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July 18, 2008

A 'Simple' Minded Analysis of the Mortgage Meltdown

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The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1


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

Link to the print version -- http://jaygaskill.com/MortgageMeltdown.htm


A 'Simple' Minded


of the Mortgage Meltdown


Jay B. Gaskill


Now…I’m just a  ‘country lawyer’ as the saying goes, but I do understand fundamental economics and, as a split-time Californian, I understand how it is for ‘ordinary’ people to attempt to live in an ultra-high priced real estate market, and also how what a blessing is not to live in those overheated markets.


Here’s the deal.  Rents are income sensitive, but – until the current meltdown – home real estate prices have been much less so.  When rents and prices for the same commodity diverge too sharply, you are on notice that there is a “correction” ahead.


The movers and shakers among the elites tend to forget the basics, from time to time.  For example: Ordinary folks can only use their real incomes – those after tax, after withholding dollars we actually get to spend – to buy or rent a place to live. 


Therefore, whenever there is a huge disparity between rents and real estate prices in  a given area, you can be reasonably sure that there a speculative bubble has been driving up home purchase prices. 


This condition is easily detected.  Assume a three bedroom home in your area can rent for, say, $2000 per month, but that same home, when sold last year required mortgage payments (assuming for the purposes of my example, a fully amortized, conventional 30 year mortgage) of $4,521 per month. The new owner could not possibly rent the house, in that market, for enough to cover the mortgage.  That is the bright line clear signature of a price bubble, because at some point, incomes always fail to keep up.


Most buyers in these hot housing areas already knew that dirty little secret, but went ahead with the deal anyway.  What was going on?  The buyer really, really wanted to live in a nice neighborhood and willfully bought into the expectation that the sale value of the home would continue to inflate (presumably along with the buyer’s income) for the foreseeable future.  To be fair, that gamble did not seem unreasonable as recently as the year 2000.  In fact, it worked very well for thousands of home buyers throughout the 80’s and 90’s. 


The housing speculative bubble is like all the price/value bubbles of the past, with one major exception.  Most speculative bubbles, especially those in the stock market (think of the internet commerce bubble of 1998-2002), pop quickly and dramatically. But a housing bubble like the present one can fester for more than a decade and collapse more gradually.


This housing bubble was caused by the perfect storm of five converging forces:

Brutal urban commutes for everyone who wanted a nice homes for the kids;

a concentration of high paying jobs in urban areas – and in may instances employers whose recruitment  incentives included ‘excessive’ compensation to lure good people into an overheating housing market;

a subgroup of people who could almost, but not quite play the game in the traditional way;

an institutional disconnect between lender accountability and loan failure; and 

novel financial instruments and devices that were designed to “help” subgroup (c) beat the game in the (ultimately vain) hope that future appreciation would bail them out when needed. 


These were the ingredients of a pyramid game in which the collapse of the entire scheme was so deeply tied to the American financial system that the ripple effects could trigger a much worse calamity that a large number  of loan defaults and evictions, as tragic as that scenario might seem to those whose lives have been disrupted. 


Why this general financial vulnerability? Let’s examine (d), the “institutional disconnect”, more closely.  In the old days, your original lender remained on the hook for the loan essentially forever.  This meant that the loan was given real scrutiny by the bank or other lender who actually would be required to take the property back in the event the borrower defaulted.  Accountability wonderfully concentrates one’s care and attention, especially when large sums of money are involved.

But the current practice is different.  Real estate loans are made by broker/“lenders” who never plan to remain on the hook.  These loans become assets to be acquired by the real lenders who buy the “paper” (consisting of the terms, the financial profile of the borrower and the appraisal of the home).  And these paper assets are sold and resold, finding their way into the asset portfolios of your pension fund and your local bank.


The operating myth has been that home real estate loans are a secure asset, comparable, say, to gold bullion. So this “paper” (greatly exaggerated in value and security) not only found its way into the asset portfolios of banks, pension funds, it became a big part of the asset structure of the super lending institutions, “Fanny Mae” and “Freddy Mack”. These two semi-private super-lenders collectively own – and are on the hook for 5 trillion dollars worth of  mortgages.


For a concise history of these behemoths, originally chartered in 1938 to help provide home loans when most private lenders were out money, go to - http://www.fanniemae.com/aboutfm/charter.jhtml .


Fanny and Freddy are deeply entangled with the federal government.  Given the immense sums involved, the entire financial house of cards is placed at some risk, and – because of the federal entanglement with Fred and Fan – the taxpayers and the federal deficit are tied to this vessel should it ever sink.


This is a good time for concern but not panic.


Here are the three core principles to keep in mind:  (1) Risk takers are necessary for the larger good; without them, things gradually stagnate and progress grinds to a halt (think of the former Soviet Union). (2) Risk should be contained to the risk takers; we shouldn’t tinker too much with their occasional rewards or mitigate their losses too much or we transfer their problems to the rest of us who are not as well equipped to handle the consequences.


Political leaders tend to ignore the third principle:

Like water seeking the lowest channel in any hydraulic system, greed seeks the most easily exploited transactions in any monetary system:  Floating un-vetted loan papers as assets was an open invitation to greed-driven fraud and greed-enabled foolishness.


This raises the major public policy question of the day: Who, if anyone, should be protected against their own foolishness?


Many purchase money real estate mortgages that result in a default do not result in a loan deficiency debt collection from the evicted or defaulting home owner.  The lender is simply stuck with the property and the borrower is free to walk away, leaving behind the asset, but without worry of being sued for any deficiency even when the asset is revealed to be worth less than the debt. 


Ah, would that life were always that simple. 


Deficient second and third mortgages and real estate secured lines of credit still must be paid back.  Moreover, many of the “creative financing” vehicles designed to give the buyers temporary low payments expose these borrowers to ongoing liability, even after a foreclosure/repossession sale. And  not all jurisdictions protect purchase money mortgage holders equally against a post-default deficiency.


Still, only a relatively small fraction of all mortgages are at risk.  The rest of the homeowners had a large paper surplus asset and now have a much smaller one.  They have a poorer resale value but the home market is now full of bargains for qualified buyers.


So what’s the big deal you ask? Here’s the analogy: You sell most of the grain for the town, and broker the rest.  You suddenly discover that a small percentage of all your grain is bad.  The entire town finds out.  Rumors start. Pretty soon all the grain sellers you have dealt with freak out.  The town freaks.  You can see where this is going.  No new grain.  Not enough rice.  Depression hysteria.


As a result of the mortgage crisis we will have to live through some uncertainty, alleviated in part by federal actions to shore up key lending institutions. The last major depression really took hold when the money supply dried up.  That simply will not be allowed to take place. We did learn something from the last one.

 But we should not lose sight of the larger picture.  Prices are set by supply and demand and demand is limited by income. 


I’m hearing hysterical voices urging us to “do something” to stem the “collapse in home prices”.  One expert even proposed we try to entice foreign investors to acquire empty houses as second homes in order to keep the prices up!  Am, I the only one who thinks this proposal sounds a bit perverse?  We’re not facing a collapse in housing prices but a several year gradual correction.  Where prices were reasonable (in relation to local incomes) in the first place, we’re seeing gradual appreciation.


Here are my main recommendations:


Yes, by all means, we should take those actions minimally necessary to head off irrational panic.

And we need to protect home purchasers from a deficiency judgment whenever the buyer didn’t commit fraud and the loans were used in the initial purchase of a primary residence.

We should prosecute fraud whenever it is clear enough to make a winning case. [This is not a time for expensive show trials ending in minor convictions or acquittals.]

We need to hold the risk takers accountable without any bailout except for the measures in (1) and (2) above.


Whatever else we do, we need to let the housing market correction proceed until prices self-stabilize. 


We can – and should in my opinion – provide some help in the form of credit support and tax breaks for first time buyers (or post-eviction second time buyers) who want to take advantage (as the actual home occupants) of the new real estate bargains, provided that there is a sober, realistic appraisal of real income and home resale value.  But we need to make certain that the original lenders cannot escape responsibility for making a bad loan. 


Buyer Beware: This simple minded analysis was infected with common sense and old fashioned values.  As I said earlier, ‘Accountability wonderfully concentrates one’s care and attention, especially when large sums of money are involved.’







July 14, 2008

WIRED's David Kravets Corrects The Record

As received today from reporter David Kravets, whose blog on WIRED magazine's web site was an excellent ongoing source of information during the trial. [Correcting John Fuery's account, part of which I posted recently from his email to me.]



Mr. Fuery states in your blog that “When I checked the web site, he had the hand written Reiser attachment but no substitution nor the Pleading cover sheet because he did not know the Pleading cover sheet existed.” Mr Fuery suggests that I did not have such pleading and cover sheet. Yes, we clearly had such documents. I’m NOT referring to the 1368 docs in which he repeatedly mislabel’s the first name of his client as Han. Instead, the documents I believe Mr. Fuery is referring to are the ones in which had San Francisco County and  civil court atop them, with his own handwritten pen line striking through them and rewritten to name the proper court, Alameda County and criminal.

July 12, 2008


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





Hans Reiser’s divorce attorney (John Fuery) who surfaced in court recently has just written me, asking to correct some misimpressions about why he suddenly appeared in the criminal case. 


Mr. Fuery, a 1995 admittee to the state bar, JF is graduate of John F Kennedy University Law School, in Orinda, CA, and has a general practice.  He first came to my attention when, during the trial, he emailed me with the information that he’d printed out a section of my blog commentary and shared it with Mr. Reiser. 



This was the exchange:


j@fuerylaw.com wrote:
Mr. Gaskill,
I am writing to ask permission to send copies of your blog (printouts) to Hans Reiser in jail.
I am sending the 2/13/08 blog already because I presume you will not be troubled by that, but if Mr. Reiser wishes further dates, I would like to have your permission to send them to him.




Anything you communicate to Mr. Reiser should be screened by his criminal trial attorney, Bill DuBois, in my opinion.  I do not want even the appearance of advising a defendant in the middle of his trial!






Trial attorneys are like surgeons. [I should know.]


You don’t interrupt them in the middle of an operation and you really don’t want to end run them by communicating with their clients.  My response to Mr. Fuery was restrained to say the least.



Here, with appropriate redactions – and one correction of my own – is Mr. Fuery’s letter to me…




I had at the time of the hearing last spoken to Mr. Reiser by phone at 7:12am on July 5, 2008.
The sequence of events not reported in the media were the following:
On Friday June 27th Mr. Reiser fired Mr. Dubois through his mother.  That was the first contact I had with Mr. Reiser since his return to Santa Rita.  I had been called repeatedly and due to other work was unable to visit before that date.  
I was asked to take over for Mr. Dubois because Mr. Reiser terminated Mr. Dubois with no knowledge, input or enticement on my part.
In fact, I discussed the matter with Mr. Reiser at the jail that day and he was adamant about his decision.  He asked me to bring in papers to sign substituting me in on a temporary basis until he could find a Public Defender.  Mr. Reiser met with Mr. Dubois on Saturday June 28, 2008 and when I met Mr. Reiser on Sunday the 29th he still was adamant about changing attorneys and his goal was to get a public defender with 30 years experience and experience in appeals of capital offenses and murder trials.  I literally told him that you were already retired.
The document that Mr. Reiser hand wrote appeared on the David Kravets' Wired blog.  The source was Mr. Dubois' office. I know that because when Mr. Kravets reached me, to confirm Reiser's status and who was his attorney, I told him about the papers I had just filed that Tuesday July 1, 2008.  I had received the documents signed by Reiser on Sunday, I faxed the 2 pages before 8 am Monday 6/30/08  to Mr. Dubois office and spoke with Mr. Dubois about the client file 3 times that day. 
In the meantime Mr. Dubois filed the PC 1368 declaration, also on Monday 6/30/08.  When I spoke to Mr. Kravets the afternoon of July 1, 2008 a short time after I filed the 3 page document with the court (A cover pleading sheet, the substitution form and the handwritten "attachment 1" in Reiser's own hand), Mr. Kravets stated that he already had the document and only put the second page on his web site.  When I checked the web site, he had the hand written Reiser attachment but no substitution nor the Pleading cover sheet because he did not know the Pleading cover sheet existed.
On July 3rd I arrived at the jail after filing the "competence document" and was told that all visits were suspended by the attorney of record Dubois.  He had been terminated, but not released by the Court.
I was prevented from seeing Mr. Reiser and still am.
I appeared in court on the 9th to request access to Mr. Reiser in the jail to find out what his actual intent is and was and to obtain judicial confirmation of my release or to prove that I did not abandon my client.
I accepted the job after Mr. Dubois was terminated, Mr. Reiser signed me into the case and I told Mr. Dubois that Mr. Reiser or the Judge would have to sign me out.
[Filed] documents stated that I resigned on July 1, 2008, which did not happen and could not happen under the Rules of Professional Responsibility because an attorney may not abandon a client and leave him with no attorney in circumstances such as these, I went to court to request access to Mr. Reiser as his civil attorney and to put on the record that I did not resign.
Those matters were accomplished and I left.
What Mr. Reiser wanted was a public defender with your experience.  I told him that you were retired -- [CORRECTION by JBG: I am still an active member of the California Bar and an affiliate member of the bar in another state.  Last I checked, my Martindale Hubble rating was A V. John Fuery was correct only in telling Hans Reiser that I would not be available for his case.]  -- and that he should stick with Mr. Dubois because the timing was terrible, but Mr. Reiser does what he wants.
July 3, 2008 at 10:30pm a received a call from Reiser in jail.  He informed me that he still wanted me as his "interim criminal" attorney and wanted me to visit.  The jail was on scheduled lockdown on the 4th and the 5th.  On the 5th at 7:12am I received my last call from Mr. Reiser prior to the hearing in court on 7/9/08.
Thus, I determined that I must make the record that I had not resigned as the re-substitution filing said. Further, I needed confirmation of my termination.





Consider the record augmented and corrected.  JBG

July 10, 2008

Hans Up-Date


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All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007 & 2009 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


CBS 48 Hours will run another hour on the Reiser case, including a post-body recovery interview by producer Paul LaRosa.  I've seen a couple of short clips of that interview via the San Francisco CBS affiliate.  Also, ABC ran a Reiser reprise last night with pre-conviction interviews. 

Both interviews were quite different from the Hans-on-trial persona and to my trained eyes were chilling. 

My impression?  Allowing for the distance created by any video clip and allowing also for any personal bias on my part, I experienced the shock of recognition. I know the type well - rare among the criminal set, but frequent enough to set one's teeth on edge.  He (and yes, the type is typically male) presents as rehearsed & controlled - oozing a with faux sincerity, the kind of person who would sincerely weep at being interfered with ... and little else.  I wouldn't trust this guy with my cat, dog or pet gerbil. 

By all means, form your own impression.


July 09, 2008

Final Deal Pending in Reiser - August 13 is Next

As Published On

The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1


The Policy Think Site: http://www.jaygaskill.com

All contents, unless otherwise indicated are

Copyright © 2005, 2006, 2007 and 2008 by Jay B. Gaskill

Link to the Print Version of this piece: http://jaygaskill.com/ReiserReinterred.htm


San Francisco Chronicle story link: http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/07/09/MNDT11LOTI.DTL
San Jose Mercury News story link: http://www.mercurynews.com/help/ci_9817337
Henry Lee’s SF Gate Blog link: http://www.sfgate.com/cgi-bin/blogs/localnews/detail?&entry_id=27981


NINA Exhumed,


Hans Reiser will soon be on his way to state prison for murdering his young wife, Nina.  Some questions remain, but one of them is not whether Hans is guilty.  His cooperation in recovering Nina’s hidden remains has settled the “who-done-it” issue for all practical purposes.


Nina’s body has been recovered and identified.  The prosecution has affirmed that it stands by the 2nd degree murder deal with the defense – for now.  I would expect Judge Goodman to go along with the arrangement unless the prosecution backs out.  Only materially changed circumstances, such as additional evidence demonstrating substantial premeditation, would likely derail things at this point (although I note that Judge Goodman has announced additional conditions – see below). 


Unless, of course, a wild card shows up on scene.


well… a wild card did show up this morning when a new attorney surfaced in Judge Goodman’s courtroom. John Fuery, Reiser’s old divorce lawyer, arrived – papers in hand - seeking permission to represent Hans from this point forward. 


I believe that Fuery has been in limited contact with Reiser for some weeks. He reportedly now has the defendant’s support in: (a) rejecting the pending1368 motion (filed by Dubois, alleging Reiser’s incompetence); and (b) substituting Mr. Fuery as counsel of record.


As I indicate below, the 1368 motion had to be disposed of before any deal could be implemented; after all, Reiser needs to be ruled competent to agree to any deal. 


It was unclear whether Fuery (not a criminal defense specialist) could really do anything for the defendant at this late date other than complicate the record on appeal.  When the judge took the bench, he asked Hans directly if Dubois and Tamor were still his lawyers.  Hans replied, “yes”.  Goodman: And not Mr. Fuery?” Reiser confirmed.  The wild card event was essentially over.


Then Judge Goodman took up the 1368 matter.  Dubois promptly withdrew the motion.  Out of an “abundance of caution”, Judge Goodman stated for the record that “the court has absolutely no doubt” about Reiser’s legal competence under 1368 PC, and based his “finding” on his own observations of the defendant over the course of the trial.


After a long explanation, Judge Goodman outlined the pending deal, one that he expects to be “ironclad” before he would assent to it.


“The court has to be convinced that the deal is ironclad, that the defendant waives his appellate rights, both state and federal habeas corpus. Quite frankly, based upon the court's observations of Mr. Reiser, I will not accept a deal until I will be convinced he won't able to (engage in manipulation).”




More comments follow the Exchange Section


An Exchange


What follows is a recent email exchange with someone who has raised many of the other lingering issues and my reply, supplemented today with a “final” observation or two.


GKG wrote:


Dear Mr. Gaskill,


 I have a few questions regarding the Reiser case and law in general, and I suspect they can be answered from a single philosophical principle.


 I can understand how everyone should have access to counsel for any legal procedure. I wonder however how a lawyer, in this case Bill DuBois, can defend - versus represent - a guilty client. Do lawyers lie? Do they know their clients are guilty and plead innocent anyway?


 I recall a position attributed to Alan Dershowitz from the Von Bülow trial that he never wanted to know if Von Bülow was guilty. Why? Did Bill DuBois know? From the SFGate blog, he struck me as an intelligent man and sufficiently experienced to know a lie or a set of lies when he sees them. Do lawyers keep representing guilty clients that want to perjure themselves, or do some of them walk away from a case such as that?


 I read the SFGate blog of the trial and saw this one person who was bigger than life, Paul Hora, fighting for justice. A year earlier I'd read Reiser's story in Wired, and figured there was no way anyone could convict him. By the end of  Mr.. Hora's closing rebuttal, I couldn't see how anyone could let Reiser walk free. Mr. Hora made both a strong logical case against Hans Reiser and for Nina Reiser, and at the same time personalized it. Now I read Mr. Hora was involved in the sentencing bargain. What I find confusing is that Reiser killed his wife and just lied for 11 days on the stand. The jury found him guilty of first degree murder, and now administratively he may get a deal with a reduction to second degree murder. How? Sure, he'll still be in prison for at least 15 years, but is justice still served? I can appreciate Nina's family and friends in this, now that they have Nina's body. In 15 years he could walk. To add a bit of a chiller to that, Nina still lives in the genes of their two children, a fact that Hans will never forget.


 Thanks in advance for any insight you might provide. I enjoy your blogs, and respect your views.


Jay Gaskill wrote:




Here's the short version of a long answer. 


A physician will treat a killer who was shot by the police.  It’s a profession and what professionals do.


As to the 'lie' element.  One argues from the evidence presented in court, but one does not knowingly present false evidence.


A client, however, has an absolute right to testify.  That presents occasional conflicts, the resolutions of which would fill volumes of legal ethical theory.  While many criminal  practitioners may not always the best example of professionalism, there is simply no way at this distance to second guess Bill Dubois.


Bill had a very difficult client.  I’ll leave it at that…. 




More Comments




The court would have been unwise to sentence Hans Reiser – deal or no deal – without first finding, on an appropriately developed record, that Han Reiser is not incompetent.  Failing to do that would have created an unnecessary appeal issue. The record is replete with client non-cooperation issues; therefore an appellate court could draw the inference that if Reiser was thought by counsel to be incompetent on June 30, why not earlier – during the trial itself?  New counsel, John Feury (who was not allowed to represent the defendant), is alleging that Reiser is fully competent.  That presented the opportunity for Judge Goodman to put the competence issue to rest.   As of this morning, Judge Goodman has found Reiser competent based on Dubois having withdrawn the allegation and based on the court’s own observations of the defendant over time.  Prudence would require something more – especially to bolster the appellate record – but the court has made the right decision on the merits.  There may be other opportunities to firm up the record.




There are four factors that may explain why the second degree murder deal was agreed to by the DA:


(1)  The DA was sufficiently concerned about the case against Reiser before trial that a plea to voluntary manslaughter was offered – and almost accepted.


(2)  As G points out, the DA got lucky at trial when Hans testified.  Without his sorry performance on the stand a conviction might have not been forthcoming.


(3)  The case for premeditated murder – supporting a first degree finding – was so weak that most expert observers expected a second degree murder conviction.


(4)  As long as the body was never discovered, lingering doubts would fester and even affect the inevitable post conviction appeal. Think, for example, about all the loose-end issues like those relating to Sean Sturgeon. 


But… when Hans produced the location of the body, the prosecution received a forensic benefit over and above consideration for the surviving relatives and friends of Nina Reiser.


Now, most of the appeal issues (certainly those relating to shadow suspects like Sean) effectively disappear.  Not all trial error results in a reversal of conviction, since many can be deemed “harmless error” by the Court of Appeal.  Hans’ belated cooperation has virtually eliminated the practical prospect of a reversal on appeal.  In addition, Judge Goodman has added the requirement that Hans waive all his appellate rights before he will get the benefit of a 2nd degree sentence.  That will require some further persuasion, I suspect, and a more careful assessment of the defendant’s competence…




July 08, 2008

Han Reiser Reveals Nina's Body Location


Here is the link --



NEW and PENDING.... 

(07-07) 20:11 PDT OAKLAND -- Convicted killer Hans Reiser led police Monday to what he said was the body of his wife in the Oakland hills just two days before he was to be sentenced for first-degree murder, authorities said.

More as the case develops....

As the article by Henry Lee in the SF Chronicle reports, the deal - subject to body verification - contemplates a reduction in sentence to second degree murder.  The corpse was located within a short distance of the Exeter House in Redwood Regional Park.  We can now conclude that Hans' evasive excursions were diversions.  The 1368 Motion filed by defense lawyer Bill Dubois still needs to be addressed before sentencing, but any appeal in the case will be undercut by the revelation that, yes, Hans really did kill Nina.




July 05, 2008

Reiser Alert

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


Link to the Print Version - http://jaygaskill.com/ResurrectingReiser.htm
Saturday, July 5, 2008


The sentencing hearing pending on Wednesday, July 9 for Han Reiser, the Linux file system guru and newly convicted wife-killer, will probably be delayed.


Bill Dubois, the trial attorney, has invoked the “nuclear option”.  This means that the defense has filed a written notice per Penal Code Section 1368, alleging that Hans is mentally incompetent.  On the face of it, this motion has every appearance of being a delaying tactic of marginal legal merit, one designed primarily to buy time to “talk sense” into this defendant. To be fair, Hans Reiser seems to be a man so unreasonably self assured that acting sensibly would be a novel idea. So I can readily understand the defense frustration. 


But the threshold for actually being sufficiently incompetent to stand trial - or to be sentenced after one - is very high, probably too high for someone as unreasonably rational as Hans Reiser to meet. But the threshold for alleging that the defendant is too batty for judicial proceedings is very low.  Once the defense even makes such an allegation, it is almost impossible for the trial court not to interrupt the criminal proceedings in order to get an official expert opinion. 


So the next step is for the court to appoint one or more psychologists or psychiatrists  to examine Mr. Reiser and report back in writing.  At stake is the legal validity of the entire conviction.  If Reiser were adjudged incompetent now, it would raise questions about whether he was incompetent during trial.  This would create a challenging issue on appeal.  So Judge Goodman will examine the issue carefully.  Assuming - as is likely - that Hans is not now nor never was legally incompetent during the proceedings, the court will want to put the issue definitively to rest once and for all.


This shouldn’t be difficult.  In my experience, unless the accused is rolling his eyes and drooling or complaining about an alien mind control implant, the “1368 motion” always fails.  Even someone who is legally insane with respect to the offense is almost never found incompetent to stand trial. Of course, the defense team is aware of this – hence the likelihood that the “1368” proceedings were initiated to delaying sentencing. So why delay? 


One new rumor afoot is that Reiser wants to replace Dubois with an earlier divorce attorney (possibly John J. Fuery).  Arguably, the disposition of the “1368 motion” (the issue of Reiser’s competence) would necessarily be litigated first.


There may be another reason for delay.  We’ve all read about the older rumor that the defense team was trying to barter a revelation about the location of Nina Reiser’s body in exchange for leniency. I’ve already pointed out that such a bargain would be very, very hard to pull off. It is now looks like the rumored deal has fallen through or can’t be implemented in time to do Hans any good.  Hence the defense need to buy time.


As to the 1368/incompetence allegation on the merits?  Of course it is possible that Reiser has fallen into a funk as a result of the conviction and is now acting irrationally.  But more likely, this defendant - like thousands of others – just isn’t making the decisions that his lawyers want him to make.


For sure, Hans Reiser has trouble thinking like a lawyer, following legal advice and conforming his conduct to the requirements of the law whenever they don’t agree with his world view.  But if this mindset met the test for legal incompetence, only about 13% of all cases could go to trial. 


There is a constitutional right to reject your lawyer’s advice in a criminal case. But the constitution does not promise you immunity from the consequences of your bad choices.



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