HANS IN THE DOCK

“HANS IN THE DOCK

A Summary of the Defendant’s Testimony to the Jury and Comments

By

Jay B. Gaskill

A Reprise

GASKILL’S GUIDE TO

THE REISER TRIAL

HANS REISER TESTIFIED IN HIS OWN DEFENSE FROM MONDAY, MARCH 3 THROUGH WEDNESDAY, APRIL 2ND, SEVERAL DAYS ON THE STAND AND HUGE, ALMOST UNPRECEDENTED DELAYS. HERE IS A CATCH-UP SUMMARY OF THE CASE AGAINST HIM FOR THE CRIME OF MURDERING HIS WIFE, NINA –HER BODY HAS NOT BEEN FOUND…

THE CASE SO FAR – REISER COGNOSCENTI MAY SKIP THIS PART

The defendant in this case, Hans Reiser, a computer guru, was in a difficult divorce that threatened the viability of his small company, his life’s work. His wife, a beautiful Russian physician-in-training, was less than faithful and a spendthrift. In due course the couple separated, filed for divorce, bickered about child custody (two single digit kids) and money.

Flash forward to the Labor Day weekend in 2006. After the predictable intra-marital squabble, Hans was delivered the children for a visit on Sunday. At that time he was living with his mother and driving one of her cars, an older Honda CRX. But Mom was in Nevada, due to return on Tuesday evening. Before wife Nina moved to depart, the couple argued over divorce issues for an hour.

Nina hasn’t been seen since. She is not in Russia according to her mother. She has had no contact with anyone. Her car, a van full of recently purchased groceries, was found intact, parked a few miles away on a trajectory that did not lead home. Inside the van, in a kind of Pompeii tableau – everything was in place, purse, credit cards, cash, a rent check and her cell phone with its battery removed. Nina was gone along with her car keys.

Many days later, police discovered Hans’s CRX in a place of concealment: the passenger seat had been removed; there was standing water on the floorboard and they found a sleeping bag cover with a telltale spot of Nina’s blood.

A search warrant was somewhat belatedly issued and executed at the home of Hans’ mother. Police discovered that the hard drive of Hans’ computer had been removed and a single telltale smudge on the pillar in the front entryway revealed both Hans’ blood and Nina’s.

There is much more to the story, of course — Nina’s two boyfriends, dark suggestions from the defense, hints of skullduggery and embezzlement – most without evidentiary support. A couple of vivid images haunt us, mental pictures that this jury will not quite be able to discount: a retired Oakland cop who, after seeing Hans’ menace, warned Nina to arm herself; a dream-drawing by Hans’s little boy (a remembered glimpse or a fantasy?) depicting Dad carrying a mommy sized burden down the stairs.

We’re deep into the trial now with Hans on the stand and the prospect of a week long interruption before the case resumes.

My commentary has been extensive to date… and this case goes on and on…

WHY CARE?

Husband-wife murders are all too common. But the missing body cases are not common; and they are very important. All murder cases eliminate at least one witness – the victim. When additional evidence is concealed or destroyed, alarm bells have to ring. The “missing-body wife-murder” cases are dangerous – as a matter of the larger social policy – whenever a killer notoriously gets away with it because we almost certainly will get a new trend: Murder could become the divorce de jour.

WHAT WILL THE OUTCOME OF THIS CASE SHOW?

This case tests the ability of a jury to convict when a central mystery remains. In the Reiser case, the mystery is not whether Nina has been involuntarily removed from the scene, nor even whether she is still alive, but How did Hans – if he is the killer – so successfully get rid of the body so effectively, given the time constraints.

DEFENSE SALES RESISTANCE: ISSUES & OBSERVATIONS

Alien abduction is easier to sell than the notion that Nina Reiser is alive somewhere, gloating about how she really stuck it to Hans.

The fact that Nina and Hans fought bitterly about child custody and money supplies a motive to kill — and to be killed, not a motive to flee – penniless and childless. [There is no real evidence so far to show that Nina had some huge cache of money; instead it shows her as a spendthrift with Hans’ money, as tending to live beyond her means and at the edge of bankruptcy.]

Men kill all the time over these issues and women get killed, but the roles are rarely reversed.

The Reiser case inhabits that boundary zone between “dark suspicion” and “damned sure”, between common sense confidence and nagging doubt. To sell a defense theory, the defense needs to stay within the “reasonable alternative” zone.

“Reasonable doubt” is an elastic, inherently subjective legal term: It can be expanded to benefit a cuddly, victimized defendant or contracted to convict a cold, lying one; it can be expanded by a jury made hostile to the supposed victim or contracted by jurors feeling more protective of her.

As matters stood before Hans took the stand, he seemed to have lost the “he just couldn’t have done it” advantage. Whether or not Hans Reiser can persuade 12 people that he could not have killed Nina is unlikely – but this is secondary to the real issue: Did he? During the first three days of his testimony, there was no cross examination. Hans denied killing Nina while painting a dismal picture of their marital disputes, a situation so severe that some jurors might find several motives to kill her. At stake is Hans’ credibility. If he is caught in one important act of deception with this jury, the defense is toast.

The very least sales resistance: Why doesn’t the defense avoid the “Nina is alive and protected by shadowy KBG figures” notion? Why doesn’t the defense simply advocate the theory that Nina was the victim of some local thug or abductor? There are several, at least nominally plausible possibilities: A Craig’s List stalker, a former aggrieved boyfriend, or a kidnapper who mistakenly thought that there was a potential ransom to be had.

SOME SCENARIOS, SEQUENCES, CONSTRAINTS & ADVANTAGES

Assume for the sake of discussion that the Reiser killing was an impulsive, angry act, followed by an “Oh sh.., what do I do now?” Let us also assume for the purposes of analysis that the killer was Hans: What was his logical sequence of actions? What were the constraints?

THE MOST PROBABLE SEQUENCE – ASSUMING HANS DID IT

(1) Hans has to get the body out of sight ASAP. The CRX in the garage has three advantages as a corpse container:

(a) It is out of sight and never used by Mom.

(b) It is self sealing. The decomposition smells could be temporarily contained when the windows are rolled up.

(c) It has wheels.

(2) He has to get Nina’s van away from the scene as he reasonably can and still get back on foot to the house before his absence causes a problem.

THE WITNESS CONSTRAINTS

(1) The kids are home.

(2) Mom is returning soon.

This means that Hans (again, we’re assuming for this discussion that he’s the killer) has about 40 hours, but only when the kids are asleep or otherwise occupied. This favors taking action under the cover of night. By the way, the very difficulties that these circumstances present to a killer seem to undercut the notion that Hans would have planned the killing in advance; hence the greater plausibility of an impulsive, even “accidental” killing followed by hasty improvisation, taking full advantage of the time windows. And these constraints imply a double move of the body:

(a) A quick relocation out of the garage to a place of concealment with a turnaround time of, say three hours or so;

(b) A later relocation to a more secure hiding place when the kids are in other hands, or more time is available.

THE TIME-LIMITED “NOBODY’S REALLY LOOKING” ADVANTAGES

There are two key time frames during which the hypothetical “Hans-as-killer” could exploit the circumstances to hide or destroy evidence:

(a) Before Nina is discovered to be among the missing – from about 4 PM on September 3, 2006 until the end of school on September 5th or the morning of September 6th when Mom wakes up, after having gotten home from Nevada – 40-50 hours;

(b) Before the police can secure the first search warrants – about 10 days.

Assume that the murder would have been on September 3, 2006:

· On September 13, a search warrant is executed at the Exeter house with cadaver dogs. [Why wait so long? Oakland police Capt. Jeff Loman: “We don’t have any evidence of foul play.”] The house is searched again on the 14th.

· A search warrant of Hans’ person is executed September 28, 2006. DNA is obtained; he’s carrying cash; his cellphone battery is disconnected

· Hans is arrested October 10, 2006

THE HOLES AND MISSING PIECES

1.No credible reason for Nina to disappear so suddenly, covertly and thoroughly?

2.No innocent explanation for the position and condition of Nina’s car, purse, money, groceries and cell phone?

3.No trail or trace leading to any plausible corpse disposal location, other than the washed down, partly seatless Honda CRX with a sleeping bag cover revealing a DNA-identified, almost invisible blood spot, belonging to the victim?

4.A constrained timeline for Hans to have hidden the body.

5.No other suspects?

POSSIBLE TIE BREAKERS

Why did Hans remove the hard drive and where did he put it?

Why did Hans remove the CRX seat and were is it?

Why did Hans wash the CRX and driveway?

Why was Hans so evasive throughout?

How did Nina’s blood get on the post?

How did Nina’s blood end up in a bag in the car, after it was cleaned?

Who, besides Hans demonstrated a scary hostility to Nina?

Just how implausible are the “Hans-got-rid-of-the-body” scenarios?

Has Hans lied about any of this?

WHAT IS NEXT

Hans will finish testifying. The defense will conclude with one – or more – other witnesses, including a DNA expert. Then the prosecution will call rebuttal witnesses.

After that the case will be argued…

THE BIG DAY BEGINS

Monday, March 3.

Hans has taken the witness stand in a packed courtroom.

Everything is two edged. Hans, well prepared for direct examination, has just described a civil, almost normal domestic scene with Nina before she left the house – forever. This almost idyllic account – for example, Nina is quoted as saying that Han can keep his company – can be seen by the jury as Hans’ true account leading to his wife’s inexplicable disappearance or as a fantasy construct, that when analyzed, reveals the motive of a killer.

THE BIG DAY – Part Two

The defense is still in its direct examination of Hans Reiser; the court is in recess until Wednesday, when the case resumes with client still on the stand.

Hans’ testimony is far to detailed to summarize here.

Go to http://www.sfgate.com/cgi-bin/blogs/localnews/category?blogid=37&cat=1428 for Henry Lee’s (SF Chronicle) excellent account.

The overall purpose of this long narrative is to persuade the jury that Hans was not someone who would kill the mother of his children and – as the story unfolds – to paint a portrait of Nina as someone who was capable of suddenly leaving them. I’ll return to the biographical elements as Reiser’s testimony continues.

Here are some of the pertinent elements that caught my attention:

  1. I’ve already referenced Hans’ testimony that on September 3 2006 Nina Reiser appeared ready to give up her community property claim to a half interest in the company. I find this less than persuasive, given the log standing dispute between the parties, but we’ll see…

  2. At some point in the past, Hans said that he and Nina had sexual intercourse on two sleeping bags. This was offered to support the inference that the blood trace linked to Nina found on the sleeping bag cover in the CRX may have had an earlier, more innocent origin than the prosecution maintains.

  3. Hans eventually came to the conclusion that Nina didn’t love him as he loved her. “I think Nina loves attention and needs to be loved but does not herself love.”

  4. Hans wanted to have children but Nina was less interested.

  5. Hans admitted removing the hard drive from his computer. The reason? He didn’t want the government to take it.

So far so no one has asked Hans what he did with the hard drive, and what he was hiding. Observers on the scene estimate that Hans will be on the stand in direct examination all day Wednesday and that the DA’s cross examination will take up at least the next full day.

Wednesday, March 5

WHY SO BORING? WHAT IS NOT BEING SAID? MEN HAVE KILLED FOR LESS.

By all accounts, today’s session with Hans Reiser still on the stand, still on direct examination, still led by his attorney, Bill DuBois — was a crushing bore.

I suppose that the defense strategy might be to so inundate the jurors with the mountainous minutia of Hans’ troubled – and in contrast with, say, Bill Gates – tragically diminished life, that the jury will be stirred by pity to give the poor lad the benefit of all doubts and … acquit him because, after all, he was treated so badly by Nina…

For me this resonates in an eerie way with the mitigation phase in a death penalty case, where the thrust of the defense evidence is designed to evoke the “OK he is a murderer, but we feel so sorry for the poor SOB that we will spare his life” response.

But that’s not the game: This jury is being asked by the defense to walk the defendant out the door.

Here is a lens you can use to more closely examine the defendant’s testimony: Think (for this exercise) like a prosecutor – What is damaging? What can Paul Hora use in final argument?

So here’s the scorecard:

Day One – Yesterday

Hans tended to ramble in his answers, but the jury learned that just before Nina left the building on Sept. 3, 2006, she and Hans talked about divorce issues.

Nina – this is according only to Hans here – was going to marry boyfriend Anthony Zografos.

Hans told Nina that he was no longer going to pay her child support ($1,000 a month). Nina did not agree.

Nina would have to repay Hans for alimony payments he had made. Nina – we can infer – did not agree.

Hans would have legal custody of the kids. Nina did not agree. The couple also argued about the boy’s dental care.

According to Hans, Nina agreed that Hans could have his company. We can reasonably infer that Nina would never have made this concession.

After this one hour long “discussion” (we can infer that it was a bitter argument), Nina refused to keep talking with Hans. Breaking off a discussion like that is known to infuriate males.

Nina then called the children to upstairs for bye-byes. [The front door to the Exeter house is at street level.]

Little R…. hugged Mom. Then – in Hans’ courtroom account – Nina goes out the door.

Here is Hans’ description of what happens next: “The minivan starts up and drives away.” Note the passive voice here. It would work equally well if someone else, say Hans himself, drove the car…

Was this a grammatical accident or a revelatory slip?

Hans said he never saw her again. Some jurors might add – he never saw her again … alive.

Clearly this was the description of an ongoing domestic fight. From the prosecution’s POV, one only need add a single provocative element, like a taunt or threat, something one could easily imagine pushing Hans’ button or jerking his chain — something like — “I can close down your company!”.

This sort of thing can easily provoke a sudden violent response.

In this hypothetical scenario, it need not have been a killing blow (recall, however Hans’ martial arts training), but an injurious one might have initiated a tragic cascade of events — “Oh sh..! If I call 911, I’m really screwed” — leading to Nina’s death and a hastily improvised cover-up.

Every murder involves the elimination of at least one witness.

Day Two

This is Hans, describing how the marriage began to unravel over money issues:

“Well, there are things in retrospect now, like we’re running really low on money and yet, her credit-card records show that she spent $20,000 on clothing in 2003. Um, at the time I had cut somebody’s salary from $5 an hour to $3.75 an hour, she spent over $1,000 on jewelry purchases at the House of Jewelry, in credit-card debts. And this seemed kind of nasty.”

On May 15th 2004, Nina locked Hans out of the house.

This is the picture of a potentially ruined man, one with a huge set of grievances.

So Hans moves in with mom and pays rent for the use of the CRX. When DuBois showed Hans the video of an investigator demonstrating how someone could use the CRX, with seat removed, to lie down in, Hans was also shown pictures of the sleeping bag and carry bag – the same bag having Nina’s DNA. Hans wanted to change the subject.

As to the bitterness of the divorce, Hans said: “We’re not very physical people. You can be vitriolic in words without coming to blows.” The jury will later be asked to recall that Hans was, for a time, subject to a restraining order after having “shoved” Nina.

Perhaps the most interesting exchange of the day was stricken from the record. The ever persistent Bill DuBois is still trying to get derogatory (and menacing) information about Nina’s ex-boyfriend, Sean Sturgeon, before the jury. This was about Sturgeon’s possible complicity in taking money from Hans’ company.

DuBois: “Do you have any idea of the total amount of money she may have taken for her own use while she was managing your Namesys revenue?”

Hans: “Based upon Sean’s note, which we obtained at the settlement, I think a lower bound on the amount is $150,000, because Sean claims to have loaned her $150,000 starting in May 2004 to the time he wrote that note.”

WHAT TO MAKE OF ALL THIS

If an estranged husband thinks his wife has not only been engaged in an affair with a business associate, but has also taken money from his company (again there is no evidence before the jury of actual embezzlement), and that she is being patently unreasonable about alimony and child support, and that she is keeping him from his children and stands to ruin his business…. Men have killed for less.

Every element of proof about how Nina “did Hans bad” has this double edged quality – it evokes sympathy, and it supplies a very plausible set of reasons for Hans to have gotten angry enough to have impulsively done something that was so terrible he cannot now admit it.

This disposition of Hans’ hard drive and the missing car seat cannot be fully explained by what Hans has offered so far. Perhaps wisely, the defense has let the narrative end on these points with Hans’ casual, mundane explanations. But Hans will be required on cross examination to explain in much more detail why he did what he did and to tell everyone where these things are right now. An “I don’t recall” won’t be good enough for a computer genius with an excellent memory and blood in his car.

This will go on for some time.

A GAG ORDER, HANS Cries, NO DNA WITNESS

Hans Reiser has been on the witness stand all day. There really is little of note to report – at least little that will affect the outcome of this case..

This afternoon, Hans Reiser admitted to being – his own words — “a patronizing asshole”. And, as to his martial arts training, he opined as follows: Being a Black Belt in judo “makes you a calmer, more level-headed person.” I imagine at least one juror adding, “until Nina pushes your button.”

The entire rest of his testimony – once again aptly summarized by the Chronicle’s Charles Lee – is available on line at http://www.sfgate.com/cgi-bin/blogs/localnews/category?blogid=37&cat=1428

The expected DNA expert did not testify today.

I believe that the defense is marking time here, doing no harm to the defense case, but little else, trying to run out the clock until the onset of Judge Goodman’s vacation next week.

The trial will not resume until Monday March 17.

Why do I say that the defense is running out the clock? The prosecution needs to catch Hans Reiser in a material misstatement. This requires that someone – obviously that would be Paul Hora – press Hans for details about why and what he did with key items of evidence in the case, notably the hard drive and the car seat among other things. In a perfect day for the prosecution, that would have taken place today, giving the DA’s inspectors a full week to check out Hans’ story and come back with rebuttal evidence. But it wasn’t a perfect day for the prosecution because, for now, the defense controls the flow of evidence in the courtroom.

Hans’ day ended in tears over the way he has been treated by the authorities, followed by a series of explanations about why he evaded the authorities, why he bought police procedural books at Barnes and Noble and so on. Not to be too cynical here, but obviously a lot more thought has gone into Hans’ testimony than into his earlier conduct. As to the prospect of the books’ discovery – “I figured if I was innocent, it wouldn’t really matter.” Again was this accidental syntax or unintentional revelation?

Most people already know if they are ‘innocent’.

But the defense does not control the flow of information to the press. Today, Judge Goodman issued a so called ‘gag order’ that in effect prevents both sides from talking to reporters, but in reality is aimed at Bill DuBois who has been chafing under the court’s restrictions relating to Nina’s weird ex-boyfriend, Sean Sturgeon. Whatever dirt on Nina and Sean that has been excluded for evidence will surface later if Hans is convicted as an issue on appeal.

Tomorrow, I will post a “Guide to Following the Reiser Trial” that should place all these trial events in the appropriate context.

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

“WAITING FOR REISER – AT THE KNIFE’S EDGE

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 in my 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.

WHY KILL NINA?

SAINT PATRICK’S DAY IN COURT –

REISER IS ON THE STAND.

My analysis is based on Hans’ performance until about 3:20 PM this afternoon. I will update the picture as necessary tomorrow.

Today Hans recounted his activities in and around the time of the crime in some detail. As of later afternoon, he was still on direct examination by Bill DuBois with no clear end to his testimony in sight.

At this stage, almost everything Hans says has a double edged quality. At any given point in his testimony, he may think he is furthering the defense case, but he is simultaneously providing telltale keys and cues for the DA who will put this together in an entirely different way.

I have some pointed comments about what happened today, but first let me identify the key highlights:

Reiser washed the CRX in the same weekend that Nina was missing. He used a hose – inside the vehicle. This was part of a general house cleaning to please his mother. But he did not attempt to clean his mother’s hybrid car.

So far Hans hasn’t described any general house cleaning activities on the fateful Labor Day weekend in 2006, just the CRX washing & the driveway.

Hans confirmed that he had a 5 PM Sept 5 visit at the kids’ school. This was a meeting that was described earlier in the trial by school witness, Monica Potter. Recall that she recounted that Hans was nervous at the time. Hans now says that his reason for this unscheduled visit to school (after Nina actually went missing we must note) was to put his mother on the alternate pickup list in the event Hans was detained by something “unexpected, unplanned, unforeseen” (and again we must note, when Nina was also unavailable). But, as it turns out, Hans’ mother was already on that list.

Hans did briefly see his kids at school on September 5 – during “adventure time” but gave the school an incorrect cell phone number for himself. This was an accident of memory, he asserted, after he had just pointedly demonstrated his accurate recollection of the license number of an undercover police officer.

Hans first saw Bill Dubois (who is known as a criminal defense attorney) on September 7. Hans apparently first learned that he was being followed on September 8. Hans agreed with his attorney that he tends to the paranoid end of the personality spectrum.

The Last Divorce Discussion and Nina’s Disappearance

This was Hans answer to a fairly simple question from his lawyer today:

DuBois: Did you have anything whatsoever to do with her disappearance?”

Reiser: No, I did not.

DuBois: Have you thought about this?

Reiser: Yes. I thought about, you know, if I had been more emotional with her, um, she would have felt cared about more….I’ve thought that, you know, maybe since I was getting intellectual property worth millions, I could have been less chintzy about the debts, ‘cuz actually, you know, I actually didn’t, they really weren’t that important to me, because they were long-term debts.”

And in a separate exchange–

DuBois: I’m asking you about Nina. What, if anything, might you have done that could have caused Nina to disappear?

Reiser: Um, I opened the door.

DuBois: Did you conduct yourself in any manner you think contributed to her disappearance in any manner whatsoever?

Reiser: Well, I put a lot of pressure on her, and I failed to consider that if you say not nice things to Nina, Nina appears completely unconcerned. It actually means she’s very worried. That’s her pattern. During the deposition she was completely calm, cool and unconcerned, yet when I asked her to come by and pick up the kids at Greg Silva’s office , she wasn’t willing even to go near his office. It was clear that it was traumatic for her to even go near his office.

DuBois: Well, what kind of pressure did you put on her? Can you be more specific?

Reiser: Well, she had embezzled money, she had forged these checks in my name, she forged a legal affidavit, she…

DuBois: Is this pressure you put on her? Can you explain what pressure you put on her?

Reiser: Well, I caught her at it. That’s pressure.

DuBois: Anything else?

Reiser: Um, I told her embezzlement was a serious crime, that forgery was a crime, that she committed perjury.

In a response to DuBois’ question about how this affected Hans emotionally, this is what Hans chose to tell the jury:

Reiser: “I don’t like these conflicts with family, you know? It’s just horrible. And I wanted to go to a mediator from the very beginning. And I told her that if we didn’t go to a mediator, Namesys would go bankrupt.”

Hans was also concerned that Namesys’ programmers “really got screwed by this whole thing. They still haven’t been paid. They’re still owed $130,000, probably more.

In spite of the fact that Nina had just offered to give Hans Namesys in the divorce, Hans was “unhappy” when she left abruptly. Why? “Cuz only the lawyers win in divorces.”

COMMENTS

IF you are among those who are seriously entertaining the idea that Han Reiser killed Nina on September 3, then you will necessarily assume that some of Hans’ account is truthful and some is not.

The DA will exploit several parts of Hans’ testimony today in final argument.

This is a man who, by his own account has been separated from his children by an embezzling wife who has the power to destroy his business, one that owns a half interest in Hans’ “intellectual property worth millions”, but whose divorce posture has already “screwed” his programmers out of more than $130,000 in earnings and threatens to destroy the company Hans built.

Hans claims that Nina actually offered to give up her community property interest in Hans’ company (his life’s work) then abruptly walked out of the discussion. But instead of being elated, Hans is unhappy. Why? Most jurors are probably saying to themselves – because Nina was just jerking Hans chain and he knew it.

A powerful motive to attack one’s spouse in a sudden rage does not necessarily prove murder, but it absolutely does not help the defense.

Take it from an old hand at criminal trials — I would never give the DA as much ammunition against my client as was provided today …without a gun to my head.

THE CROSS EXAMINATION BEGINS

Paul Hora began by taking charge immediately.

Hans Lied to the Jury Earlier

Hora: Let me begin by asking if you’re willing to admit, here and now, that when you testified you willfully concealed the fact that you routinely removed the battery from your cell phone after Nina disappeared?

Reiser: Yes, and I feel badly about that.

Hora: And that was a willfully false or deliberating misleading statement of a material fact, do you agree?

Reiser: Yes.

Comment

The court will later instruct the jury that a witness who testifies falsely about a material fact in one part of his testimony can be distrusted in all his testimony. Note here, that Paul Hora’s question has carefully narrowed the time frame to “after Nina disappeared”. This is what makes the omission particularly material.

What Was Hans hiding?

Reiser began to fence with Hora during questions about why he was evading police in the CRX even though he apparently knew that there was a search warrant.

Reiser: But I didn’t have an awareness that it was my legal responsibility to provide a car upon obtaining the knowledge that there exists, somewhere, such a lawful search warrant, and I don’t think that I have that legal obligation — but I’m sure Mr. DuBois can direct me…. You’re kind of asking me for a legal conclusion, sir, as to whether I should have provided the police with my car. I guess you’re implicitly asking me for a legal conclusion — you didn’t explicitly. I don’t have a great deal of desire to give the government all of my possessions — not my underwear, not my car, definitely not my children.

Hora: And not information about where Nina is?

Reiser: Your question is ridiculous.

What Happened on September 3?

Then Hora took Reiser thorough a whole series of questions about the events on September 3. Reiser agreed that he and Nina discussed the divorce, but denied that voices were raised or that “passions were aroused”.

Hans denied striking Nina, pushing Nina; he denied accidentally or intentionally killing her; he denied that she committed suicide, denied that she tripped and fell, and so on. It was an amazing string of questions – in effect Hora was using the defendant to rule out any mitigation or defense to a killing, bringing the case down to an all or nothing choice.

One interesting question and answer:

Hora: Did you assault her?

Reiser: No.

Hora: Did you touch her?

Reiser: ….Probably not. [My emphasis. Reportedly Hans paused before answering that question.]

And at another point:

Hora: Did Nina hit you?

Reiser: She did not.

Hora: Did she apply any physical force to you at all?

Reiser: She did not.

Hora: Did she touch you?

Reiser: I believe she did not touch me. [Again my emphasis.]

COMMENTS

Once again, some astute jurors may be paying attention to how Reiser chooses to express himself. “I probably didn’t touch her.” [And from his earlier explanation about why Hans didn’t jettison the police procedural books, “I figured if I was innocent, it wouldn’t really matter.”] These could be examples of careless syntax by an innocent genius or instances of unconscious slips by a very bright, but very guilty man under a lot of stress.

Hans as Physically Dangerous

As the day closed out, Reiser admitted that he is much heavier than Nina, that he had been taking judo lessons and practice for 19 years, that he studied for a time under a Russian judo champion, and that he, Reiser, has a black belt.

More

Then the topic turned to the nature and value of Hans’ company. More on that thread tomorrow…

In the meantime, you can be assured that the DA’s inspectors will be checking out a certain San Leandro auto and hardware store.

It may be a bit too early to identify the tipping point in this case, but Hans’ earlier pattern of deception and evasion may have just entered the courtroom. Much more of this pattern and there will be a shift in favor of the DA…

MOMENT OF TRUTH PART TWO – THE FIRST LIE?

The doubled edged nature of Han Reiser’s testimony was blatantly apparent, so much so that at times the defense direct examination by Bill DuBois was hard to distinguish from a cross examination by a prosecutor. To be fair, any competent defense attorney needs to take the sting out of a client’s admissions and concessions by presenting them first and in the best light. But the overall effect illustrates the downsides associated with calling this defendant to the witness stand at all, given the sheer number of damaging behaviors and circumstances that need to be persuasively explained.

THE DEFENSE HIGHLIGHTS

Hans bought the police procedurals after seeing his attorney – but not on his attorney’s recommendation. Hans was worried about police interrogation techniques.

Hans thinks his own DNA may have been deposited onto the Exeter post by reaching out and touching it. Others might have gotten their DNA on it via spittle. And Nina? Hans was allowed to speculate: One time in 06 Nina cut her finger on a cutting board (presumably in the kitchen) and another time she had a nosebleed (presumably not from striking the post).

COMMENT

Hans’ assertions here may or may not be helped or refuted by DNA evidence, but the fact that he has implicitly acknowledged the DNA identification tells me that the defense DNA expert may have little to add to the case, if that expert testifies at all…

The CRX

Hans slept in the CRX for a few days to avoid being arrested after Nina’s disappearance.

Hans admitted that he evaded the police because he didn’t want them to seize his CRX. He contemplated throwing away the police procedural books he kept there. He parked the CRX on Monterey Boulevard to hide it from the police and “ran like the wind” to get away from the car. [Remember this is the defense examination.]

The Battery

Hans admitted that he had not been honest earlier when he concealed the fact that he had a practice of removing the battery from his cellphone when he was not using it.

The Storage Unit

Hans admitted that he had explored using the Manteca storage facility to hide the CRX, but decided against it because there were guards 24/7. Hans explained that he wanted to be able to sleep there.

Hans admitted that he threw the passenger seat from the CRX into a dumpster by Tom’s Hardware and Auto in San Leandro. He first said that the location was on Hegenberger, then – after a juror shook his head – Hans corrected himself. The street was Hesperian. This disposal took place on Sept. 17, 2006. Why did he dispose of it? “That seat was not in good condition. Neither seat was in good condition.”

That ticket

Hans contradicted himself – again on direct examination – about what he was doing in Redwood City on September 12 when he was ticketed. At first it was business then it was to get a sandwich.”

“LAYING TRAPS FOR THE DEFENDANT

Wednesday

The DA spent the time from 3:45 till closing yesterday afternoon going over various email exchanges between Hans and Nina, asking Hans to acknowledge each one in turn. This is a trap. The DA needs to lay the foundation for the admission of a very damaging exchange, one that the judge excluded in February. Here is what I wrote back then:

[][][]

A hugely interesting exchange out of the jury’s hearing. This email from Nina to Hans will not be read to the jury:

“I will not continue mediation if you keep threatening me. When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat. I warn you that if you are going to communicate with me in this manner, I will have to end mediation and report it to the police. …”

[][][]

If the DA ever gets this email into evidence, the tide will have turned. Watch closely…

Today, Hora has changed topic, returning to Hans’ car washing and the circumstances of the disposal of the car seat. He has turned up the heat by pointedly asking about the San Leandro location where Hans says he dumped the seat. ‘So if I send my investigator there to find this place, how would I find it?’ The question was designed to back the witness into a corner, especially if there is no such location.

More this evening…

HOT SEAT

Reiser Was On the Witness Stand All Day Under Cross Examination, and…

In cross examination, Hora got Hans Reiser to assert that he had washed out his old 1991 Plymouth Laser with a hose – inside the vehicle; then he was able to grill Hans about whether there were existing holes in the floorboard for the water to run out.

It went something like this:

Reiser: I don’t remember. At some point I discovered there was a hole. I may have discovered there was fortunately a hole. I just don’t remember. This was a long time ago.

Hora: So you didn’t tear up the carpet on the floorboard to see if there was a hole? You just started squirting water and, lo and behold, discovered there was a hole in the floor?

What was Hora up to?

In order to make the washing of the CRX sound merely wacky, as opposed to sinister, Reiser is willing to assert that it was his normal practice. Hora – knowing this about Reiser — is gambling that the jury will conclude that Hans is simply trapped in an escalating pattern of lies, the falsity of which are ultimately revealed because of their innate absurdity. This is why DuBois has spent so much courtroom time trying to show, in effect, that what we might consider to be absurd is Reiser’s norm.

Hans was then required to go through the motions of throwing a replica car seat into a hypothetical dumpster. Hans was repeatedly pressed for details about the location and the manner of disposal. Why? Because the DA hopes to demonstrate with rebuttal evidence that Hans is lying. He may be able to do so if, for example, the business that Hans has described does not exist or that its managers deny that there was a dumpster where Hans claimed or that no car seat was left … you get the idea.

Hans was questioned about when he unbolted the car seat before disposing of it.

Hora: So you unbolted it in the morning and dove around all day?

Hans: I don’t remember when I unbolted it. I unbolted it before I got there at Tom’s Hardware and Auto. These memories are all very vague. This was a long time ago.

Hora: How many seats in your life have you throw in a Dumpster?

Hans: One.

Hora: This one CRX seat, right?

Hans: Right.

A good cross examination is memorable and ties into an obvious argument. This was a good cross examination.

Hora also elicited an admission from Hans that he was in Manteca before he disposed of the car seat in San Leandro. Many on this jury are getting the picture of someone who is working hard, almost full time, in an effort to elude police and destroy evidence. We can grant that a paranoid, loopy geek genius who has been framed might do the same thing. But my professional experience tells me that whenever the defense case depends on the “I was framed” theory, the prosecution has the upper hand.

In another exchange, Hora bated Hans into describing why he was acting so evasively. It didn’t go well for Hans.

Reiser: The police were my concern.

Hora then asked the police were “”the most compelling concern”” that Hans had on the days is question (September 7 and 8 – recalling that by then he knew that Ellen, Nina’s friend had focused suspicion on him and that he had already consulted with Bill Dubois)

Hans: And Nina and my kids, yes.

Hora: What did you do with respect to your concern for Nina on the 7th and 8th?

Reiser: Nothing.

[][][]

Then in the afternoon session, Paul Hora returned to the email exchanges between Hans and Nina. Recall the pending trap I mentioned in my last post. The exchanges so far dealt with the couple’s child custody disputes and were otherwise unremarkable.

I am expecting that the DA will gradually sneak up to the key exchange when Nina writes:

“When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat. When you give me a hard stare and … that you are very good at combat, your request that I drop domestic-violence charges against you, it very much sounds like another threat.”

DuBois will be alert for this moment and sparks will fly…

MELTDOWN?

In other testimony later yesterday, Hora pressed Hans about the hard drive issue. The result was potentially cataclysmic for the case.

I’m quoting extensively from the live blog of the San Francisco Chronicle’s Henry Lee here as it as was updated after 7 PM last evening.

Reiser has confirmed that his home computer was vital to him, containing among other things all of his emails and the novel Hans was writing.

HORA: You lost your novel?

HANS: Yeah, I think it might be in Russia.

HORA: What else was on the hard drive on this computer that was important to you?

HANS: …. My e-mails. My home directory.

When first questioned, Hans said he removed the hard drives between September 6 and 8. Recall that September 5 is when Ellen, Nina’s friend didn’t pick up the children.

HORA: Why are you saying things and you know they’re not precise?

HANS: Because I’m a fool.

Reiser’s best guess is that he removed the hard drives at night.

HANS: I was being inaccurate as to the precision of my memory. There is a possibility that it was in the night.

Then the bombshell:

Hans now says that he gave the hard drives to DuBois. They were in bankers boxes along with other personal effects.

From this point forward, the defense attorney’s license to practice law hangs in the balance as does a mistrial in the case.

HORA: If you examine the hard drive–

HANS: I really can’t, can I, if I don’t have them?

HORA: When did you give him the hard drives?

HANS: I don’t know.

HORA: Do you have a best estimate?

Reiser claims it was between September 7 and 15th.

HORA: What were they going to see on the hard drive that you didn’t want them to see?

HANS I don’t think that anybody would particularly want the government going through their hard drive.

HORA: Why did you think if you removed this on Sept. 7, Nina’s missing, nobody knows where she is, according to your testimony — you don’t know either — why did you think police would be searching your house and your computer on Sept. 7?

HANS: I was told by my attorney that as the husband, I would be the primary suspect.

HORA: In what?

HANS: The disappearance of my wife.

DuBois rejected reporters questions based on the gag order.

An attorney who comes into possession of physical evidence relevant to a murder case has an obligation to turn it over to the prosecution. An attorney may not destroy or conceal physical evidence. We know that the DA has not seen the hard drives. DuBois’ best defense is that the drives were hidden in the bottom of the bankers box wrapped in dirty underwear.

I hear a ticking bomb….

HOT POTATO

In this morning’s session, Hans Reiser asserted that he personally handed his hard drives to attorney William Dubois and expressed confidence that the drives were still in his attorney’s actual or constructive custody, unaltered. When confronted with a search warrant that specifically addressed computer hard drives, Reiser simply averred that he personally hadn’t been served.

At this moment, late AM, DuBois has not yet addressed the issue in open court, although we can be certain that there are ongoing discussions behind the scenes…

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?

REISER FRIDAY FOOTNOTES

For yesterday’s ongoing cross examination of the defendant, I have nothing to add to Henry Lee’s excellent account – both print and blog (the former ran today in the San Francisco Chronicle) except to add the observation that the problem (from the defense point of view) with the Reiser case has, from the beginning, been Mr. Reiser himself. Links: blog – http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=37&entry_id=25076 and print http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/03/21/BA5HVN9TV.DTL&hw=reiser&sn=004&sc=226 .

This is a recent e-mail exchange re the hard drive issue.

Mr. Gaskill:

The matter of the missing disk drives is something that makes me especially appreciative to have an expert providing legal analysis of the case. I expect the possibility that they have been in the custody of the defense attorney, even though identified as items sought in the search warrant, is unusual. Is it unheard of? In other words, is it a bombshell rather than a mere red flag?

Assuming the disks are found and there is no mistrial, will the prosecution be allowed to reopen its case to introduce new evidence, even though they have rested?

Thanks for all the insight you have provided into this case.

Oakland

My answer was Yes, Yes and Yes.

In all likelihood, if new evidence important to the prosecution case surfaces late because of defense misconduct the court would allow the DA to reopen. However, is the matter has been submitted to the jury, all bets are off – too late is really too late. But in this case, because the DA and court have been alerted to the hard drive issue, i.e., that they may still be recoverable, the DA will not rest the prosecution’s case until the issue is resolved.

MR. DUBOIS AND THE CLIENT FROM HELL

Poor Bill DuBois: We can imagine his early joy when Hans Reiser, a putative millionaire, a marginally famous software guru, arrived in his office, cash in hand, seeking legal assistance because OPD thinks he killed poor Nina, his estranged wife (that manipulative mail-order bride from Russia, still “missing”).

Ah the lure of publicity, of a lurid drama, of fame even, and the not-trivial consideration of hard cash-in-hand (an all too rare resource from those criminal defendants who are not members of a drug cartel).

Flash forward to the mid-week chastisement by an irritated Judge Goodman for DuBois’ earlier demonstration and Bill’s current contention that the court has improperly admonished Mr. Reiser – in public.

Poor Mr. DuBois was then admonished himself for merely “standing up to the judge” for berating Hans.

I suspect that Bill knows better. May I let you in on the secret? A client from hell expects at least the appearance of a spirited defense for his money; this creates the dynamic in which the attorney may feel impelled to perform a certain amount of courtroom fire and brimstone in the interests of “client control”.

But DuBois must feel ill used by now, having given the last full measure of devotion to his client’s perceived interests by – assuming that current reports are to be believed — he actually took possession of those hidden hard drives seventeen months ago. DuBois will have placed his grip on the license to practice law at risk; he is on fragile ground here, and for what? The client is happy? The court is happy? Bill is happy? No, we can be certain that no one is happy… Except possibly Paul Hora.

The best that can be hoped for from the defense perspective: that the belatedly recovered hard drives contain nothing incriminating. This (I believe unlikely scenario) would give credence to the claim that the client from hell was merely paranoid and possibly innocent at that.

Mr. Reiser is on the witness stand TUESDAY, April 1, once again. He won’t be excused (in my opinion) until the hard drive issue has been resolved.

I wish I had better advice for the defense team, here. It reminds me of the classic anecdote told in ethics classes. The attorney is relaxing in her 3rd floor offices, enjoying the breeze from the open window. Her client, having leaped from the 96th story without parachute flies past the attorney’s window, shouting, “What do I do now?”

The attorney shouts back: “Don’t jump!”

Monday, 3-31-08

CAUGHT IN A WEB?

Hans Reiser resumes his testimony tomorrow. Will his growing testimonial inconsistencies become the web that eventually traps him? DA Hora has skillfully exploited Hans’ tendency to babble, his seemingly uncontrollable tendency to wander off topic and his (almost congenital) aversion to direct “yes” or “no’ answers.

Observers in the room have begun to report telltale juror body language – such as turning away from the witness or exchanging knowing glances – when this defendant is at his least credible. At this point we may be picking up the early signs of a divided jury, one split between those jurors who are making excuses for Reiser’s terrible testimony as the idiosyncrasies of an emotionally crippled Geek and those who see this behavior as the evasions of an arrogant killer.

The tie breaker, if it ever emerges in this long, long trial, will not come directly from Reiser’s testimony but from extrinsic proof – in the form of a clear rebuttal to something Hans has said under oath.

One illustration: The guilt-leaning jurors are thinking that Hans really, really didn’t want the CRX car seat to be subjected to CSI-style forensic analysis, and the defense-leaning jurors are still making excuses. Hans has been nailed down on this via cross examination: He tossed the chair into a dumpster, not an oil can, not a wrecking yard, not a refuge pit, and he did so (if he is to be believed) at a specific time and place. Evidence that the disposal could not have happened as he has testified it did will be a powerful blow to the defense, a possible tie breaker. DA Paul Hora’s goal in cross examination is to multiply the number of opportunities for this kind of clear refutation, because he knows that internal inconsistencies in Hans’s testimony may not be enough…

April 01, 2008

THE APRIL FOOL’S DAY SESSION WITH HANS

This is a snapshot of Reiser’s testimony. I’ll have some comments at the end of this interim posting, and more after DuBois’ redirect tomorrow.

SCHEDULE

In a non-jury session on March 26, the defense announced that it will call a DNA expert tomorrow (presumably interrupting Reiser’s further examination if necessary). Other defense witnesses will include Nina’s boyfriend, Anthony Zografos, Ryan Gill, a “missing persons” investigator, and the OPD officer who took young R’s original statement.

THE CALL FROM ELLEN

Hans resumed his interrupted cross examination by confirming that Ellen, Nina’s friend – the one who had picked up the children at school when Nina didn’t show and Hans’ mother was unavailable — had called Hans at 9:21 P.M. on Sept. 5. Reiser says he took the call at Mark’s house, the residence of his Mom’s boyfriend. Recall that this was the phone call monitored by OPD with Ellen’s consent, the call that ended when Hans said ‘I need to talk to my lawyer”.

Q: Did Hans say that? Hans: “I can’t recreate the wording.””

WASHING THE DRIVEWAY

Hans agreed that when he returned to the Exeter house (we assume taking Mom home with him, using her hybrid) he began washing the driveway. In later testimony, Hora showed Hans evidence that on the night of September 3rd the nearly full moon was bright. Hans claimed not remember the moon.

Hans testified that he had washed the Exeter driveway on only two occasions, both because of tree droppings – September 3 was the second. Did he do a better job washing the night of September 3rd? Hans could not recall.

WASHING THE CRX AND THAT AWFUL SMELL

Before examining Hans about what he washed or otherwise disposed of that night, there was this set-up exchange:

HORA: And you’re saying you didn’t commit any crime when she was at Exeter, right?

HANS: That’s correct.

HORA: Had nothing to hide that afternoon, right?

HANS: That’s correct.

Then Hans was asked about washing the interior of the CRX with a hose, requiring the use of a siphon pump to remove the water. That exchange elicited this unexpected gem:

HANS: The thing you haven’t asked me if after the siphon pump, the smell remained, and it was a fiasco.

I can imagine a number of jurors thinking: Smell? You don’t suppose….

There followed a series of questions about the smell – What was it? When did Hans notice it? And so on.

Hans settled on spilled milk, probably on the carpet in front of the passenger seat but permeating the CRX. Hans was unspecific about when he first became concerned about the smell, but presumably he didn’t want his mother to complain.

HORA: Did you try to clean it?

HANS: Yes.

HORA: Did you also hose out the back of the car?

HANS: Uh no, but I did clean the back of the car.

HORA: So you didn’t spray any water in the back of the car?

HANS: No, but I think some water got back in there.

THE MISSING TRIM ASSEMBLY

In related questioning Hans revealed that he had removed a “trim assembly’ from the rear of the CRX because it smelled.

Where did Hans dispose of it?

Hans was unable to say, except that he put it in a trash receptacle somewhere in Oakland or San Leandro.

There was a long exchange about Hans’ long postponed plans to make the CRX more comfortable – apparently that project became more urgent on the evening of September 3, 2006 and in the ensuing days.

THAT FINAL DIVORCE DISCUSSION

In a separate line of questioning, Hora took Reiser through the events on September 3 from the time

Nina arrived until just before her departure. Some highlights:

During the couple’s divorce discussions, the two children were eating by themselves on the lower level of the home. 
Hans reiterated that Nina had offered to give him her interest in his company because Nina and her divorce attorney (Shelly Gordon) had concluded that the asset “was worthless if they tried to take it from me. It's a company that has upon my arrest, became absolutely worthless.”
Hans was unable to say whether Nina told him that night said she was going to file for bankruptcy, but he opined that he, himself, had contemplated filing under Chapter 13 to buy time for debt relief. 
When Nina abruptly decided to leave, Hans denied that he tried to restrain her: “Nothing prevented her from leaving except my talking.”

MORE

In follow up questions, Hans said he only slept one night in the CRX after the seat was removed. He moved a red box of documents from the Exeter house to a rental car at some undetermined point.

Hans pulled several thousand dollars from his bank soon after Nina’s disappearance because he thought it would be “safer” in his fanny pack.

Why did Hans visit Reno in late September?

Hans: When I looked at a map and calculated that it was four hours away.

Hora: Why did you choose Reno as your destination? Were you looking for something that was four hours away?

Hans: Four hours is my driving limit in terms of comfort for my legs?

Hora: Why did you withdraw money from a U.S. Bank in Truckee if it would charge you a fee?

Hans: Because people are following me.

Hans apparently spent several days there. Doing what?

Hans: You can surf the Web at various places.

Evidently, Hans missed a child custody hearing on September 27th because he had not yet returned from this jaunt. As a result he missed confronting included Nina’s mother, Irina Sharanova.

Rather than take a long explanation, Hora, undoubtedly worn down by this frustrating witness, concluded the examination, leaving the redirect to Dubois tomorrow.

[][][]

ANALYSIS

Hans continued to fence with Hora today but there were no major internal inconsistencies in his testimony except the ‘selective’ memory problem, i.e., Hans’ uncanny ability to remember some detail as if he has an eidetic memory, then becoming suddenly unable to recall where he tossed potential evidence. A “memory lapse”, however improbable, is a better tack (for someone attempting to hide things) because we can be sure that the DA’s office is leaving no stone unturned to recover the missing car seat or to demonstrate that it couldn’t have been disposed of when and where Hans testified before. So in this session, so far as I can tell as of the break, Hans has provided the DA with no refutable material details.

Jurors are probably seeing this through two lenses, one that treats every new revelation darkly (a possible bankruptcy discussion as a hot topic that might have set Hans off, a frantic washing of the CRX as an attempt to get rid of the smell left by Nina’s corpse), and one that is still unpersuaded that Hans could have pulled this off (asking in effect, ‘Where’s the beef?” Hans’ loopy behavior proves nothing). This is why it will be crucial for the prosecution to be able to demonstrate in rebuttal that Hans has not been truthful with the jury. If that takes place, then a number of other things will fall into place and votes will begin to shift toward guilty-as-charged.

Can the prosecution get all twelve? That depends of far too many unknowns. Was any juror or set of jurors actually persuaded by Hans’ denials in the stand? How much damage to the DA’s case will the defense DNA expert be able to do? In my opinion, the dynamic of this case now puts a great deal of pressure on the prosecution to come up with effective rebuttal evidence. So far, Hans has not won his case by testifying but he hasn’t given it up to the prosecution either.

THE HARD DRIVES SURFACE

& More

Paul Hora briefly continued his cross examination of Hans Reiser this morning by having the defendant authenticate a wiretapped conversation in which Hans talked to his mother on the afternoon of September 20th the contents of which made it clear that Hans was going to stay the night in the Exeter house. Hans then rented a Ford Escort and probably slept in that car the next two nights.

Then the witness was turned over to his attorney and Bill DuBois took up the rest of the morning in redirect examination, eliciting from Hans early on that his client “sneak slept’ in his mothers house because he was forbidden to have custody of the kids.

The Dramatic Moment of the Day took place when DuBois produced a manila envelope, removed two hard drives, and – after the usual difficulties with this client – had Hans authenticate them.

Reiser then attempted to justify his purchase of the two police procedurals he obtained at Barnes and Noble, pointing out that one of the books described improper police interrogation procedures.

A great deal of time was spent rehashing divorce details. I’ll spare you these because it is clear that that, Hans’ protestations aside, this was an acrimonious split-up. Dubois attempted to have Hans defuse the economic aspect of the divorce as a temper-flashpoint in this exchange:

Reiser agreed that Nina and her lawyer maintained that Nina had a community property interest in Namesys, Han’s company.

Dubois: Was there some major bone of contention that upset you to the point of anger?

Hans: Uh, the legal-custody issue was the thing that had me upset.

At another point:

DuBois: “[W]as there anything that came between you and Nina at this time, while she was at your house, that made you angry at her?

Hans: No. But later Hans admitted he was “pissy” about “the embezzlement”. [Note – the jury so far has not been given any evidence that Nina embezzled from Namesys, but the perception is relevant to Hans’ state of mind, possibly to Nina’s as well.]

Then – possibly in anticipation of the impact of angry divorce-related emails contained in the hard drives, and some that have already been identified – DuBois led Hans into this set of assertions:

Hans: It’s generally known in the computer industry that you should never communicate on any emotional topic by e-mail. … Communication by e-mail was all that was allowed by [the divorce] court order. I would think it’s actually extremely unwise for courts to encourage persons going through a divorce to communicate through e-mail instead of by the phone.

DuBois: Based upon your personal experience?

Hans: Yes.

[I am reminded that the court has so far excluded an email by Nina to Hans referring to his implied physical threats – referring to his martial arts prowess – where Nina threatened to go to the police. There is still a major risk to the defense here- depending on the hard drives’ contents.]

Even though Hans’ business was in extreme financial distress because of Nina and the divorce, he maintained this morning that he and Nina were getting along quite well on September 3, 2006.

Reiser referred to two neighbors, one Mr. Stabb who saw him washing the driveway, doesn’t like Hans and another, Charles, with whom Hans is on good terms.

Normally attorneys are not allowed to lead their own witnesses on direct or redirect examination – except when the witness is ‘hostile’ (a legal term of art, meaning in an adversarial position, not necessarily angry). But DuBois found it necessary to lead Hans several times, with out objection. This is a sample:

Defense: And were you aware of the fact that Nina played an important role in the lives of the children?

Hans: yes.

Defense: Were you aware of the fact that the kids loved their mother?

Hans: Yes.

Defense: You were devoted to your children, isn’t that correct? [Leading]

Hans: Yes.

Defense: Under no circumstances would you have done anything whatsoever to deprive those children of their mother? [Leading again]

Hans: No

Defense: So when you say that you became upset during the conversation with Nina…

Hans: I didn’t say that I became upset. … [I]t was a very calm conversation but it had serious undercurrents to the whole conversation.

What undercurrents? Hans being “stuck with the bankruptcy” being forced to “take the debts.” [Taken in combination with Hans’ anger at Nina’s ‘embezzlement’ some jurors might imagine a very angry husband indeed.]

Then another leading question:

DuBois: And so she said she had to leave and did she leave?

Hans: Yeah, she did.

This exchange is painfully like a defense lawyer asking the client on trial, “You really are innocent of these charges, aren’t you?” and the defendant answering, “Sure. Sure I am,” as if the defense lawyer were afraid of getting the wrong answer.

Frankly, getting the wrong answer is an obvious defense risk with this client. The most damaging things that Hans has said in front of this jury were in the form of off-the-page volunteered statements.

Just before the lunch break DuBois returned to the call form Ellen on September 5. Hans told the jury that, instead of telling Ellen he needed to talk to a lawyer right after she pointed out that he was the last person to see Nina, “Actually, I said she should ask questions, she could talk to my lawyer, something like that.” Hans felt that “things didn’t add up” because no one told him that Nina was missing before the 5th.

One comment on the morning session

It is simply inconceivable that this case can proceed with Hans safely off the witness stand until the contents of the hard drives have been examined and evaluated by the prosecution. I’ll save the rest of my observations for later

AFTER THE HARD DRIVES SURFACED

Hans Talked His Lawyer to Exhaustion

Let me paraphrase the highlights of a very long afternoon for Mr. DuBois who felt the necessity of going over everything that has so far been mentioned, giving his – sometimes clueless – client a chance one more time to explain himself.

Reiser returned to his children’s school on the afternoon of Nina’s disappearance, he now says, because he was procrastinating his cleaning job. He may have seemed nervous because he wasn’t supposed to be the person to pick his children up.

There was a tedious series of questions and answers about Hans’ behaviors with school official and Ellen that afternoon and DuBois was having difficulty getting the expected answers from his client and several jurors were reportedly showing signs of boredom.

Hans was more concise when he explained how his divorce attorney had advised him that the husband is always the number one suspect in a wife disappearance and that he, Reiser, should immediately get a criminal defense lawyer like DuBois. We the learned that Reiser took his children to the beach on September 6th , that he dropped them at school on the 7th and that his mother was to pick them up from school while Hans was busy with the CRX – he says it conked out in San Leandro.

To the apparent amusement of some jurors, the defense team projected a number of candid family pictures asking him to identify is children, Nina, and mother.

Han says that a white powder that was found on the Exeter house’s back porch was corn starch, a foot powder. He claimed that a DA analysis confirmed that. [The jury has seen no evidence of any powder analysis.]

Hans wept when he recounted how his children were taken by child protective services on September 8. He now says that the incident heightened his “paranoia” and prompted him to get rid of the car seat. In Hans’ words, “I just had enough. I just threw it”.

[This may turn out to be a key moment in the case. Do several members of the jury, having the opportunity to see Hans and measure his demeanor, believe of disbelieve this explanation? It was the disposal of something that – to any reasonable person – could be seen as potential evidence, especially for someone who was on notice that he was the focus of a police investigation.]

But Hans’ removal of the stinking trim piece from the CRX was explained differently. “Well, not only did I not have my kids, but I didn’t have a home, and this way I could make something that would make the car a bit of a home.”

Just before the break – precipitated by DuBois’ request for a session recess – Hans was on the brink of potential trouble. He had just told the jury that he had removed a sleeping bag from the Exeter house after Nina’s disappearance (he says September 8 or 9).

Was it the same bag that police recovered in the CRX?

Hans: I don’t know.

Comments

I’m getting the impression from that some members of the jury are under-whelmed by Reiser’s testimony. Or worse.

A pattern of evasion, obstruction and removal of potentially incriminating evidence is not typically overcome by additional seeming evasion and dissimulation during testimony. Better, in such a situation not to have taken the stand at all. The remaining hope for the defense (with respect to Hans’ testimony) is that at least a critical mass of jurors are somehow persuaded that Hans was at least sincere when he denied killing or harming Nina. That is a matter of chemistry, impossible to predict.

Clearly there were moments today where it appeared that Hans had slipped off “script”, in the sense that whatever testimony he had led his lawyer to expect suddenly mutated into something else. In this situation, it is very difficult for the defense lawyer to hide his frustration from the jury. And it is very difficult for a jury to take the witness seriously. The essential problems with the prosecution’s case remain – it is, after all a circumstantial evidence murder case without an autopsy – but on balance the defendant has helped the prosecution as much as he has helped the defense.

This is an opportunity for the prosecution. If the DA rests without producing effective rebuttal evidence, that opportunity will be lost.

Hans resumes the stand tomorrow, April 3rd.”

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