discussions, the two children were eating by themselves on the lower level of the home. 

·        Hans reiterated that Nina had offered to give him her interest in his company because Nina and her divorce attorney (Shelly Gordon) had concluded that the asset “was worthless if they tried to take it from me. It's a company that has upon my arrest, became absolutely worthless.”

·        Hans was unable to say whether Nina told him that night said she was going to file for bankruptcy, but he opined that he, himself, had contemplated filing under Chapter 13 to buy time for debt relief. 

·        When Nina abruptly decided to leave, Hans denied that he tried to restrain her: “Nothing prevented her from leaving except my talking.”

 

MORE

In follow up questions, Hans said he only slept one night in the CRX after the seat was removed. He moved a red box of documents from the Exeter house to a rental car at some undetermined point.

Hans pulled several thousand dollars from his bank soon after Nina's disappearance because he thought it would be “safer” in his fanny pack.

Why did Hans visit Reno in late September?

Hans: When I looked at a map and calculated that it was four hours away.

Hora: Why did you choose Reno as your destination? Were you looking for something that was four hours away?

Hans: Four hours is my driving limit in terms of comfort for my legs?

Hora: Why did you withdraw money from a U.S. Bank in Truckee if it would charge you a fee?

Hans: Because people are following me.

Hans apparently spent several days there. Doing what?

Hans: You can surf the Web at various places.

Evidently, Hans missed a child custody hearing on September 27th because he had not yet returned from this jaunt.  As a result he missed confronting included Nina's mother, Irina Sharanova.

Rather than take a long explanation, Hora, undoubtedly worn down by this frustrating witness, concluded the examination, leaving the redirect to Dubois tomorrow.

 

[][][]

 

ANALYSIS

Hans continued to fence with Hora today but there were no major internal inconsistencies in his testimony except the ‘selective’ memory problem, i.e., Hans’ uncanny ability to remember some detail as if he has an eidetic memory, then becoming suddenly unable to recall where he tossed potential evidence.  A “memory lapse”, however improbable, is a better tack (for someone attempting to hide things) because we can be sure that the DA’s office is leaving no stone unturned to recover the missing car seat or to demonstrate that it couldn’t have been disposed of when and where Hans testified before.  So in this session, so far as I can tell as of the break, Hans has provided the DA with no refutable material details.

Jurors are probably seeing this through two lenses, one that treats every new revelation darkly (a possible bankruptcy discussion as a hot topic that might have set Hans off, a frantic washing of the CRX as an attempt to get rid of the smell left by Nina’s corpse), and one that is still unpersuaded that Hans could have pulled this off (asking in effect, ‘Where’s the beef?” Hans’ loopy behavior proves nothing).  This is why it will be crucial for the prosecution to be able to demonstrate in rebuttal that Hans has not been truthful with the jury.  If that takes place, then a number of other things will fall into place and votes will begin to shift toward guilty-as-charged. 

Can the prosecution get all twelve? That depends of far too many unknowns. Was any juror or set of jurors actually persuaded by Hans’ denials in the stand?  How much damage to the DA’s case will the defense DNA expert be able to do?  In my opinion, the dynamic of this case now puts a great deal of pressure on the prosecution to come up with effective rebuttal evidence.  So far, Hans has not won his case by testifying but he hasn’t given it up to the prosecution either.

JBG

 

 

 

 


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