The Out-Lawyer's Blog

Dr. Fraga’s testimony occupied the entire day. 

Cross examination by DA Paul Hora began at 3PM, first establishing that Dr. Fraga almost always testifies for the defense (a standard attempt to show a defense bias that is usually disregarded by jurors). 

I’ll return to the DA’s cross examination below.   

At the risk of drastic oversimplification, Fraga confirmed what most jurors knew intuitively, to wit: Child witnesses can be influenced by the tone, contents and context of their questioners.

SAMPLES:

Dubois: If a 7-year-old had conversations with therapists, social workers and caregivers about a traumatic event that occurred six or seven months earlier…could he start making up facts consistent with the conversation that really aren't consistent with his observations at the time of the traumatic event?

Fraga: That is not at all improbable.

Dubois (after positing a pattern of suggestion over time): Could the kid start envisioning scenes that are consistent with his father killing his mother? Could a child eventually have nightmares?

Fraga: Yes, I imagine

Then DuBois was allowed to address R’s drawings in the hypothetical context a pattern of suggestion.

Fraga: This idea of a bag and one of the parents being placed in a bag, then I could attribute this drawing to a crude rendering of that theme

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A great deal of time was then consumed with a discussion of the differences between Asperger’s syndrome and a narcissistic personality.  That whole discussion was problematic and I suspect that this jury knows it.  We have the family shrink who knew little Hans but failed to make a definitive diagnosis, and now we have the hired gun shrink who has never examined Hans, yet is willing to discuss why the family shrink was wrong.

I also strongly suspect that the jury is on the common sense page, here – that all those ordinary, non-clinically significant variations in the human personality, qualities like “social”, “asocial”, “socially awkward”, “cold”, “hot tempered” and so on, are well within the competence of ordinary people to detect and discuss without clouding the issue with clinical jargon or DSM-IV clinical labels that really describe much more extreme cases.

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Hora’s cross examination was not extensive, but he made some points:

SAMPLES:

Hora: You have absolutely no idea what the kid was drawing?"

Fraga: What I have is the context you gave me, that it’s a 7-year-old and this is a drawing that a 7-year-old produced… My job is to generate a series of clinical hypotheses as a clinician as to what may be presented and then explore them. That’s called an assessment. A good assessment involves entertaining several hypotheses at one time in looking for collaborative or corroborative data and in material that either supports or negates a certain hypothesis, to get us closer to an idea of what’s going on.

Hora: But you went with 'confused'

Fraga: That was my assessment.

Hora: Do you know whether the boy was telling the truth when he drew that?

Fraga: I have no idea of what the truth may be.

COMMENTS:

Recall that Hora called the Reiser boy with a disclaimer that the boy’s testimony was problematic, so the prosecution has lost no credibility here. 

On cross examination, Dubois made “R…”’s testimony worse when he walked into a zinger.  He asked a question that prompted “R…” to say that his account of Dad carrying that Mom sized object down the stairs (illustrated in the subject drawings) was not a dream: “I was awake.” As I predicted, DuBois would have to spend the rest of the trial trying to figure out how to undo that damage.  

Dr. Fraga was the defense’s repair instrument. 

By that measure, DuBois has weakened the credibility of both the good and the bad parts of the boy’s testimony, leaving his client with a further compromised, almost alibi and a little boy’s chilling image. Whether "Dad on the stairs” is depicted as a dream, a fantasy, or a confused memory, that image will align itself deep in the mind of a typical juror with another chilling moment in the trial. Recall when a former OPD officer -- who had seen the anger in Hans eyes --warned Nina to get a gun. 

The Reiser case inhabits that borderland where some jurors see only the strong suspicion of guilt and others see the virtual certainty of guilt.  All this comes down to a simple psychological fact: Reasonable doubt is not the same in every case.  The psychological dynamic of a case, the personality of the defendant, the haunting images of a child or the warning of a concerned cop can expand or contract what reasonable doubt means to any given juror.

Hora finished his cross today, but Bill DuBois was unable to conduct redirect examination by the time the court recessed. Whether the jury will see Dr. Fraga on Monday, or a DNA expert or Hans is anybody’s guess…

Judge Goodman acknowledged the loss of Judge Al Delucchi who passed from this world Tuesday at the young age of 76.  Those of us who spent most of our careers in and out of that courthouse by the lake knew and loved Al Delucchi. He was one of a kind and we’ll all miss him…

JBG