Revisiting my posting about Th 2007-11-15, the last day of Rory Reiser's
testimony, for a moment, I had recounted:
> DuBois: "You remember you saw your mom go up into the street?"
> Rory: "Yes."
>
> During Hora's prior direct testimony, he had been a bit confusing on
> that same point:
>
> Hora: "Do you remember whether your mom even left after she gave you a hug?"
> Rory: "No." <pause> "She left."
> Hora: "How do you know?"
> Rory: "What can she do?"
> Hora: "What do you mean by that?"
> Rory: "No one stays in a house if they say goodbye."
> Hora: "Do you remember your mom saying goodbye?"
> Rory: "Yes."
> Hora: "So, you think if she said goodbye, she must have left?"
> Rory: "Yes."
Turns out, the article that I based that on was a little muddled,
so I missed a procedural basic: The second exchange (with prosecutor
Paul Hora) was _not_ earlier, but rather was Hora's followup "redirect".
To explain:
Big picture, a criminal trial goes like this:
1. Prosecutor's opening statement.
2. Defence's opening statement.
3. Prosecutor's case: witnesses and exhibits. <= WE ARE HERE.
4. Defence's case: witnesses and exhibits.
5. Prosecutor's closing statement.
6. Defence's closing statement.
7. Jury's decision of whether prosecution has proved each criminal
charge, as a question of fact, past any reasonable doubt.
(Jury consults judge on any legal questions. If it's not a jury
trial, both tasks fall to the judge.)
8. [If applicable:] Judge's decision on sentencing.
We are now hearing the testimony of prosecutor Hora's witnesses, by
which Hora is attempting to convince the jury that (1) Nina Reiser is
dead, (2) she was murdered, (3) Hans Reiser had the character,
means, opportunity, and motive to murder her, (4) compelling
circumstantial evidence including Hans's suspicious actions and the two
drops of blodd suggests he did so, (5) no compelling reason exists to
suspect anyone else, and (6) Nina would never leave her children.
(Remember: defence's case hasn't been seen, except in preview during
cross. Defence obviously intends to portray Nina as a big-spending,
deceptive, manipulative opportunist at risk from a large number of
casual boyfriends, who plundered Namesys's slender treasury, had an
affair with Hans's best friend, dumped Hans after he ceased to be
useful, and used her children mainly as a means to pump money out of her
estranged husband.)
A witness's primary testimony, under questioning by the side that called
him/her, is called the "direct" phase of testimony. (Competent trial
lawyers only ask questions during "direct" whose answers he/she already
knows.) Following that, opposing counsel can "cross-examine",
challenging the truth, reliability, or relevance of witness's allegations
during direct. Cross examination questions are limited to matters
exposed during direct -- and opposing counsel is allowed to "lead" the
witness using rhetorical questions (because the witness is assumed
hostile).
Last, the calling side's attorney _can_ (if he/she wishes) have a brief
followup session with his/her witness, called "redirect", whose intended
purpose is damage control: Counsel prompts the witness to further
explain some immediately prior testimony to assert why he/she isn't
actually the idiot (or liar) that opposing counsel implied during
cross-examination. The witness gets prompted to clarify confusing
statements, elaborate (for clarification purposes) matters that became
confused during cross-examination, or correct erroneous statements.
Hora _followed_ (not preceded) William DuBois's cross-examination of
Rory with a brief redirect: The bizarre twist, in _this_ particular
case, on standard criminal-trial precedure was that Hora tried to
systematically destroy his own lead witness's credibility during direct,
DuBois tried to re-establish it on cross-examination, and now Hora was
trying to knock it down again.
If the jury ends up believing Rory's answer to DuBois's question (in
which Rory repeated his December statement to Oakland PD) -- that Rory
saw his mother walk out, get in her car, and drive away -- then Hora's
murder scenario immediately shatters, for lack of opportunity. So,
Hora, on redirect, pushed Rory away from his prior, clear statement to
cast doubt on it.
Children's testimony notoriously bedevils attorneys: kids' answers are
unpredictable. Also, counsel must be ultra-careful to avoid appearing
to attack the child, especially during cross-examination.
Mo 2007-11-26: Hora's second witness was supposed to be embittered
mother-in-law and (illegally) custodial grandparent Irina Sharanova,
visiting from Russia, but she's been reshuffled to January. Also, it
was confirmed that son Rory has now been flown back to Russia, as Hans
had feared.
Prosecution's next witness was Nina's fellow daycare parent Marni
Hunter, who'd collaborated with her on "classroom parties and projects",
and was the class's "room mother". Hora used her to support his notion
of Nina's character as a dutiful parent, and support his supposition
of Hans remaining enraged over the child-custody judgement. Hunter
described Nina as always signing up for daycare volunteer work over
their several years' acquaintance at Grand Lake Montessori. Asked by
Hora as to whether Nina had ever mentioned an intention to abandon her
children, Hunter said no.
She said her only contact with Hans was a telephone call she'd made to
verify that he'd be paying for a "pizza event", in which she says he'd
ranted about Nina's bad-mouthing him over supposedly not paying costs,
which he insisted he always did, and wanted to know what Nina was saying
about him.
DuBois's cross-examination asked if Hunter's conversations with Nina had
addressed the Reiser children's therapy sessions, former boyfriend Sean
Sturgeon, Nina's forays into sadomasochism, the Craigslist ads Nina'd
run seeking male companionship, or the time Nina (allegedly) left her
children in Russia and "went elsewhere". Hunter said no, they had
talked only in context of school matters, and it was "not a social
relationship".
Next up was Nina's divorce attorney (and former Alameda County assistant
DA[1]) Shelley Gordon, who described the two-year divorce proceedings as
very adversarial and protracted, some of the fights descending to the
level of whether the children's psyches were being damaged by exposure
to violent movies and video games, and selection of a child-evaluation
expert to answer that question.
Gordon testified that, in summer 2006, she'd filed a civil contempt
complaint against Hans alleging that his Family Court-ordered payment of
$54,000 (later $15,000 - see below) for ten months of child support had
been "late or not at all" (something Hans denied; the matter never came
to trial): Gordon revealed the startling fact that she'd gotten Hans
ordered to pay Nina $5,400 per month in child support -- $64,800 per
year![2]
Opinion: One starts to understand why Hans was upset with Oakland
Family Court: His firm Namesys, Inc. was fairly clearly a shoestring
operation from the get-go, and some judge was delusional in believing
that $64,800 / yr. was an equitable level of support in a
shared-physical-custody scenario involving a non-wealthy parent. (I
suppose it's physically _possible_ Hans isn't a small-time operator,
but, as Damon Runyon said, "that's the way to bet.")
Note: Nina having sole legal custody meant that she could unilaterally
decide _all details_ of the children's health, education and other life
decisions, and then get Family Court to stick Hans with the bill.
Seen from prosecution's perspective, these matters are, of course, a
plausible murder motive: Gordon's civil contempt complaint had been
scheduled to be heard 2006-10-11. Nina disappeared on 2006-09-03.
Tu 2006-11-27: DuBois cross-examines attorney (and ex-assistant DA)
Gordon, who successfully evades court norms that witnesses stick to
simple and direct answers, and instead slides protracted editorials in a
meandering style into nearly every reply to DuBois's questions.
E.g., DuBois asked if Nina's estate stood to gain any stake in Hans's
company Namesys, if Hans were convicted of crimes.
Gordon: "I suppose she would have an interest in that. Hhowever, I
think it's valueless. If you have an interest in something
that's not worth anything, it's not worth pursuing."
DuBois: "Thank you for sharing.'
As Gordon continued to play this game, DuBois frequently asked the
court reporter to "listen carefully" while the court reporter read back
questions to which Gordon had blatantly non-responded. He frequently
rejoined to Gordon's non-responses "Do you remember the question?" or
"Thanks for sharing". However, rather than reining in the misbehaving
witness, Judge Larry Goodman rebuked DuBois for his tone, at several
points:
"Bill, stifle yourself."
(After DuBois said he was merely trying to get straight answers out
of an evasive witness): "I understand, but you can do it in a
respectful manner."
"Bill, if you ask a question and you don't like the answer, it's not
her fault."
With Gordon out of the room, the two attorneys butted heads on DuBois's
demeanor. Goodman took no action, other than to opine that despite
being "one of the best trial lawyers I know, and you know how to control
a witness, [...] you are not doing anything to control this witness."
[1] In the name of even-handedness, I should mention that DuBois _also_
had a prior career as a prosecutor in Alameda County's District
Attorney office.
[2] Quizzed by DuBois about where the $5,400/mo. figure came from,
Gordon testified that she'd used in court Nina's claim that her husband
had "$20,000 monthly" in income from companies supporting ReiserFS v.
3.6 and Reiser4 development via contracting work. Gordon seemed to use
the term "income" to refer to revenues, i.e., disregarding expenses:
"He was getting $16,000 or $17,000 a month from Digeo. I spoke with the
Digeo people." Apparently, Family Court bought this rather woefully
incompetent financial analysis -- and so ordered.