Resurrecting Reiser

As Published On

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

And

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

All contents, unless otherwise indicated are

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 SF Gate Article - http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2008/07/08/MNN011LDR8.DTL

UPDATE 7-7 & 7-8

Hans Reiser has revealed the location of Nina’s Body in the Oakland hills (Redwood Park) and police have followed up, locating her remains. We are told that the offense will be reduced to murder 2^nd in exchange. Whether the sentencing hearing will proceed tomorrow (7-9) is still unclear. The 1368 motion (to have Hans declared incompetent) must be withdrawn or acted on before the court can proceed. In my opinion, this development virtually eliminates the prospects of a successful appeal, unless the court makes the error of simply disregarding the 1368 motion. More as the case develops…

JBG

Saturday, July 5, 2008

RESURRECTING HANS REISER

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.

JBG