The Out-Lawyer's Blog

REISER TRIAL – the week of December 10
Has the defense made a crucial mistake?

This week’s testimony (Monday & Tuesday) made it evident that the prosecution is working very hard to nail down two things: (1) That Nina Reiser evidenced no plans to leave the area or her children and (2) That Hans had a strong motive to get Nina out of his life.  In a sense, the evidence this week was a bit cumulative but that is the point: DA Hora needs to change the psychological dynamic of the case from “I wonder if Hans did it?” to “I wonder how Hans did it?”  This kind of character evidence - Nina as the loving Mom and Hans as the controlling, angry husband increasingly oppressed by Nina - has a powerful cumulative psychological effect.   Turning the jury in this way is crucial to the DA’s case because the gaping hole still remains, not so much the absence of a corpse, but the – so far – absence of a good theory about how Hans might have gotten ride of it.

With this backdrop, here is a brief review of the salient evidence so far this week:

At a Montessori School party, Hans shocked two fellow parents when he said “that his family and Nina were a financial burden to him and that he felt he would be fine financially if he did not have to take care of them…He was complaining about Nina.” The witness opined that “it was a strange thing to say. It really stood out to me. I thought it was inappropriate.” Then that parent’s husband, who also heard Hans vent, added, “His tone was kind of vehement. It was not the kind of thing you'd expect to hear at an occasion like this, a casual social occasion.” No kidding.  And note the thematic link to the police officer’s testimony who advised Nina to get a gun to protect herself from Hans.  The jury will neither forget nor discount this stuff. But they will discount the defense suggestion that all is explained by his client’s social ineptitude, the so called, “social retard” defense.

A month before her disappearance, Nina met with a bankruptcy attorney.  She was deep in debt.  One asset was her community property interest in Hans’ company, but her overall position was so bleak that she couldn’t possibly get a “fresh start” without filing.  She told the attorney that she was to start a new job at the end of September.  They discussed whether Hans would do a joint filing with her.  She vanished before the follow-up appointment.

Two things are important here. 

• Nina had an interest in Hans’ company and had apparently broached the topic of a joint bankruptcy filing and that he presumably refused.  The jury may conclude that, having built his software company, Hans would deeply resent his to-be-ex-wife interfering with that business in any way, let alone dragging it into bankruptcy court. 

• Nina has positive expectations for the post-bankruptcy era, starting later in September.  This jury will see the pattern here of a life interrupted by some untoward event, something that happened on September 3.  Other than Hans himself, there are no available witnesses to a marital fight over the bankruptcy issue, but to the extent that the jury is getting a picture of Hans as tightly wound, angry and controlling, one can imagine this dispute drawing blood.

This is probably a good time to share my suspicion that the defense has very likely made a huge mistake.  No one can fault Bill DuBois for announcing that his client will take the stand, even though that sets up an expectation that will damage the case if Hans changes his mind. 

But the defense seems committed to the increasingly unmarketable notion – a product in part of Hans’ insistence, I’m sure - that Nina and the shadowy KGB Russians are running some kind of disappearance scheme here.  Even if that were actually true (& I doubt that it is), the DA is doing a good job in discrediting the whole theory.  And where does that leave Hans? It leaves the defense effectively unable to pose one or more alternative theories that are much more plausible.

For example, it is at least possible that Nina was stalked by kidnappers who thought – erroneously – that she was the wife of a wealthy businessman and that - as the mother of his children - she had some ransom value.  Once they learn the truth, the disappointed kidnappers kill Nina and dispose of her body.  As farfetched as this theory may seem, it needs to be juxtaposed against the jury’s nagging doubts about Hans: Was it even possible for him to have killed Nina and so thoroughly covered his tracts that, after a full year, the corpse has never been found?

And there are other possible theories – and all of them have the virtue that they don’t hang on the slender thread of Hans’ KGB conspiracy nonsense.  The only reason that DuBois may have allowed himself to get trapped in a single theory is the insistence of his client.  This brings me back to where my analysis started at the beginning of the case. 

The biggest problem with this defense case may turn out to be the defendant himself.

Stay tuned…