THE END IS NEAR

MONDAY

April 21, 2008

THE END IS NEAR

ONE MORE CONCESSION

Last week, Bill Dubois made an important concession. As I said then —

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.”

The concession that “I cannot dispute that she was the victim of foul play” allows DuBois to make the maximum use of the shadowy character, Sean Sturgeon in generating reasonable doubt.

In this morning’s argument, Dubois returned briefly to the Sturgeon-as-suspect theme:

He is the one person who relates to everybody in this case who has not been called as a witness. [He had an] “equal motive or greater motive to do harm to Nina than Hans Reiser”.

Dubois continued with the “Hans is different” theme, really an invitation to judge him differently than someone else similarly situated.

Examples of this line:

· Hans is “real genuine nerd.”

· “If he had violently abused Nina in any way, shape or form, you would have heard about it,” Du Bois said. “There is no evidence that he did.”

· “For some people, taking the car seat out to get a better sleep or remodeling the back of the car to put a futon in it is odd. But for Hans, it’s consistent with his personality. He doesn’t care what anybody thinks. Anybody who knows him knows that. The circumstances of this case are just consistent with his personality.’

· “If it’s consistent with two reasonable interpretations, then you must adopt that inference which points to innocence, however odd he may be, and reject that that points to guilt. He’s an eccentric.”

But today, the defense made an even more important concession. It is now clear that the voluntary manslaughter instruction, for which the defense had no objection was, in fact, the result of a defense informal or formal request. This morning DuBois attempted to mitigate the offense, in the scenario where the jury concludes that Hans did cause Nina’s death.

The defense now has told the jury, that if Hans killed Nina, it would have been provoked. Hypothetically, “Nina says – ‘I can’t take it anymore. I’m leaving and taking the kids to Russia.’” Then Hans, who loves his children, loses control.

Dubois: [Addressing this scenario]”He didn’t act with malice. Your verdict must be voluntary manslaughter. [If you find] That if Hans had something to do with this, it’s inconceivable to me, that the person who was described to me by one of his friends, couldn’t have planned anything like this. It would have taken 30 years.”

Of course I agree. The Hans did it scenario involves an impulsive, unplanned act of violence, followed by a hasty cover-up. Someone of Hans’ intelligence would have hatched a better plan. But it doesn’t follow that someone of Hans’ intelligence couldn’t have snapped under marital duress. Better men that Hans have done so to their everlasting regret.

I’ve identified this form of argument as a concession because, in my experience, it is impossible as a practical matter to mitigate the offense while trying to maintain that someone else did it. The jury will likely conclude from this part of Dubois’ argument that the defense – at a very minimum – has decided that it is reasonable for a juror to conclude that Hans did it. This will cut the ground out from under any holdout jurors who cling to the notion that someone else did it, just as Dubois’ earlier concession about Nina’s abduction has weakened the case that she is still alive. That’s just how jurors tend to think.

I’ve been there. Unless a miracle happens – i.e., Nina walks though the courtroom door, an acquittal is now virtually out of the question.

I’ll cover the remaining arguments in a subsequent post.

JBG

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