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WHAT WAS THAT?

Note –

The Reiser trial is not in session for various reasons starting tomorrow (March 21) through March 31. The case resumes on April 1, a Tuesday, with defendant Han Reiser still undergoing cross examination.

Let’s talk about that computer and its “secret witnesses” – those two hard drives.

If - as the prosecution alleges - Hans Reiser killed Nina Reiser on September 3, 2006, then he immediately had to solve several problems, the foremost of which was – What do I do to hide Nina’s body?

As soon as time permitted - presumably at night while the children were nestled in their little beds - a killer in Reiser’s situation and with his personal skill set would have turned to his computer. One might expect urgently conducted research, especially into places and methods of body disposal.

No one would have yet known that Nina was even missing, let alone dead, so Hans (in this scenario) would have felt comfortable at the keyboard -- getting his bearings and making plans. Even if he was clever enough not to leave some “Dear diary, I killed Nina” entry, his data searches and downloads would have left incriminating traces. As an expert, he would have eventually realized that merely deleting files on a hard drive doesn’t prevent a forensic computer expert from recovering them. At some point, he would have remembered that dark night at the keyboard: The hard drives must be removed! They must be kept out of the hands of the “government,” – referring to that dark power that was complicit in making Hans’ divorce a living nightmare. Or so the prosecution will argue.

But Hans -- even if innocent – would recall: He had threatened Nina, making dark references to his martial arts capabilities, using e-mail. Even an archetypical “geek-brain’ might notice that such an e-mail might be ‘misconstrued’. MUST hide that evidence!

Now let us place ourselves in the position of Bill DuBois, a well-connected criminal defense lawyer with roots in the DA’s office. One day, Bill is given cash by a quasi-famous and somewhat loopy computer guru while under investigation for killing his “missing” wife. After Bill takes the retainer, his new client returns bearing hard drives: “I am innocent”, he says, ‘but if these fall into the wrong hands, my life’s work is destroyed. Please keep them in a safe place.” What’s a poor defense lawyer to do? The guy hasn’t even been charged. Dubois keeps the hard drives in a safe place.

Flash forward. First some background. The rules have changed in criminal defense practice. There was a time, long ago, when the defense could conduct an investigation in the complete confidence that nothing would ever be turned over to the prosecution. In fact I remember arguing in front of the California Supreme Court (unsuccessfully) against reciprocal discovery. But the rules changed and now the defense must give the prosecution advance notice of the witnesses it intends to call and their interviews.

But one rule has remained intact from the very beginning: If you come upon actual physical evidence of a crime (this usually comes up in reference to a knife or gun), you (meaning the defense) are not allowed to squirrel it away in some safety deposit box forever. In fact the defense runs a serious risk of sanctions if it comes into possession of this kind of evidence and seeks to withhold it from the other side. “But what about self-incrimination and attorney/client confidentiality?” you ask. That relates – for the most part – to confidential statements, not weapons or individual writings.

So here’s the bottom line:

For various reasons, I feel confident that Bill DuBois will avoid the most serious sanctions, maybe all of them, assuming for purposes of this discussion that he has in fact been harboring Reiser’s hard drives these last 17 months. But they must now be produced.

In the scenario where Reiser has actually lied about giving them to DuBois, a serious legal conflict will erupt, possibly generating a mistrial. I’ll not go there in any depth yet, because I don’t know enough about the circumstances. But keep in mind an elementary principle: An attorney cannot simultaneously challenge his client’s credibility and continue to represent that client. And a judge faced with this kind of irreconcilable conflict might be forced to declare a mistrial.

And what about today?

The DA returned to Hans’ disposition of the car seat, then took up the question when and how did Hans first learn that his wife was missing. According to Hans, it was Tuesday, Sept. 5 at 9:21 PM when Nina’s friend Ellen called.

But Hora then asked Hans if he was aware that the school had called him much earlier – 2:30 PM –with an inquiry from school because Nina hadn’t picked up the children.

Hans: I really can’t tell you where I was when the message was left.

[][][]

I’ll return to the balance of Hora’s cross examination this afternoon in later posts, but we can expect several things at this point:

(1) Hans will be on the stand (April 1) for some time yet,

(2) DA inspectors are working hard over the break to find evidence that will contradict Hans’ testimony so far,

(3) if the hard drives are recovered, something damaging to Hans’ case will be uncovered – or – if they are NOT recovered, that very fact will be damaging to Hans’ case.

Do we have a shift in momentum to the prosecution? Of course. Will it be enough?

Stay tuned…

JBG