The Out-Lawyer's Blog

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 20^th 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 5^th.