[conspire] Reiser case: "Geek defence", Nina-bashing, cash outage, Hans to testify
Rick Moen
rick at linuxmafia.com
Wed Feb 27 05:38:46 PST 2008
Before launching into the defence phase, a few words about some of the
procedural objections heard in the trial so far. Evidence at trial
divides between material evidence and testimony. All evidence is
required to have demonstrable authenticity and relevance, and also
probative value (suitability as proof) sufficient to outweigh its
tendency to prejudice juries. (In the Reiser case, both sides'
attorneys have been forbidden to mention ex-boyfriend Sean Sturgeon's
confession of being a mass murderer: This is almost certainly on
grounds of prejudicial content outweighing probative content. Non-jury
trials are more lax in that area, as judges are assumed trained to have
better evidentiary bullsh** filters.)
The ideal form of testimony: one side presents a witness's testimony in
court, which the other side can challenge on the fly to make sure it
follows rules, and then can cross-examine that witness. But
case-relevant statements aren't always in court. The first rule deals
with that awkward fact of life:
o "Hearsay": The hearsay rule has two parts. The general rule is
that testimony on any point under courtroom dispute must be -in-
court. However, in USA courts, there are also thirty exceptions,
types of not-in-court statements on allegations of fact sought to be
proven that are court-admissible despite not being made in court (and
thus not available for cross-examination and judicial oversight).
Some relate to witnesses who for special reasons will be unavailable.
For example, dying declarations ("The butler shot me!") are
admissible. Also, some types of statements deemed especially
reliable by their nature, e.g., the types of claims embodied in most
business records, are admissible.
When we hear Paul Hora object that one DuBois's witness Ramon Reiser
is speaking hearsay, he means that Ramon is merely recounting
something a third party told him on a point DuBois is trying to
establish as fact -- and, although Ramon's quotation might be
perfect, the problem is that the quoted party present isn't in court
and available for cross-examination. Hence, it's not permissible
testimony.
o "Lacks foundation": Because all evidence is required to have
demonstrable authenticity and evidence, sometimes that evidence
(testimony or material evidence) cannot properly be accepted until
"preliminary evidence" establishes its qualifications. E.g.,
whenever DuBois asked Hans's mother questions based on the implicit
assumption that Hans had been sleeping in his Honda CRX, Hora broke
in with "Objection: No foundation", meaning DuBois hadn't established
evidence for that assumption. (Counsel cannot establish disputed
facts just by implication.)
Sometimes, when one side objects that testimony appears to lack
relevance, the presenting side will defend it as "foundational",
i.e., that it will be needed to supply context to later testimony.
o "Narrative" or "non-responsive": Witnesses are (ideally) not allowed
to wander off topic, and are required to succinctly answer questions
as phrased, and then stop.
Tu 2008-02-19: William DuBois and co-counsel Richard Tamor's defence
strategy starts to unfold as resting on two themes: One, that Hans is a
socially graceless but harmless jerk who committed suspicious-seeming
acts out of oblivious geekishness, rather than guilt. Two, that Nina
Reiser was or is a great deal more sinister than previously portrayed.
First witness was Hans Reiser's second divorce attorney Greg Silva, who
said he'd attempted to get inequities in the initial divorce decree
corrected to be more fair (support payments, visitation rights, etc.).
The attorney gave some details of his deposition of Nina on Th
2006-05-25:
DuBois: "Did she tell you she was pregnant when she was married?"
Silva: "Yes."
[...]
Silva: "She admitted to having an affair with Sean Sturgeon."
(In the deposition, Nina also admitted to Silva that she'd advertised
herself in the "European Connections" bridge catalogue.)
However, Silva described Nina as having said in her deposition "Hans
knew about the affair for at least three years" before her 2004 divorce
filing. "By the time I filed for divorce, the affair was over." She
explained the divorce in her deposition by saying "We accumulated
bitterness and were not happy."
[Referring to early 2006:]
DuBois: "Did she tell you she let Sean Sturgeon still have a key to her
house?"
Silva: "No."
Silva said there'd been dispute over whose weekend the Labour Day 2006
one was, but he believed it had been resolved either between Nina's
attorney Shelley Gordon and one of his associates, or by the Reisers
themselves. He testified about Gordon's Fr 2006-08-25 contempt of court
charge against Hans, alleging that it rested on Gordon's mistaken
judgement about limits to Hans's 50/50 share of children's medical
expenses, rendering her court complaint baseless. He added that Gordon
had refused to resolve the matter amicably and rushed to court.
DuBois asked if Gordon's handling of the matter had been professionally
competent. He was obliged to withdraw the question, but Silva did
comment "The filing needed attention, let me say that."
[About Namesys:]
DuBois: "You had a concern... that Nina Reiser had improperly
diverted funds from that corporation to her own use?"
Silva: [Yes. Says he'd discovered unusually large deposits into
Nina's bank account, in the multiple $10k range.] "I wanted to
follow-up on our theory that some of the money that was
generated by Namesys, as I believe it was, had been diverted to
other purposes other than the business purpose itself. I
wanted to learn just about everything related to the case."
DuBois: "Did you investigate whether or not Nina was embezzling money
from Namesys?
Silva: "I was in the process of it."
In her deposition, asked about very high expenditures for clothing
during 2001-2003, Nina had replied that she "spent a lot of money since
the income was very high. Hans and I both bought luxury items and none
of those charges were hidden."
She had also confirmed that Sean Sturgeon had had full access to
Namesys's business funds, and was even allowed to freely endorse the
firm's cheques, including during the 2002 tax year when the firm cleared
$1.2M in revenues: "Sean Sturgeon was the co-signer and authorized user
of our business bank account with Citibank and Patelco. "Everything is
easy. You just bring it and tell them. It's a small bank. You just tell
them which account you want deposited and it's a credit union and I know
all the bank managers there, they would confirm by e-mail or phone with
us."
The extramarital affair began not long thereafter.
Silva: [Was Hans aware of the affair?]
Nina: "Absolutely."
Silva: "So he knew of the affair right from the beginning?"
Nina: "Yes, he knew of the affair right from the beginning."
In the deposition, Nina claimed that there were essentially no
(meaningful) internal controls against fraud within Namesys, except that
business account control was limited to Hans, Nina, Sean Sturgeon, and
Beverly Palmer. Suspicious deposits to Nina's accounts were still going
on in 2005, as she detailed during the deposition: $6930 in January,
$8615 in February, $15,574 in March. Silva had replied, at the time,
only "Wow."
DuBois: [Was Silva aware that Nina had plans to file for bankruptcy?]
Silva: "I had no knowledge whatsoever."
DuBois: [What effect would such a filing have on the divorce case?]
Silva: "It would have put the complete brakes on any of these
processes. When a bankruptcy is filed in a divorce case, the
assets are turned over to the trustee in bankruptcy, as I
understand it. I'm not a bankruptcy lawyer, but that's my
experience. There's a general stay, a federal stay that is
imposed on the case. The trustee now has possession of all the
assets. The trustee collects and resolves the debts and the
division of assets. The only jurisdiction germane to the
family law court is adjudication of support issues, custodial
issues, and to my recollection that's all there is."
On cross-examination, Paul Hora asked Silva if Nina's heirs would remain
entitled to community property. Silva confirmed that this is true to a
degree.
Hora: [If a spouse dies, does the surviving spouse inherit?]
Silva: "I think that's accurate."
Hora: [But is it true that spouses cannot murder to inherit?]
Silva: "True."
Hora: [Do children inherit remaining community property from parents?]
Silva: "I'm not quite sure I understand the hypothetical. You're
presuming she's dead?"
Hora: "True. I'm saying if she is dead."
Silva: "If she is dead..using your hypothetical, if she were dead at
the hands of her husband, then he would be barred from receiving.
The children would receive their share of the estate."
Hora: "Let's say, if the defendant is convicted of her murder, you'll
still have work to do?"
Silva: [Divorce attorneys would indeed then have to appear in probate
court to determine what the heirs would get, yes.]
Some questions had been deferred because Hora had raised a procedural
hurdle: Silva was bound attorney-client privilege, so he might be
unable to be cross-examined on some matters of, e.g., what he'd said to
Hans unless Hans either released him or would be himself testifying.
These were worked out during an afternoon huddle (looking up a ruling
precedent), resulting in DuBois being allowed to do a second session of
direct testimony, but first Hora resumed cross-examination:
Hora: [Had Silva investigated whether Nina had embezzled funds because
Hans had suggested she had?]
Silva: "He had."
There followed disclosure of a Silva letter to Hans chiding him for
delaying providing material requested by Nina's divorce attorney and
risking having to pay legal fees and sanctions. "Your refusal to
cooperate is only hurting yourself, Hans." Sanctions and other
penalties were "going to be imminent", the letter said. However, Silva
explained this as "quite frankly, a typical cover ourselves letter. We
were covering our law firm."
DuBois: [About Sean Sturgeon's 2004 lawsuit seeking to force Hans to
repay an $84,000 loan, did Hans feel that Nina and Sturgeon
had conspired to steal money from Namesys?]
Silva: [Yes.] "Mr. Reiser felt that he was being sued for money that
was actually his own."
(The suit and a cross-complaint were eventually settled, with Hans
paying sturgeon $10k.)
DuBois tried several times, in different way, to ask Silva if Nina had
substantially lied during her deposition, being shot down each time by
Hora's objection as to relevance. (Goodman reminded DuBois that there
is no finder of fact in a deposition situation, so Silva's _opinion_
would lack relevance.) Finally, DuBois found the right tack, asking if
he'd noted _inconsistencies_ in Nina's responses. Yes, Silva said,
there were marked inconsistencies between Nina's claims about
income/expenses and the Patelco bank statements.
Resuming cross-examination for one question only:
Hora: [Isn't it true that, throughout his nine months of work on the
divorce case, Silva hadn't been able to find] "one penny that
she stole?"
Silva: "True."
Silva started to step down, but DuBois attempted a one-sentence
redirect:
DuBois: "You didn't identify a specific penny that was stolen. But was
Silva's defense to the $84,000 lawsuit filed by Sturgeon that the
entire amount was stolen by Sean Sturgeon and Nina Reiser?"
This question was disallowed as involving hearsay, and "assuming facts
not in evidence" (i.e., lacking foundation).
Second witness was Reiser family friend Coralie Weldon, who testified
that Nina had vented to her in fall 2005 about being unable to support
her preferred lifestyle merely being a bookkeeper for Namesys, and that
she might have to go back to Russia to be a physician again.
DuBois: [Did she discuss bringing the children with her?]
Weldon: "Oh yeah. That was the idea. I didn't experience the idea of
leaving the children behind in that conversation. I said,
'Would you really go back to Russia? And then she came very
close to me and said in a very secretive, hush-hush kind of
way that as long as Hans can visit the children, I can't talk
about leaving."
DuBois: [Was Nina contemplating returning permanently?]
Weldon: "Well certainly that was what I think she was talking about.
That was the most viable, comfortable thing. I don't think it
was a little two-week trip she was talking about."
DuBois: "Did she say she was returning to Russia permanently with the
children?"
Weldon: "I don't think the word permanently was used. What she was
saying, I think she was saying that she thought that she could
earn more money in Russia and that that would be more desirable
and that yet she couldn't do it because as long as Hans could
visit the children."
DuBois: "As long as he had visitation rights she couldn't move the
children to Russia?"
Weldon: "That's right."
DuBois: "Is that what she told you?"
Weldon: "Essentially."
Cross-examination:
Did Weldon participate in the searches for Nina? No. Did she ever talk
to Irina Sharanova? No. "My feeling about that whole thing was there
were many, many people who -- it's not that I wasn't concerned,
obviously I was concerned -- there were many people who were concerned
and were expressing and voicing their concerns. I didn't see anything
that I had to add." Did she attend any of the Help Find Nina vigils?
No. She'd had two hip replacements, had time conflicts, and "I don't
prefer to be out on the grass at night in a crowd. But it has nothing
to do with how concerned I am about Nina."
Hora: [Isn't it true that you better friends with Beverly Palmer
than with Nina?]
Weldon: [She knew Palmer longer, but] "I was just as fond of Nina as
of Beverly."
Hora: "So you like Nina?"
Weldon: "For the most part."
Hora: "Oh there were things you didn't like about Nina?"
Weldon: "There were some things about Nina that I didn't like."
Did Weldon have a telephone conversation with Hans 1/2 hour before he
was arrested? Weldon replied that she'd had a discussion about whether
good educational software would be better than a bad teacher.
Did Weldon remember on what date Nina had expressed a desire to return
to Russia? Weldon said she was pretty sure it was Mo 2005-10-10. How
could she be sure? A long discussion followed about ways she remembers
dates, and another telephone conversation she had with Nina.
Hora: [Had Weldon approached DuBois with the information she was
giving today?]
Weldon: [How else would she be here?] "I made phone calls to his office."
Hora: "In other words, you made him aware that you had this information?"
Weldon: "Yes, because I think it's significant."
Is it true that she visited Hans in jail numerous times? Yes. Did she
arrange to go when Beverly Palmer couldn't? Yes. Did she talk to Hans
about her testimony in court? No. "I'm not very convinced that he did
what he's been charged with."
Hora: "So you don't think Hans committed a crime, and you're aware of
all the evidence in this case?"
Weldon: "I think I'm aware of what is purported to be the evidence."
Hora: "From the Internet?"
Weldon: "No, I don't visit the Internet at all."
She confirmed having sent Hans Thanksgiving and Christmas cards, and a
letter.
We 2008-02-20: Hans's father Ramon Reiser, a 65-year-old retired Army
sergeant and scientist, is on the stand, starting with a description of
Hans as a supremely inquisitive boy non-plussed by displays of emotion.
However, _all_ of Ramon's answers showed an extreme tendency to meander,
leading to innumerable "relevance", "non-responsive", "lacks
foundation", and "narrative" objections: Ramon apologetically explained
that he'd been struck by a bus ten years ago, and had difficulty
concentrating, since then. "It taught me humility."
Ramon is also hard of hearing, so questions often needed to be shouted.
He testified that it was normal for Reiser family members to remove
cars' passenger seats:
Ramon: "We don't repair old cars. We drive them until they fall apart."
DuBois: "When did you do this?"
Ramon: [He'd done this to a '56 VW Beetle, whose seat was broken.
Also a Dodge Rambler.] "It had a seat broken and we didn't
repair it."
DuBois: "When?"
Ramon: "Oh, that was about in the mid 70s. Also, the Volkswagen van we
drove without a seat for several, eight years, that would be, I
know, '83. It didn't have a seat, or give or take five years, it
didn't have a front seat or a back seat."
Ramon: [Hans routinely carried out $10k cash while doing Namesys
business in Russia.] "There was a very serious safety concern
that he was carrying too much money."
[much rambling snipped]
Ramon testified that, a week after Nina's Su 2006-09-03 disappearance,
he'd warned Hans to beware of Russian mafiosi and the "techno-geek S&M
crowd" (presumably referring to Sean Sturgeon's circle). "I told him if
he picked up on anybody he thought was following him, they were not
likely police." (This is part of defence's story about Hans's
"counter-surveillance" actions.) "You got two choices. If she
antagonized or if you have antagonized with relations with her the
Russian or former KGB agents or mafia groups in California whom I have
met in Seattle and California...." (Comment was struck from the record
as non-responsive.)
DuBois asked about Nina's dealings with her children. He said her
dealings with Rory and Niorlene was completely different: "She refused
to acknowledge [Niorlene]." He said "In public, they'd look like the
perfect couple", but never in private.
She was more attentive to Rory, but only for brief stretches: She's
play with him for 20-30 minutes, then instruct a nanny to take over, and
ignore Rory hysterically crying "Mommy, mommy", making "totally no
response" to him. "Nothing. It was bizarre and scary. I've seen it
once before. I recognize it."
On cross-examination, attempted to question Ramon's ability to recall
details generally, grilling him about what colour a sleeping bag was
he'd slept in during his 2001 visit to Hans's family. Ramon's answers
there, as everywhere else, rambled around the subject.
On redirect, DuBois said he'd like to ask about statements Nina made to
Ramon in 2001. Hora objected that this was "beyond the scope" (a
requirement for redirect questions), and DuBois clarified that he was
"going to ask to reopen", which I interpret as asking the court's
permission to conduct renewed direct testimony.
DuBois asked if Ramon had written a detailed e-mail on Sa 2001-12-01,
recounting statements Nina had made about her relationship to the
children, and expressing concern over them. (DuBois clarified, when
Hora objected on relevancy grounds, that he was laying a foundation
about Ramon's credibility as a witness. DuBois was cut off, and his
preceding question disallowed, but he continued on a slightly different
tack.)
DuBois asked Ramon if he'd had that (Nov. 2001) conversation to Nina,
and later consulted his e-mail to refresh his recollection: Yes to
both. After wrangling over procedure, DuBois got Judge Goodman's
permission to read the e-mail to jurors.
Ramon's e-mail had quoted Nina as saying "I promised Rory I would never
make him a brother or sister. I would never give him a sibling. And
Hans made me break my promise to Rory. And I will never forgive him."
(Ramon confirmed that this was accurate.)
DuBois, still quoting Nina's words as recounted in Ramon's e-mail:
"Rory and I decided that we wouldn't reject Niorlene. We
would just accept her but she will never come between us. She
will never be more than accepted. She will never be fully
part of us and I will keep my promise to him that I had to
break."
DuBois: "Is that what she said to you?"
Ramon: "Yes."
DuBois: "Nothing further."
On cross-examination:
Hora: "The date you sent -- you claimed to have sent -- this letter was
Dec. 1, 2001?"
Ramon: [Yes, at 3:01 AM, Moscow time.]
Hora: "And when did you actually have this conversation with her?"
Ramon: "In Cyprus, mid-November." [He mumbled about several possible
dates, saying it was "most likely" Th 2001-11-15.]
Hora tested to see if he knew how to correctly spell his granddaughter's
name. He could. He asked if Ramon was claiming Nina had a conversation
with him concerning 2-year-old Rory, saying how "she was going to never
have another child and how she was so sorry that it happened." Ramon:
"Yeah, that's what I wrote. It was bizarre -- something very sick the
way she said it. She was furious. I've never written an e-mail like
that." (After brief fireworks between DuBois and Hora, Ramon was
excused.)
Next witness was psychiatrist and longtime Reiser family friend Beverly
Parr, who's known Hans since 2-3 years old -- who kept qualifying her
statements with the clarification that Hans has never been her patient,
and she could not make professional comments about him.
DuBois asked her about the definition of Asperger's Syndrome in DSM-IV
(the psychiatric profession's standard clinical textbook, Diagnostic and
Statistical Manual of Mental Disorders, Fourth Ed.). It's a
developmental disorder, and mild form of autism, characterised by poor
development of social skills.
DuBois: [Is it common among "computer geeks"?]
Parr: "I really don't know how common it is. There have been people
who became famous computer geeks who allegedly have or are
speculated to have Asperger's disorder."
DuBois: "You've known Hans for 40 years, correct?"
Parr: [Yes.]
DuBois: "And in his last 20 years would you describe him as a computer
geek?"
Hora: [Objection: Leading the witness.]
Goodman: [The mode of questioning is "sort of suggestive", but allowed.]
DuBois: [Slightly changing the question, asks if there has been a
"potential impairment in his social interaction".]
Hora: [Now, DuBois really _is_ leading.]
Goodman: [Agrees.]
DuBois: [Any examples of Hans's social impairment?]
Parr: [In grade school and jr. high, Hans would be] "very kind,
polite and nice" [and yet have] "difficulty communicating
spontaneously. It wasn't 'Hi, how are you,' it was kind of
stiff. The eye contact wasn't non-existent, but he would
look at me, then look away. The eye contact was impaired."
Parr described Hans as "aloof" while still polite and extroverted.
I'll summarise, rather than quote, a long dialogue where DuBois
established that Asperger's subjects are overfixated on some subjects,
inclined to skip group activity like sports, obsessive, paranoid,
stubbornly set in their convictions, relatively good with verbal skills
yet somewhat communication-impaired, are likely to spend time mastering
information and facts, sometimes very intelligent, lacking in social
graces, and usually male. Parr agreed that Hans is all of those things,
and "consistent with" if not necessarily diagnose-able as having that
condition, and that he "probably" had Asperger's.
Hora's cross-examination asked about Parr's diagnosis of Hans. As he'd
presumably planned, she carefully disclaimed any intent to diagnose him,
his not being a patient and her having a firm policy of not treating
friends or their children.
Hora attempted to portray her testimony as orchestrated with the
defence: To the contrary, she said she'd come to the Bay Area in
advance of being subpoenaed in order to talk her way out of testifying.
Hora got Parr to produce, and projected for the jury, a handwritten note
from the defence that she'd received a short while before: "It is OK to
do the Asperger's diagnosis. I won't sue you. Hans."
Questioned if she were a qualified expert on Asperger's or had a history
of seeing that syndrome's patients, she said no to both.
Hora got her to agree that a person might have any or all of a series of
personality traits and _not_ have Asperger's: shy, introverted,
hard-working, committed, rude, insensitive, socially inappropriate,
selfish, conceited. Also, in possession of free will, able to raise
children, able to intend and carry out premeditated murder, able to
evade police detection.
Hora: [Did Parr know that Hans had earned a black belt at a nationally
renowned judo academy?]
Parr: "Yes."
Hora: "And that he participated weekly or basically worked out with
groups of people at the judo academy and formed social
relationships with people there, with friends?"
DuBois: "Objection: that calls for an opinion."
Goodman: [Answer needn't be that specific, so overruled.]
Hora asked if Hans's personality might also be consistent with
narcissistic personality disorder, pointing out that Parr had underlined
that phrase in her copy of DSM-IV, and I believe she gave no clear
reply.
Th 2008-02-21: Hora resumed the suggestion of narcissistic personality
disorder. She agreed that he showed the characteristic lack of
spontaneity, but said most patients she'd encountered have been
_lawyers_ rather than computer specialists. On balance, she would not
consider Hans to meet the description.
Hora asked if naming a filesystem after himself might not qualify as
narcissistic. Parr countered that it wasn't any more than Hans
Asperger's choice of naming a mental syndrome after himself. She denied
that he's characteristically cold and unfeeling, though she admitted
that "usually aloof" fits. Likewise, "arrogant and haughty" didn't seem
to fit, but rather preoccupied and sometimes compulsive. She denied
ever seeing hypersensitivity to criticism, feeling "humiliated,
degraded, hollow, and empty", and reacting with "disdain, rage, or
defiant counterattack." Likewise "preoccupation with fantasies of
unlimited success, power, brilliance, beauty, or ideal love", or the
quality of "lacking empathy, unwilling to recognize or identify with
the feelings and needs of others, often envious of others or believing
that others are envious of him or her."
On redirect, DuBois asked if Parr were a "chronic underliner" of text in
her DSM-IV volume and elsewhere. "Semi-chronic."
Drawing the comparison between narcissistic personalities who merely
_believe_ they're outstanding, and those who really are, was Parr aware
that "Hans has achieved outstanding success in his field?" Hora
objected to his leading the witness, but Parr said yes.
DuBois: "Are you aware that Hans Reiser actually has superior
achievements in his field?"
Parr: "Yes."
DuBois: "Do you agree that there's a major difference between someone
who's narcissistic and someone who has a grandiose sense of
self-importance without commensurate achievements?"
Hora: "Leading."
Goodman: "Sustained."
DuBois: [rephrasing:] "Would that be a major difference between
someone who has a grandiose sense of self-importance without
commensurate achievements and Hans Reiser, who _has_ commensurate
achievements?"
Parr: "Yes. Generally a difference."
Next, DuBois called Beverly Palmer, Hans's mother, asking her about a
conversation she'd written about having had with Nina, at a time (during
the divorce trial) when Nina had already kept the children in Russia a
month longer than promised. Did Nina "threaten to go live in Sweden
instead of living in the United States", as Palmer had written?
Palmer: "Yes."
DuBois: "She also said that she would not return until a large amount
of money was put into a bank account for her, is that right?"
Palmer: "That's right."
DuBois: "How large an amount of cash?"
Palmer: "I don't really remember now. I don't -- $20,000, $30,000 -- I
don't know. [Palmer added that Nina talked about getting a job in
Sweden and moving there with her children.]
DuBois: "She, in fact, did return?"
Palmer: "Yes."
DuBois: "But she threatened, in fact, not to return?"
Palmer: "Yes." [Affirms, when asked, that her written declaration
about this discussion "truly and accurately reflects your
recollection of what happened" and was written when the
incident was fresh in her mind.]
Just before Labour Day weekend 2006, before she left for Burning Man,
Palmer says she told Hans he's an "inconsiderate slob and he should
clean up his act." She said "he made a mess around the house, that he
didn't clean it up and that I want him to clean it up."
DuBois: "How about the cars he used?"
Palmer: "He left all kinds of garbage in them and didn't clean it up."
DuBois: "Did you tell him he had to clean up the house, and did you
tell him if you didn't clean the house he had to leave?"
Hora: "Leading."
Goodman: "Sustained."
DuBois: "Did you tell him he had to clean up the car?"
Palmer: "Yes."
DuBois: "Did you threaten any sanctions if he didn't clean up the car?"
Palmer: "If he didn't clean up the house and the cars, he couldn't live
with me and use my cars anymore."
DuBois: "Did you have cherry trees in your neighborhood?"
Palmer: [Yes, including some on a house a couple of doors down.]
DuBois: "Do the cherry blossoms blow into your driveway?"
Palmer: "The blossoms and the leaves all blow toward the driveway, yes."
DuBois: "Do people who drive on your street necessarily run over
cherry-tree blossoms and leaves?"
Palmer: "I would think so, because they're on the street."
DuBois: "By the way, as to the driveway, did you address the driveway
with Hans? Did you ask him to clean up that act also?"
Palmer: "Yes."
(All of these points directly attack elements of prosecution's
circumstantial evidence.)
DuBois showed videotape of Hans and Nina's artsy and informal outdoor
wedding in Tilden Park, Berkeley, co-planned by Beverly and Nina.
Palmer agreed that the majority of guests were not associated with Hans,
as he had no real circle of friends.
On cross-examination, Hora asked Palmer if psychiatrist Beverly Parr
attended the wedding. "Yes." Was she suggesting, then, that Hans had
only one friend in all the world? No, but "I'm not privy to Hans's
private life."
Hora: "So, you don't know if he has any friends?"
Palmer: "He could have close friends that I don't know about."
Was her written declaration about the conversation with Nina hers, or
did someone else write it and she just signed it? No, it was hers --
and she said she wrote it Tu 2005-01-11, reporting a conversation of
summer 2004.
Did Nina call her? No, the reverse. Why? Probably to see how the
children were doing.
Hora asked, rhetorically, if perhaps Nina had intended that Palmer
convey the threat to Hans, to motivate Hans to provide money. Palmer
declined to speculate, saying she didn't know if money were provided,
but knew only that the children were brought back. "I don't remember if
she told me to tell Hans."
On further prodding, Palmer admitted that she'd written the declaration
during the divorce proceedings, and probably had been encouraged to
write it by Hans -- but that it was accurate. Why didn't she report the
incident to police? "It just didn't occur to me." But, by contrast, it
_did_ occur to her five days after Nina's disappearance that "'something
terrible had happened' to Nina, right?" "Yes."
Hora: [And she'd also told police that Nina] "would never leave her
children?"
Palmer: "I didn't think she would, but my mind has changed. I changed my
mind later."
Hora questioned her over other, similar statements to the police at the
time of Nina's disappearance, that Nina ""really is a lovely person" and
wasn't the sort of person who would "just take off". How does that jibe
with Nina's alleged prior threat to abscond with the children to a
foreign country? "Well, I guess I forgot about this. It wasn't on my
mind" [at the time of Nina's disappearance].
Wasn't it a heck of a coincidence that she made her ultimatum to Hans
about cleanliness exactly as she was heading off to Burning Man? "I
probably was just getting fed up with his messiness." She noted that
the ultimatum worked.
Mo 2008-02-25: With private investigator Clarick Brown on the stand,
jurors got to watch a videotape of Hans lecturing on Mo 2006-02-06 about
Reiser4. (The point probably was to portray Hans in full-on, socially
hopeless geek mode.) Brown then testified (with matching videotape)
about checks he conducted on Hans's Honda CRX, e.g., someone of Hans's
size lying down in it with the passenger seat removed.
Next witness was private investigator Warren Levicoff, testifying about
how easy it is to leave the country without leaving a record by just
walking across to Mexico or Canada, or taking a fishing boat, and then
either using stolen or fake passports or new genuine papers for further
travel. He said it's "no big deal" to travel around the world that way.
On cross-examination, Levicoff agreed that he couldn't tell if Nina's
two passports were authentic or not, but that they looked good. He
confirmed that he had _not_ been hired to find Nina, even though he has
an affiliate office in Moscow and that he's found people in Russia
before.
The last court item of the day was not evidence, and was carefully heard
outside the jurors' hearing -- but was highly important: DuBois
reported to the court that defendant Hans Reiser is now indigent (i.e.,
out of money), having had his slim savings totally eaten up by legal
costs. Defence therefore can call expert witnesses only using court
funds -- and DuBois's point is that Hora's implication to the jury that
Hans's failure to hire Levicoff at $1000/day professional rates to find
Nina was unfair and prejudicial.
Judge Goodman rejected this complaint, saying "Wait a minute. I'm not
sure that's necessarily true. I mean, what happens if Beverly Palmer
wants to pay for it?" However, Goodman agreed to DuBois's request that
he "take judicial notice" of Hans's indigent status -- enter it into the
record as a fact that then cannot be disputed by either side.
Goodman said he intended to decide DuBois's pending mistrial motion the
next day -- and understands that DuBois also intends a second mistrial
motion alleging the Hora's cross-examination of psychiatrist Beverly
Parr, arguing for narcissistic personality disorder, was also unfair and
prejudicial. Last, he noted that both sides had agreed to use the
California Judicial Council's standard jury instructions ("CALJIC").
(RM note: This is the older instructions, which California has
deprecated in favour of newer "CALCRIM" ones starting 2006. See:
http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/
Tu 2008-02-26: Witness Cimmaron Taylor, software engineer, was a fellow
student with Hans at UC Berkeley. He testified that Hans could have
made a fortune licensing his filesystem under proprietary terms or
dual-licensed a la Sleepycat. He gave jurors a quick overview of
ReiserFS 3.6 and Reiser4. Taylor described the Hans Reiser he knew at
the Evans Hall computing facility as cerebral, effective in arguments,
likely to tell people with no reservations but also no heat that they
were mistaken.
The only time he'd seen Hans upset was when another student had jammed
his machine with 5,000 delivery failure DSNs (delivery status
notification mails). "He couldn't use his e-mail at all during that
time." Hans had been annoyed enough to push the other student, but no
fight resulted.
On cross-examination, Hora questioned Taylor about a recent _Daily
Californian_ (UC Berkeley student paper) story about Hans, in which
Taylor had been quoted about the 5000-e-mails incident. Taylor
disagreed with another quoted student's opinion that Hans had been upset
over not getting a "hero's welcome" at Cal after returning from a job on
the East Coast. He agreed that Hans is "a little" arrogant, reluctant
to admit he's wrong, and overestimates his abilities -- but Taylor felt
that's true of software engineers generally.
Last witness of the day was attorney Cheryl Hicks, who represented Hans
in Juvenile Court (trying to recover the children). Hicks testified
that Hans had been perturbed at Oakland PD's role in the custody
hearings, including their submission of a secret filing urging Hans
_not_ be given the children, the nature of that filing never having been
revealed.
Hicks had noted that the entire proceeding had been based on Oakland
PD's false assertion to Family Court that Hans had lacked, at that time,
lacked any entitlement to physical custody, so she filed a "demurrer"
asking Family Court to vacate its custody order. (RM: A demurrer is a
"If so, so what?" filing, where you say that even if everything the
other side claims is true, objective legal reasons prevent your opponent
from having a valid legal claim aka cause of action in the first place,
such that the entire case should be dismissed.) At this point, it was
noon, and the jury left for the day.
The afternoon was devoted to pending motions, but first Goodman revealed
the revised trial schedule. Hicks's testimony would conclude, then a
DNA expert and a psychologist would speak, then on Thursday or Monday
Hans Reiser himself (overruling his own attorney's recommendation) will
take the stand, probably running through next week. Then, a week off,
then closing arguments the week of Mo 2008-03-17, then another week off,
then jury instructions and deliberation the week of Mo 2008-03-31.
Much discussion of DuBois's mistrial motion occurred. It sounds as if
Goodman was ruling against that motion, alleging that he'd made no
misleading comments to the jury, but a formal decision could be still
pending. Next, the traditional 1118.1 motion for dismissal on grounds
of insufficient evidence was denied: Goodman believes the evidence
presented was sufficient in quantity that, if believed, could support a
conviction, which as all that Penal Code section 1118.1 requires.
Third, DuBois's newer motion for mistrial, over improper
cross-examination of Beverly Parr, was also accepted, and prosecution
will prepare a response by Mo 2008-03-17.
Last item of the day was a note from Hans Reiser: DuBois, speaking for
Reiser, reiterated Hans's complaint that the court, in allowing Irina
Sharanova to return Rory Reiser to Russia against Family Court orders
and contrary to her promise in Dec. 2006, had violated Hans's
due-process rights and could be grounds for a new-trial motion. "We are
requesting that the court either order that Niorlene be produced or, in
the alternative, that her statements (to various investigative agencies)
be admitted into evidence."
Goodman rejoined that he (still) lacked jurisdiction, and would need
cooperation of "a number of different agencies" to order Niorlene's
return, but invited DuBois to file a formal motion with "points and
authorities". DuBois said this, too, would arrive on Mo 2008-03-17.
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