The Out-Lawyer's Blog

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.”

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 –

[][][] 

 [][][]