People vs. Reiser — Endnote

The Appeal

Subject to the vagaries of the legal process, Reiser’s sentencing date is July 9. I would expect that to change.

Barring a post conviction plea bargain (we’ve all heard speculation along the lines, “What if Hans trades the body location for leniency?”- this a very, very unlikely scenario in my opinion), there will be a post conviction appeal.

Here are the rules: The defendant needs only to file a single piece of paper with the court, a “Notice of Appeal” and the rest is automatic. DuBois will not handle the appeal. If Hans does not retain an appellate attorney, one will be assigned him from a panel. The appeal will be decided by the California Court of Appeal; this is an intermediate appellate review panel, not the California Supreme Court. [The California Supreme Court can and often does refuse to review a Court of Appeal decision.]

But nothing will happen until the entire record of the case is certified and transmitted to the C of A. At that point everything that has “officially” happened in the case, both in public and in Judge Goodman’s chambers will be part of the public record. Typically, those revelations are so far downstream and the public’s attention of so fickle, that the case drops into a black hole until the appeal is actually argued and decided. That could easily be as late as 2010. If you thought that parts of this very long trial were boring, try wading through the transcripts on appeal!

Here’s the deal: If a fact or event is not reflected in the official record it just didn’t happen as far as the appeal is concerned. This means, for example, that if the so far mysterious figure of Sean Sturgeon is to become a viable appeal issue, the official record may need to be augmented. The usual vehicle for this is a defense motion for a new trial, because new information can be appended in the form of declarations, affidavits or testimony.

So far I have heard only rumors about this Sean Sturgeon fellow. He was initially considered a possible suspect in the case. When interviewed by the police, he claimed credit for several, otherwise unidentified homicides, emphatically not that of Nina Reiser. He claimed, as an alibi, that during the critical hours on September 3, 2006, he was helping the homeless. No trace of his DNA was recovered from the Exeter house nor from the CRX, nor from Nina’s van. It is unclear whether and when police ever tried to check out his alibi before ruling him out as a suspect. Reportedly, he still cares for Nina and is furious at Hans for killing her. It is unclear why is so certain that Hans did it. From all reports, it seems that Sturgeon was available as a witness to both sides. I suspect that he wasn’t called as a witness because he was radioactive, holding potentially damaging testimony to each side of the case.

Why did Judge Goodman apparently rule out references to Sean’s “confessions”? The law is fairly clear on this. A voluntary confession to a crime is inadmissible against the person confessing without independent evidence of the crime itself. And as to a third party, the statement is inadmissible as hearsay. The actual evidentiary value of Sean’s alleged statements is close to zero, but the potential tendency to mislead a jury is huge. Without knowing more, it is difficult to fault Judge Goodman’s ruling.

Having acknowledged all of that, I must add my own take: Knowing the dire trouble this defendant was in, given the weight of the circumstantial evidence surrounding him, I would have been strongly tempted to call Sturgeon to the stand as a hostile defense witness anyway. Sometimes you just have to roll the dice. At a minimum, the jury would have gotten to see Sean in person, and would have heard him deny killing Nina, offer an alibi, and then respond to the “killer question”, if allowed, to wit: “Sir, when you were interviewed by the police as a possible suspect in this case, did you or did you not admit to other murders?”. Better yet, Sean would be forced “take the Fifth Amendment” in front of the jury.

So we’ll be watching the defense pre-sentencing motions in this case with great interest.


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