My Dialogue with 2 Intelligent E-mailers

My Dialogue with 2 Intelligent E-mailers

We lawyers are well advised not to rely exclusively on other lawyers for feedback, especially in jury cases. In this spirit, I have edited a couple of recent e-mail threads that reveal the kinds of issues this jury will undoubtedly be talking about whenever this case gets in their hands. There are two questioners in this dialogue, a retired literature professor and a working mother with an engineering background. The latter, having emigrated from the former Soviet Union, has “special knowledge” about Nina’s “type”.

THE TWO “Q & A” EXCHANGES

“Q1” is a well educated adult male, born and raised in the USA

“Q2” is a well educated adult female, born and raised in Russia, living in the US for 15 years

Q1 ASSERTS: I believe you are a kind of prosecution surrogate.

MY ANSWER

I have had no contact with either side in this case. Like a lot of lawyers who leave the “game” aspect of litigation practice, I’ve become more interested in justice than the question of who “wins”. I have no inherent defense or prosecution bias; I have a “merits-should-prevail” bias.

When all is taken into account, as I predicted early on, this case is still likely to result in a hung jury and a retrial. I hope that in the second run of this case — if there is one — that both sides play a much better game. Sometimes as this trial unfolds, it looks to me like this is a class A case being tried by class B lawyers. But I am also aware that each side is constrained by the cards they are dealt. I long to see a really first rate trial unfold, one that will enhance the perception of justice-being-accomplished. I believe that justice is much better served when each side does its best to get all the relevant information out on the table, and each is called – by the other – for misleading tactics.

Q2 ASKS: Strangely things don’t look to me as they look to you. Am I not normal? I am an engineer and have been in this country for 15 years. I have kids, husband, family and friends. I think I can consider myself somewhat normal. You were not as biased before, and then you changed, I am not sure why, but you did.

MY ANSWER

I suspect that this “bias” you detect is just a style of evaluation, really the same sort of thing that Hans would hear from any conscientious lawyer representing him – privately, of course because we defense lawyers always put up a good front to the world. Hans may or may not prevail in this case, but being unaware of “how things look” in the real world won’t help him one whit.

Bias means tending to believe something in spite of the evidence. We would expect Hans’ mother to be biased against the prosecution and Nina’s mother to be biased in favor of it.

Personally, I don’t actually care about the outcome in that sense, only that the truth — whatever that is – prevails in the end.

Q1 THEN MAKES THESE POINTS —

(a) How many spouses per year, female, are killed by their husbands during a strenuous divorce, for example, which seems like the dumbest time to kill one?

(b) How many wives disappear and their corpses are never found?

(c) You can’t just leave kids that age alone, or count on it, for more than a very short time without one waking and needing attention. That makes the 40-hour [time window] scenario almost impossible.

(d) There is no doubt that Nina had extra-marital relationships, at least two. Why wouldn’t one of those men be a suspect? Especially the guy who helped her raid the company’s funds, if that’s true?

(e) My guess is that Hans has insisted on the “Back to Russia” defense because he wants the kids back, not because there aren’t other logical suspects.

(f) When did Hans remove the passenger seat from the car?

(g) And isn’t it logical that he wash it and spruce up the house before his mother’s return?

(h) One tiny spot of blood inside a bag inside the car isn’t conclusive. If Hans was so meticulous, how did he miss the bag? The blood on the doorpost could have been deposited there much earlier, and in separate incidents, since people cut themselves all the time. I do every time I trim the roses.

MY ANSWERS

We’ll never know how many of the vanishing wives were murdered (b), and that is the reason that cases like People vs. Reiser should be handled with all available resources, and with a no-stone-unturned approach to unearthing all of the facts.

I’m disappointed, for example, that there is no indication that the prosecution sent anyone to Russia to interview Nina’s friends. Questions could have been asked re her whereabouts and actions – both before and after September 3, 2006.

As to the dumb homicidal husbands (a), I’ve theorized here that if Hans killed Nina, he probably did it in an impulsive loss of control, not as part of some master genius plan. Even a moderately intelligent killer would never put himself through those 40 hours – or for that matter the additional ten days for follow up that he had before the search warrant was issued. In the real world, guys don’t pick the smartest time to kill spouses, unless they’re cold blooded and calculating. But most are not — just furious and impulsive. This case does not present the signature of a cold blooded murder, in my opinion – just the trail left of a hasty attempts to hide, scrub or delete potentially incriminating evidence.

We’re all agreed that the difficulties attendant Hans’ use of his first time window is the weakest part of the DA’s case (c). If Hans is acquitted, that will be one of the reasons.

Most of us can imagine a moment immediately after Nina is killed when Hans gets the body wrapped, say, in a blanket, loads it into the CRX in the garage, all without the kids noticing. If he did kill Nina, he would have had no choice but to get that part done ASAP. Moving the van would also be a priority, but not as immediate.

I find it plausible that, after Hans’ tucks the kids in bed and verifies that they are asleep, he moves Nina’s van five miles and runs back, all in less than 45 minutes – a not unreasonable interval. BUT this maneuver is hard to imagine pulling off while the children are awake.

And I agree with the doubters that the more extended scenario in which Hans moves the body to some remote place would have been very, very difficult to pull off while the kids were staying with him. Yes, that remains a significant problem for the DA. But it is actually possible Hans could have pulled it off. Recall that Hans has kept the kids overnight on many occasions. So he – and they – would have established sleep patterns. Hans might well have gambled on having, say, between midnight and 4:00 AM for a “special excursion”. This scenario invites the jury to believe that Hans was both desperate and lucky.

What about Nina’s two boyfriends as possible suspects (d)? We (and the jury) can assume nothing, leaving the production of and actual evidence in support of that theory to the defense. Therefore: We’re all entitled to ask – Where was Sean Sturgeon on September 6? Why doesn’t the defense attempt to call him as a witness?

Judge Goodman is both rational and careful. If there were genuinely exculpatory evidence relating, say, to Sean Sturgeon’s “evil propensities”, I doubt if the judge would court the risk of reversible error by forbidding its use in Hans’ defense. But that is the sort of “behind the scenes” stuff we outside observers won’t earn about while this case is in trial.

I agree with the proposal that Hans probably prefers the “Back to Russia” defense (e) for psychological reasons, such as – he wants the kids back.

But that line of defense undercuts the notion that Nina was killed by someone else, doe it not? And the fact Hans seemingly clings to that theory indicates to me that he realized that, once it is implicitly conceded that Nina is dead, all the remaining suspicion turns sharply to the charged defendant.

The defense team, in my opinion, should not be so closely tied to Hans’ vision. Dubois will be making a serious mistake if he continues to bind the defense theory to this “Nina’s Russian flight” nonsense, thereby closing off or seriously diminishing other promising defense theories (like a third party abduction).

If you want the jury to seriously consider the notion that someone other than Hans has killed Nina, you really have to do more than suggest it in passing: You actually have to argue it.

The car seat? Hans probably removed it around September 17 (f). Recall his tool purchase about then? This supports the strong inference that the car seat is removed when it has become very apparent that the police might get their hands on the CRX. After Hans read those police procedurals (on or after September 8) it would have occurred to him that DNA adheres to some car seat fabrics. He just couldn’t be secure until he got rid of it.

So all this becomes part of Hans’ test on cross examination: For example, if Hans can come up with a convincing story about why and where he disposed of the car seat in time for the DA to follow up with a field investigation, he might be acquitted, assuming that the seat is recovered and is clean of Nina’s prints or DNA. But if this jury thinks he’s lying about this or anything else important, or that he scrubbed the car seat, he’ll be staying in prison quite a while. How do I know this? Those are the unwritten rules of trial dynamics. [For example, I am sure that is why “OJ” was bullied by two outside trial lawyers into not testifying- but that is another story.]

Q1’s explanation that Hans would naturally “spruce up the house” and wash the driveway before Mom came back (g) is “logical”, but the logic is all too convenient when it is placed in context with the removal of the hard drive, the standing water on the floorboards of the CRX and the blood traces in the wrong places.

Any attempted innocent explanations of the DNA identified blood traces (h) now hinge on Hans’ credibility and the defense DNA expert. In my opinion – recalling that I’m a criminal trial lawyer, not a mind reader – these blood spots are going to bother the jury, no matter what Hans says. There are no two ways about it: In the total context of this case, Nina’s blood is incriminating because she didn’t live at the Exeter house or travel in the CRX as far as anyone has so far revealed. We’ll know more, of course, when both sides have rested.

Q2 SAYS:

I don’t know Hans nor do I know Nina, but I am from Soviet Union myself, and when I read his description of Nina, her image became so vivid, I know exactly what he is saying. I believe him! I don’t think that he killed her. Even before I read his testimony, I did think that she is absolutely capable of such a fraud. And again I do agree with him, many Russians think Americans are naive, if not to say stupid. I also agree that legal system here is biased against men. They did steal his kids. How would you feel? Why a man of such intelligence as he is, man who was able to invent Linux filing system, isn’t able to create more smooth lies? I think because he is saying the truth.

MY ANSWER

This case is not about whether Hans was wronged in the divorce or for that matter whether he was
wronged by the domestic relations courts when they seized his kids after Nina “disappeared”.

Hans is right to be angry about the family courts. Most males, most of the time in Hans’ situation, tend to get angry about the same thing. This is why that more judges and lawyers are killed every year because of family court disputes than in all the criminal cases combined.

But Hans would be wrong to physically attack Nina, no matter how frustrated he might have felt on September 3, 2006. If he did that and she died — even by accident — he will be eligible for a very long stay in state prison, providing a jury of twelve concludes beyond a reasonable doubt that he did it.

Even if Nina were capable of “fraud”, the evidence before this jury makes it very hard for anyone to believe that she would leave her children —the same kids she fought to keep from Hans. And there is still no actual evidence (just defense engendered speculation so far) that she had access to the considerable financial resources that would have been needed to pick her up from the abandoned van, money, drivers’ license and her passports, and then to whisk her away to Russia to live in wealth and comfort. If the defense want to sell that scenario, some real evidence will be required.

Q2 SAYS IN REPLY

If I would be on this jury, I want to have beyond reasonable doubt picture, minute by minute how he did it. I don’t need to know if he had motive, we all have motives for bad things.

How did he do it?

Let’s say he killed her. Kids are in the house, can see him any second. He would rather die himself, than let kids see their mom dead (my opinion). So he gets her body out of the way into garage, puts her in the car.

He removed car seat later. What for? Was she bleeding heavily, I’d say “no”, for two reasons: The officer did not notice any blood in [the CRX] when Hans was pulled over. And there was not much blood in the [Exeter] house. So, I assume she wasn’t bleeding. Then why did he remove the seat? Possible DNA traces.

OK, Nina’s body in the car. Hans leaves kids alone (I don’t believe he would, because kids of such age will freak out, if they will find out that they are alone). But let’s assume he doesn’t care, leaves them alone, drives Nina’s van, and cleans it up in such a manner that they couldn’t trace any of his DNA in her van. …

Doesn’t make sense. How long her van was parked by his house?

P.S. by no means I have ever suggested that if she was a b..ch it is OK to kill her. I am against any
violence. And one more moment, my husband has a black belt in Judo (sweetest person in the world), had won several championships in Russia, it does take a certain personality. Judo not just martial art it is a philosophy on its own. Only when you are calm you can make you move right. It does teach not to use force unless you have been attacked. It is not aggressive.

MY COMMENTS

If as it seems likely, this was an impulsive, even accidental killing that Hans needed to cover up in a hurry, we can expect him to have taken all kinds of desperate risks over the next several hours. From the perspective of a killer in trouble, what choice was there? Call 911 and confess?

This is hardly a slam dunk case for the DA. Unless all twelve jurors are convinced beyond a reasonable doubt that Hans killed Nina, he cannot be convicted. If the jury can’t reach a unanimous verdict, Hans can be retried once or even twice more, but if that inconclusive result keeps happening, he will be released. When all is taken into account, as I predicted early on, this case is still likely to result in a hung jury and a retrial. I hope that in the second run of this case — if there is one — that both sides play a much better game.

Hans can only be convicted in this case if he screws up on the witness stand. He’s part way there. One wild card Bill DuBois has a DNA expert up his sleeve. Coming at the end of the defense case, it could make a difference.

Q2 has put her finger on what, in previous posts, I have described as the “gaping hole” in the DA’s case against Hans.

In this impulse killing scenario, Hans then hid Nina’s body in the one obvious place — in the CRX. That part could have been done quickly, while the kids were occupied. I think it would involve walking past the downstairs area where they were — in order to go into the garage (if I have the layout right). Her body would have been wrapped in something. Did Rory see this? Or did the Russian social workers plant the seeds of this dark image in his little head? Once the body was in the garage, in the CRX, Hans would have had some time to think things through. He may then have gone to his computer to research his “body disposal options”. If so, he would definitely need to dispose of his hard drive. As a computer specialist, Hans would have known that a mere erasure wouldn’t be enough.

And Hans would have to relocate Nina’s van before someone spotted it and noted the time. We can assume from the absence of testimony from neighbors about that Labor Day weekend Sunday afternoon, the neighborhood was dead. Perhaps Hans could have moved the van it in stages, say, a quick move out of the driveway and down the street while the kids were glued to the television, followed by a longer move when they were asleep.

What about the condition of Nina’s van? I really doubt that Hans would have taken the time – or risked the exposure – necessary to clean it.

He only needed to make sure his shoes were clean and to wear gloves. DNA traces come from stray hairs (hard to find) or from leaking body fluids. A stray fingerprint on some surface in the van would not be very incriminating.

Did Hans really kill Nina?

I wasn’t there. None of us were there.

Lots of arrows point in Hans’s direction, arguably so many arrows that he probably feels that he has no choice but to take the witness stand and be subject to cross examination.

Now that will be high theater…

Stay tuned.

JBG

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