Hora and that Venomous Platypus

NOTE – PAUL HORA WRAPS UP THE REBUTTAL ARGUMENT TUESDAY AND THE JURY IS INSTRUCTED BY JUDGE GOODMAN. THAT WILL BE A WRAP UNTIL DECISION OR INDECISION TIME…

Hora and that Venomous Platypus

Bill DuBois’ Avuncular Swan song

The defense argument ended shortly after the jury returned from lunch with an institutional appeal for reasonable doubt as a way of keeping the government honest.

Bill Dubois returned to the testimony of little R… as unduly influenced by his Russian interviewers and even made a reference to the administration’s use of Colin Powell’s credibility to sell the weapons of mass destruction case to the UN. [It is unclear whether he really meant to equate little R… with the former Secretary of State!]

DuBois finished on a patriotic note: “You tell the government it’s wrong when it’s wrong, so that the people who have given their lives to preserve this nation have not done so in vain.”

This was a “feel-good” ending to an argument that spent a great deal of its force earlier when DuBois had to work hard to regain his lost credibility with the jury.

This was time that would better have been spent trying to drive a hole named Sean Sturgeon through the surrounding cloud of suspicion.

Paul Hora’s Fierce Rebuttal

Paul Hora began by telling the jury that the male platypus has a poisonous spur, capable of hurting people with its venom. [Reportedly the jury was amused. It’s hard to escape the impression that, while jurors dislike the defendant and have sympathy for defense counsel, they tend to like and trust Paul Hora.]

Then Hora turned to the defense portrayal of Hans as somehow disabled. He said that Asperger’s disorder is no excuse for murder, then went over Hans Reiser’s life achievements: As a world class computer scientist, as having held positions with Microsoft, Sun Microsystems and IBM; as a man who developed an important computer file system for LINUX, the open source operating system, as the founder of NameSys, as securing multi-million-dollar contracts for his company; as earning a black-belt in judo, marrying Nina, a Russian physician, and starting a family with her in the US..

“He’s quite an accomplished guy, if you think about it. And now that he’s on trial for murder, he’s got a mental disorder. That’s what the defense is saying.”

Hora essentially demolished the claim that Nina had stolen from Hans by quoting Greg Silva, the divorce attorney. Hans thought Nina stole from the company. But “It’s all just talk. Stick to the evidence. There’s no evidence of it? It didn’t happen.”

Then Hora essentially castigated DuBois for presenting three inconsistent defenses, first that “Nina is alive and hiding in Russia” then “Nina is the victim of foul play” and finally, Plan C – “Maybe Hans did kill Nina but it’s manslaughter, not murder.”

Hora approached the Sturgeon issue obliquely. He asked the defense why, among other things, Dubois didn’t call Sean Sturgeon as a witness:

“Why didn’t you? If you thought anything was missing that could help your side, why didn’t you call that witness? You have the power to subpoena just as I did. You can bet your boots that if the defense had anyone else who had information, they would have called those witnesses or presented evidence. You can bet your boots.”

DuBois objected: “We don’t have the burden of proof.”

Hora then ridiculed the possible defense theories. There was no evidence that Nina had planned to meet Sturgeon or some unknown CraigsList suitor. There was no evidence that “the ghost of Fernwood Drive killed Nina”.

Hora asserted that both boyfriends – Sturgeon included – had been cleared. This was a point at which the defense might be expected to stand up and object if Hora’s assertion was not supported by the evidence. But DuBois did not object.

When we examine the flow of argument here, it is hard not to remember DuBois’ earlier concession. And it is easy to see how its tends to undercut his assertions of possible third party culpability and how it takes the sting out of any objection he might now make. This is yet one more object lesson about why the defense really can’t have it both ways…

Per Hora, this was the transcribed cell message from Nina’s new boyfriend: “Sean and I have been searching and working together, trying to figure out what we can do to get a hold of you somewhere. And Ellen and I, Ellen and Sean — and everybody — you get the idea. I love you and I really want to see you again. And the kids want to see you again. Everybody wants to see you again.”

Hora finished the day by contrasting the evident hate that Hans had for Nina with the love that everyone else showed for her.

Hora was not finished with his entire argument at this juncture, reserving additional argument for tomorrow. The case will go to the jury tomorrow after instructions from the court. Whatever Hora has to add, I am persuaded that he already has a majority of the jurors with him…

“Final” Comment

Because this case is a bit of a mess, not to mention a puzzle, because we don’t have a dead body, and because there really is somebody named Sean Sturgeon about whom the jury has been told only a little, I can’t discount the possibility of a hung jury.

But as the trial dynamic has now developed, I would a bit surprised if it turns out that there are more than a couple of defense holdouts on the jury. Given the defense concessions, one or two holdouts probably won’t stick to their guns long enough to drive this case to a hung jury and eventual retrial.

If there is an acquittal, I confess that – while at the beginning of the case that was a real possibility, if it happens now – I will be flummoxed.

And a voluntary manslaughter conviction at this point would be a gift to the defense, although stranger things have happened in Oakland courtrooms over the years.

While there is not enough evidence (at least in my opinion) to make a first degree finding very likely, I can’t rule that out either because of this jury’s possible reaction to the calculated nature of the cover-up.

Assuming a conviction for anything, there are substantial punishment differences at stake. The punishments for murder and voluntary manslaughter (without special victim, weapons or prior offense punishment enhancements) range from 3 years to more than 25 years. Not all of this is up to the judge, however.

Penal Code Section 190 provides:

Murder one - 25 to life in prison
Murder two - 15 to life in prison

Penal Code Section 193 provides:

Voluntary Manslaughter - A prison term for specific years - 3, 6 or 11 years. Here 3 years is the mitigated term and 11 is the aggravated one.  Absent a showing in mitigation or one in aggravation, the court is to select the middle term.

Both murder terms are indeterminate in that serving the minimum sentence doesn’t guarantee release on parole. There are inmates still serving terms for second degree murder whose actual prison time approaches that for first degree. In the event of a first of second degree murder conviction, the sentencing (following a pre-sentence report about a month later) is essentially out of Judge Goodman’s hands. Probation is not an option, and the prison terms are, as we say, those “prescribed by law”.

A manslaughter verdict, however, would call on the judge to make a sentencing choice between three terms – 3,6,11. Under these circumstances, it is very unlikely that the mitigated term of 3 years could be justified, so the realistic choice would be between 6 and 11 years.

A FOOTNOTE:

If there is a conviction in this case, I would blame Hans Reiser, not Bill DuBois. I am reminded of a mentor, long, long ago, who described the defense function (in most cases) as alchemy; we are charged to turn fecal matter into gold.

From this distance it appears to me that all of the defense problems – including the initial selection of the “Bad Nina” defense – were less “self-inflicted” than “Hans dictated”.

As I’ve told new trial attorneys-in-training over the years, there is no circumstantial evidence case so weak that a testifying client can’t snatch defeat from the jaws of victory in a few improvident minutes, hours or days on the witness stand.

To my web audience overseas, I would add that my faith in the American jury system is undiminished. It remains a marvel to me just how often twelve jurors are able to sort through the conflicting claims in a case, see though the “fog of litigation”, and arrive at the best approximation if justice that can be hoped for in a free society.

We could do so much worse…

JBG

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