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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

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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

 

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April 28, 2008

MURDER ONE - REISER IS CONVICTED

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

JBG

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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

 

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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

 

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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

 

 

 

 

 

 

 

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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

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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

 

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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

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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

 

 

 

 

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April 14, 2008

WHO WOULD BELIEVE IT?

 

As Published On
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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

 

 

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

 

 

 

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MANSLAUGHTER?

As Published On
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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.]
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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

 

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April 09, 2008

THE HARD DRIVE TRAP

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The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill
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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.

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April 07, 2008

THE HARD DRIVE RECESS

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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.]
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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

 

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HOW IT LOOKED AT THE LUNCH BREAK & Later

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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.]
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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

 

 

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Reiser: Incriminating Circumstances vs. Seeds of Doubt

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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.]
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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