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JBG
Wednesday, 7 May 2008 18:06 UK |
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THE PLATYPUS AND DNA
Just in from BBC news.
[Note: All of the excerpted material in quotes below is Copyright 2008 by BBC News.]
Link:
http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/science/nature/7385949.stm
“Scientists have deciphered the genetic blueprint of the duck-billed platypus, one of the oddest creatures on Earth.
“The platypus is so strange that it was considered a hoax when sent from Australia to European researchers in the 19th Century.
“’It has a very weird appearance because it's a mishmash of the bill of a duck, the eyes of a mole, the eggs of a lizard and the tail of a beaver,’ Dr Ponting told BBC News.“They have acute sight, but only open their eyes above water.
“Underwater, they rely on touch and a special sense called electro-reception that allows them to detect tiny changes in the electrical field generated by their prey.”Now we know where to look for the body.
[][][]
More seriously: In the absence of a post-conviction plea bargain (a highly unlikely scenario), there will be an appeal, and I believe that appeal will include allegations of ineffective assistance of counsel.
Allegations of this sort are common, but rarely succeed.
If the expected “IAC” allegations (ineffective assistance of counsel) are based on Bill Dubois’ selection of the “platypus mitigation” argument, they will fail.
In general, defense counsel is charged with the obligation to research the law and the facts, then to make informed tactical decisions in the case, after having given due deference to the client’s wishes.
A bad tactical decision by the defense – as revealed by the fact that it has failed – is not, in itself a basis to overturn a conviction, as long as it is informed by competent factual investigation and legal research and the decision is one that a reasonably competent defense attorney might make under similar circumstances.
It is premature, of course, to second guess the Reiser appeal – after all, much depends on events and decisions not yet part of the public record. But the defense was placed in a complicated, almost impossible situation by nature of the evidence in the case and the unreasonable demands of the client.
This was a situation in which almost any line of defense would present pitfalls, and therefore would be subject to after-the-fact criticism. It is a mistake to simultaneously attempt to mitigate the culpability of the killer and to deny criminal responsibility. But … making that attempt in a criminal case is not, ipso facto, “IAC”.
This may well be a case of “ineffective assistance of client.”
Hence this following free advice to Mr. Reiser: Leave the “lawyering” in your case to the lawyers. This advice is based on a strong lesson, one that applies to my fellow attorneys, to wit: Even a lawyer who represents him or herself has a fool for a client.
JBG
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Print Version Link: http://jaygaskill.com/ReiserEndnoteTheAppeal.htm
People vs. Reiser -- Endnote
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
]]>The People of the State of California vs. Hans Reiser
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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Print Verson Link http://jaygaskill.com/DONE.htm
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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The Policy Think Site: http://www.jaygaskill.comAll 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
Print Version Link: http://jaygaskill.com/HoraAndTheVenomousPlatypus.htm
And
The Policy Think Site: http://www.jaygaskill.comAll 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
MONDAY
April 21, 2008THE 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
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
]]>People v Reiser (in argument)
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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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.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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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[][][]
And then I present the potentially strongest arguments for each side.
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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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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.