PEOPLE of the State of California
The Argument Primer Part One
Here is my pre-argument Overview, with more to come.
To convict Hans Reiser, the jury must accomplish four things:
Agree that Nina is dead.
Reject the exculpatory parts of Hans’ testimony — while accepting the incriminating elements.
Reject the suggestions that someone other than Hans is a reasonably plausible suspect in Nina’s demise.
Agree that all the pointers to Hans as the culprit are sufficient to conclude to a reasonable certainty that he did in fact kill Nina on or about September 3rd, 2006. [In this connection the jury can consider Hans’ own testimony as a pointer towards guilt if it chooses to do so, based on an assessment that he has lied to them in some material respect.]
To acquit Hans Reiser, the jury must accomplish four things.
Agree that Hans is telling the truth when he denies killing Nina, while excusing his deceptions and misstatements in other respects.
Agree that Nina is alive – or – that she was the victim of foul play at the hands of someone other than Hans Reiser.
Agree that all the pointers towards Hans Reiser’s guilt in the evidence are reasonably susceptible to an innocent explanation.
Agree on “legal innocence”, i.e., that whatever the ultimate truth of the matter, that the evidence taken as a whole does not amount to “an abiding conviction of the truth of the charge” because an essential “reasonable doubt” remains.
If I were forced to bet on the outcome, I would probably (bear in mind I’m writing this on Saturday, April 5, before either side has rested, and before the arguments have even been made) … put my money on a hung jury.
Here are two of the possible variables that will determine the outcome:
A “ringer” juror or two:
This happens in a few trials a year in any large jurisdiction. A ringer is a juror who – having promised to be impartial – really is strongly predisposed one way or the other for reasons not disclosed in voir dire.
Think here of someone who has undisclosed “issues” with the police or harbors a very strong negative opinion of a “woman like Nina”. This would be a juror who will never convict for murder on circumstantial evidence without a dead body. Such a ringer will have a rock solid argument (even if insincere) to resist other jurors (because it is beyond logic), as in – “Sorry, I watched the defendant closely and I just believe Hans was telling the truth when he said he could never kill Nina.” This is essentially the kind of juror to whom the entire defense case has been pitched.
On the other side, we might imagine a pro-conviction ringer who has “issues” with abusive and insensitive husbands such that the moment that Hans testified all dark suspicions about him were confirmed. Without ringers, the jury will be able to conscientiously deliberate and each member of the panel remains susceptible to persuasion.
Are there “ringers” in the Reiser jury? It’s a crapshoot.
Startling evidence that seems to tie everything together:
Example one. The defense “dark horse” candidate is Sean Sturgeon, about whom the jury has heard bits and pieces, only, mostly hearsay or rumor. Note that the prosecution has established that the suspected crime scene was checked for Sturgeon’s DNA and the finding was negative. Did Sturgeon have an alibi?
Example two. Remember the compelling testimony of that former OPD officer who warned Nina? Former O.P.D. officer, Ben Denson, who saw the couple frequently during child exchanges at the police station, testified – “He never put his hands on her but, you know, I could tell by the way he was looking at her, there was menace in his eyes…It was very hostile….I told her, ‘You need to get yourself a gun.’’ Now recall this hugely interesting exchange that took place out of the jury’s hearing. The prosecution has an email from Nina to Hans that (so far) will not be read to the jury, to wit: “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. …” As I said earlier, jurors who hear this – if they ever do – will tend to think – Too bad Nina didn’t call the police. So the DA still has an opportunity to get this threat – or something similar – before the jury because Reiser’s hard drives are now being examined by a forensic expert.
Footnote to the last point:
A correspondent has asked me the following:
Can you explain why the judge isn’t allowing the prosecution to introduce Nina’s “stop threatening me” email? I would think something like that should be introduced for obvious reasons. How can it not be allowed? Thanks.
A very good question.
Basically, the judge excluded it because it is hearsay in that the statement by Nina is really being offered to prove, not that Nina may have been frightened of Hans at some point, but to prove that which she asserts in her email about Hans. In other words, the DA wants the email to show that Hans was threatening Nina, with menace and the prospect of using force. But Nina is not available to testify. Now if the DA were to find one of Hans’ emails to the same effect, it could and should be admitted in evidence, because Hans can be questioned about it. One possible exception to the hearsay rule is a so called “dying declaration”. But that exception doesn’t get Nina’s email to Hans admitted because she obviously wasn’t dying when she sent it.
A final note: The defense has carefully avoided allowing Hans to advance the “conspiratorial Russian b….” defense. This will give the defense some latitude to move to more promising ground – as in suggesting a mystery killer – in spite of Bill DuBois’ more restrictive opening statement.
As soon a both sides have rested, I’ll pose an overview, and I will identify the strongest potential arguments for each side.