Thursday, March 13, 2008.

Reiser resumes the witness stand on Monday, March 17, in Oakland…


From the point of view of an outside observer, there comes a point in every criminal trial when the whole prosecution enterprise seems balanced on a knife’s edge, a forensic tipping point after which the case momentum will drive sharply to one side or the other. For the Han Reiser murder trial case, that knife’s edge is Monday, Tuesday and Wednesday. Hans Reiser’s own testimony will provide the tipping point, possibly with the help or hindrance of additional proof – like the DNA expert who was expected to testify last Thursday but did not.

A number of careful observers have concluded that the underlying truth of the case is most likely that Hans killed Nina on September 3, 2006 and thereafter pulled off a very clever cover-up. These same observers will tell you that they would nevertheless have difficulty getting past the reasonable doubts barrier to a conviction, if they were on the jury. Consider these edited comments from a computer expert, who wrote me from a continental European country via email:

“I want to thank you for providing analysis of the

Reiser case on your blog. We have excellent trial coverage from [Henery Lee] www.sfgate.com and [David Kravets] Wired-on-line, but … you are providing an important context for some of the events.

“I became aware of the Reiser case because I am a professional free software programmer. I have never worked together with Reiser or even met him, but I know people who have, and I could have easily encountered him through the years. And although the connection is a far stretch, it’s probably as close as I ever came to a murder case inmy life, and hopefully ever will (crossing my fingers here).

“I was convinced that Hans Reiser killed Nina on an impulse and hid her body very early in the trial, and my opinion has not changed. Any explanation of the circumstances of Nina’s disappearance [must] respond to three established facts: (1) Nina disappeared suddenly, leaving behind most of her possessions and abandoning her children and pet. (2) Hans Reiser destroyed potential evidence and showed other signs of an extensive cover up (some of the evidence indicates conspicuous behaviour even before he could learn that Nina was missing). (3) There is an utter lack of evidence for alternative explanations. Any response must address all three points at the same time, but the defense has only attacked (1) and (2) individually, and did not address (3) at all.

“Further support against Hans comes from his background, in particular his anti-feminist view of relationships, and the contentious divorce proceedings. Its too sad to repeat here.

“I should address the ‘geek defense’, being a geek myself, and knowing many of them at a personal level. The geek defense can of course not explain conspicuous behaviour by Hans before he learned that Nina was missing and that the police might track him. In particular, if he removed the battery from his cell phone, showed extraordinary tiredness, and behaved abnormally when he brought his children to the school on Monday, that is all before he learned from other sources that Nina was missing, and the geek defense does not apply.

“Second, although geeks behave different from non-geeks, they still behave quite predictably. I can understand why Hans-the-geek would trash his hard drive when under police investigation. I can not understand why Hans-the-geek would try to hide the car he was using. I can even understand why he would throw away a seat to make the car more comfortable, but I can not understand why he would soak the floorboard with water.

“When a geek decides to clean, something is seriously wrong!

“There are open questions, of course. ….

“I am not part of the jury. I don’t need to be convinced beyond reasonable doubt, and I don’t have access to most of the evidence and other documents in the trial anyway. Thus, I can afford the luxury of basing my opinion on incomplete evidence, and it seems more than reasonable to think that Hans killed Nina and hid her remains.”

A local civil attorney friend of mind, someone with absolutely no axe to grind in this case, echoed the same analysis, adding – I don’t know what I’d do if I were on that jury.’

Accountability for a decision like this wonderfully concentrates the mind. Here is the fulcrum of the tipping point: Reasonable doubt can be a path to evade accountability, after all who can ever challenge the juror who says, “It just wasn’t enough” but means “I didn’t want the responsibility”. But reasonable doubt can also be a ratification of a conscientiously held view – i.e., that “Reiser really might not have done it”. And reasonable doubt can mark the line between those nagging doubts that dog all our important decisions (as the judge will instruct, “everything in human affairs is subject to some possible or imaginary doubt”), and that robust common sense that says, nah, it is just not reasonable to think that all this evidence just happened to encircle an innocent, angry husband – i.e., “There are just too many incriminating circumstances and no other reasonable alternative theory with any actual support in the evidence”.

Now the defense may actually help the prosecution in making the sale (1) by stressing the not-believable theory that Nina is still alive somewhere, somehow having contrived this as a kind of frame-up; and/or (2) when Hans appears deceptive in his testimony.

That’s why calling Hans as a witness was rolling the dice. Any juror who actually believes him must acquit, but the juror who thinks he his trying to deceive will have no problem voting to convict.

When both sides have rested, I will post a guide to the arguments.


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