The danger in staking out your ground in opening statement is that the ground can shift during trial and you may lose credibility. This is what has happened with the Hans Reiser defense. Bill DuBois has been forced by the weight of the evidence – and an appropriate regard for the jury’s own take on the case – to back off the “mean Nina fled” theory. DuBois did it adroitly, during an early discussion about Nina –

“You’ve been informed she is the victim of foul play and I cannot dispute that. I cannot dispute that she was the victim of foul play. But the evidence hasn’t told us even where she is. The evidence hasn’t excluded her being in Europe.”

This signals two things: (1) that the defense has bowed to reality at the possible expense of a credibility loss (but given the flow of the trial, there was really no other course open to a competent advocate), and (2) the defense will dump on Sean Sturgeon.

If there is an acquittal, it will be because the prosecution didn’t do enough to preemptively block the introduction of third part suspects, like Mr. Sturgeon. But for the moment, I suspect that the defense will be happy with a hung jury…

Bill BuBois continues his argument this morning. If he finishes today, Paul Hora will give a brief rebuttal argument and the court will schedule jury instructions (normally about two hours are needed for that). Then the case will be in the jury’s hands. Note that this will become a five day a week trial as soon as the jury retires to deliberate.


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