The Out-Lawyer's Blog

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?
  

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

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.

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 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 3^rd 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.
  

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.”

• 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.
  

• 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.
  

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?

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?

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]

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.

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.”

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 6^th and 8th. The 6^th 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.

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