[conspire] Reiser case: Hans's paranoia, a psychologist speaks, Hans testifies

[Rick Moen]

We 2008-02-27:  DuBois is still questioning his witness, Hans's 
Family Court attorney, Cheryl Hicks -- attempting to build a case
that Oakland PD and Family Court's ripping away of his children 
caused (and justified) his paranoid actions after Nina's disappearance.
DuBois attempted to get Hicks to repeat what PD Officer Ryan Gill 
told Family Court to motivate the custody order; this was shot down as
"hearsay".  

Hicks portrayed a situation where Oakland PD's petition to the Court to
seize custody of the children was founded on inaccurate claims, e.g.,
that Hans was unable to support the children and had no custody rights,
and summed the petition up as "bogus".


On cross-examination, Paul Hora asked Hicks why, if the Family Court 
custody proposal was so bogus, she lost so soundly.  She basically said
she should have won, impliedly calling the ruling improper, and
explained having not appealed that ruling with the somewhat cryptic
remark "There was a finding."  

Hora called attention to Hicks's not having called Hans as a witness, to
show what a good father he is (implying that he wasn't called because
he would injure his own case).  Hicks commented that they'd "had limited
time", and that she "didn't want to do" that.

On redirect, DuBois asked Hicks if she'd considered Hans's personality
in deciding not to have him testify.  "Yes."  

DuBois:  "Did Hans voice to you his opinion of the lawyers...."
Hora:    "Irrelevant."
Goodman: "Sustained."
DuBois:  "It goes to his and her decision not to call..."
Goodman: "No, Mr. DuBois. I'm really getting tired of you arguing with
         me every time I make a ruling."
DuBois:  "May we be heard?" [privately, in chambers]
Goodman: "You don't need to be heard with that kind of tone. You don't
         need to be heard with that kind of disrespect."
DuBois:  "I didn't mean any disrespect,"
Goodman: "Believe it or not, Mr. DuBois, quite frequently I'm correct
         in my rulings. I don't need to have every one of them argued 
         after I rule.  If you wish to make a record and dispute what I
         say, do so outside the presence of the jury."

The jury was dismissed for lunch, and the lawyers went into a protracted 
wrangle about what Hicks was allowed to testify to.  DuBois wanted and
expected Hicks to testify that she'd kept Hans off the stand primarily
because he'd expressed contempt for lawyers and the Family Court
process.  Goodman essentially foreclosed this avenue of questioning on
hearsay grounds, but pointed out that Hans could testify to that matter
when/if he took the stand.


After lunch, still with the juries out of court, a similar wrangle
followed about what testimony clinical psychologist Michael Fraga 
would be permitted to give as an expert witness -- and whether he could
testify at all.  DuBois said it would concern "the relative credibility
of statements by children on many subjects" (e.g., young Rory Reiser's
crucial claim that he'd seen his mother leave).  He would not, DuBois
stressed, comment specifically about Rory's statements, but rather speak
generally about "how kids' minds work", to persuade jurors that "some of
the things [Rory] says can be assigned credibility".

Asked (by Hora) why an expert witness is needed to establish that
children should sometimes be believed and sometimes not, DuBois said the
point is that this child had been "repeatedly interrogated", and jurors
needed to hear what effect that interrogation can have.  Hora kept
objecting that jurors needed nothing more than common sense.  To help
decide, and saying that DuBois had been inconsistent and vague about the
purpose of Fraga's testimony, Goodman requested that Fraga answer some
preliminary questions without the jury present, as a "voir dire" process
to qualify him to testify.  (In the middle of the three-hour squabble
that followed, the jury, which had arrived in the back room, was sent
home for the day.)

Fraga took the stand, saying he's a clinical psychologist with a practice
in forensics neuropsychology and psychopharmacology, and clinical
director at "the Ananda Institute" of Santa Rosa
(http://www.ananda-institute.com/).  DuBois attempted to clarify:  Fraga
would be rebutting Hora's claim that a 6-year-old like Rory was "just
too little to believe", and also talking about Asperger's syndrome
(especially appropriate since Hora had objected about prior witness
Beverly Parr not being an expert on that subject, whereas Fraga is one).

Hora grilled Fraga:  Is it true that he has Federal criminal convictions
for drugs and for forgery?  "Yes."  (He sold cocaine to an undercover
DEA officer, and forged a US Treasury cheque, serving two years in
jail.)  Is it true that his parole was revoked because of a traffic
citation?  "Yes."  How would his testimony differ from common sense 
judgements about witness reliability?  (Fraga gave a murky answer about
common sense being a poor guide.)  


Th 2008-02-28:  Wrangling continues -- but this time, in front of the
jury.  Fraga admitted that his parole was revoked, and he spent a third
year in prison, because of a hit-and-run DUI car crash, getting out in
1985 or 1986.  He then got his master's degree in psychology and went to
work for Ananda Institute.  How many children has he interviewed in his
professional capacity as a psychologist?  About 200 -- but also about
1,000 in other social-services capacities.  What sort of expert witness
was Fraga being offered as?  DuBois answered:  "an expert in the field
of cognition as it applies to children."

How many times has he testified as an expert witness on child cognition?
None previously.  Hora pointed out that the Ananda Institute Web site
doesn't show Fraga as an expert on child cognition.  Fraga answered that
the site lists programs, not specialties.  Has he been published in the
field of child cognition?  "Not at this time."  He's never published
research in that field, either?  "That's true."  

Hora:   "You've never performed, given any classes or courses about the
        cognition of children?"
Fraga:  "Cognition of children is part of the neuropsych protocol."
Hora:   "Says who?"
Fraga:  "Just by default of the profession."

Eventually, Judge Goodman ruled that Fraga was qualified as an expert
witness on child cognition, but not generally as a child psychologist.
Finally, direct testimony starts.


DuBois: [Please define cognition.]
Fraga:  [Among other things,] "Cognition is a big envelope of skill sets."

Fraga confirmed that he'd looked over the police interview transcripts
and court testimony of young Rory Reiser, as conducted by various
officials.

DuBois:  [Did Fraga form any opinion about those interviews?]
Fraga:   "There was significant variation in the interview style across
         the interviews, of styles."
DuBois:  "Do you feel that the styles affected (the boy's) ability to
         recall and recount the events about which he was interviewed?"
Fraga:   "It would appear, from the transcripts, that the techniques
         used in the interviews or the way he was interviewed fostered 
         confusion and resulted in many instances of... [Fraga shrugs]
         variable responding.   In other words, different answers to 
         events, circumstances and individuals."
Hora:    [Objection.  Fraga isn't allowed to testify about Rory's statements 
         specifically.]
Goodman: [Sustained.]

However, Fraga went on, about his review of Rory's interviews, that he'd
noticed "changes in story, themes and confusion, seeming confusion --
I'll drop the word confusion."
  
Hora:    [Same objection.]
Goodman: [Sustained.]

DuBois:  [Says he'll try to keep the witness more on track.  Asks Fraga if
         he could briefly describe the interview process he'd observed.]
Fraga:  "I was surprised and saddened by the techniques that were used
         and the various players to elicit information from Rory."
DuBois:  "Can you talk generically about interview techniques and how
         they may, generically, affect one being interviewed, who could 
         be of age 6 years, 11 months and 1 week -- approximately?"
Fraga:   [Not necessarily about that very specific age, no.]
DuBois:  [Can interview techniques affect the way children recall and
         recount events in their lives?  For example, would referring 
         to a Tuesday in the past have any meaning to a young child?]
Fraga:   [Notes that _he_ has problems remembering specific days, and 
         he's 52, not 6.]   "If the normalcy of the child's day,
         if the pattern of the day is the same, then for the child to 
         tell you about the last Tuesday is going to be couched more 
         in terms of 'Well, we always' or 'many times' or if they talk 
         about what they tend to do on Tuesday.  If Tuesday's karate day, 
         well that's karate day."
DuBois:  [How likely is it that a young boy will remember the events of 
         Sept. 5 as happening on Sept. 5?]
Fraga:   [Without a key event to hang it on, not likely at all.]
DuBois:  [Could a child's separation from his parents and being told
         that one of his parents was in jail, because he won't tell 
         where the other parent is, affect the child's ability to
         think about past events about his parents?]
Fraga:   [Yes, that would lead to a "retraumatization of the child"
         concerning "original loss, the unknowing, the out-of-controlness.
         And keeping in mind that children at that age, memory is tied to 
         events that affect them, it becomes -- you talk about 
         retraumatization."  [That knocks a child off balance and] 
         "creates problems in the balancing."

Fraga detailed how recurring discussion of traumatic events with adults
will inevitably influence children's recall of those events.  

DuBois:  [If a 7-year-old had repeated conversations with therapists,
         social workers and caregivers about a traumatic event that 
         occurred six or seven months earlier, could the child] 
         "manufacture or hallucinate about events in connection with 
         the traumatic events, including the separation of his parents?"
Fraga:   [balking]  "Hallucination is a whole another..."
DuBois:  [backtracking]  "I shouldn't have used that, Your Honor.  [pause]
         Could he dream about, could he make up thoughts?"
Fraga:   [Children] "develop varying sets of beliefs, ideas, storylines"
         [with respect to a sequence of events, depending on] "who's 
         doing the telling and what they're telling."
DuBois:  "What I'm getting at is, after a few months of discussions,"
         [could a 7-year-old start thinking about the topic with] 
         "made-up facts?  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:  [If the child has been told his father killed his mother,]
         "could the kid start envisioning scenes that are consistent
         with his father killing his mother?"
Fraga:   "That would be within the scope."
DuBois:  [Could a child eventually have nightmares?]
Fraga:   "Yes, I imagine."

(Fraga is shown the two of Rory's drawings that Sharanova had mailed
from Russia to Paul Hora.)

Fraga:   "This, to me, is a confused drawing.  One of the hypotheses I 
         give to the drawing is confusion."

(Speaking of the other drawing, that Hora suggested showed Nina in a 
bag being carried down stairs by a stick figure that Hora says is 
supposed to represent Hans:)

Fraga:   "I have a stick figure with the name 'Hans' attached to it,
         holding a balloon or a bag of some sort that says, 'I think 
         here is Nina'  That's all I have.  So I don't -- there's no
         direction to this particular drawing."  [There's nothing except 
         a stick figure holding a bag and two names attached to it.]
DuBois:  [Could a child told for months of discussions that his father 
         had murdered his mother produce a drawing like that?]
Fraga:   [If the discussions involved] "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."  [Refers
         to children's testimony in the McMartin Preschool case that 
         was prompted by interviewers and false, costing millions of 
         dollars for a baseless trial.]
DuBois:  [Why did he say the other drawing indicated confusion?]
Fraga:   "There's no readily apparent theme.  There are a series of 
         'I'm-not-sure images,' and they're either incomplete or
         scratched out, or....  [Shakes head.  Says there's not
         a theme to the drawing.]  "It appears to be several different 
         renderings that happened to land on one sheet of paper.  The 
         connectivity between them is not apparent to me."
DuBois:  "Are you familiar with the [Jean Piaget] study that children's 
         memories can be affected by the input they receive from adults?"
Fraga:   "Absolutely."  [Fraga described a scenario where a child hears
         an older sibling tell a story repeatedly, eventually coming to
         believe that it happened.]

DuBois:  [Could the two diagnoses of Asperger's syndrome and narcissistic 
         personality disorder be confused?]
Fraga:   "Only by a poorly trained clinician."  [Asperger's manifests
         early, is genetic, and shows as fixation.  Narcissism is seen
         in older patients.  Asperger's entails missing social cues, 
         inadvertently coming across as "disconnected or internally
         focussed or rude".]
DuBois:  [Could this trait come across as arrogance?]
Fraga:   "It could be in older children, if there's not any work done
         with them."
DuBois:  "Narcissistic people, are they capable of picking up social
         cues?"
Fraga:   "Narcissistic people, 'what will you do for me?' is the general
         functional operation of the narcissist."  [Friends, business 
         partners] "how do you make me feel better about me?  How do you 
         make me shine more?"  [Narcissists use full-length mirrors but 
         don't want to get married because they wouldn't have any wall 
         space.]  "It's very 'about me,' which often-times is a compensation 
         for gross insecurity."
DuBois:  "Do narcissists routinely develop very highly-tuned social
         skills?"
Fraga:   [They do towards the goal that] "you realizing how wonderful I
         am.  So all of my social skills are targeted around the
         world acknowledging my magnificence."
DuBois:  "Whereas an Asperger's person has zero social skills?"
Fraga:   "Social cuing, right."  [Asperger's victims tend to use 
         monotones, where normal people would modulate tone.]

On cross-examination, Hora asked if adults are susceptible to
suggestion, too.  "Absolutely."  How much would Fraga be making, today?
About $7,000, including expenses, he says.

Hora:    "Would you agree with me that testifying in court is a fairly
         lucrative part of the practice?"
Fraga:   [Along with neuroscience work, yes:   Court testimony makes up
         about 25% of his income.]
Hora:    [Did Fraga identify himself as a "social historian" in a
         different trial?]
Fraga:   [Yes.]
Hora:    [What does a social historian do?]
Fraga:   [Humanise the defendant, to make the jury understand his/her
         life experience.]
Hora:    [How many criminal cases?]
Fraga:   [10 capital cases, some dozens of non-capital ones.]
Hora:    "Always for the defense?"
Fraga:   "I think I did a prosecution over in Martinez one time" [but
         he wouldn't swear to that.]
Hora:    "Maybe all of your cases, with the exception of one, you've
         testified for the defense?
Fraga:   "That would be pretty accurate."

Hora:    [About his judgement that one of the drawings indicated 
         "confusion":]   "It's a guess on your part?"
Fraga:   "A clinical hypothesis, as to the nature of it."
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:    "How many drawings of little boys whose mothers were missing
         have you analyzed in your career?"
Fraga:   [He looks at drawing from such cases every week.]  "Again, we
         call these 'projectives,' [drawings that might mean] "a whole 
         lot of things to a whole lot of different people."  
         [Psychologists would not normally attempt to interpret them 
         in court.]
Hora:    [Is that the best Fraga could do, interpreting that picture?]
Fraga:   "I think that's probably a stretch already."
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."
Hora:    [Can Fraga confirm that he's not testifying as to whether any
         of Reiser's testimony is truthful or credible?]
Fraga:   [Agreed.]
Hora:    [And he wasn't claiming the boy was influenced by anyone, had
         "good or bad memory", or was being accurate/inaccurate?]
Fraga:   [Agreed.]
DuBois:  [Objection:  That's merely because the prosecutor had barred
         all such testimony.]
Goodman: "No it's not, Mr. Du Bois.  He's saying he couldn't because 
         he hadn't interviewed Rory."
Hora:    "You don't know Rory's mental state at any time, right?"
Fraga:   [What he knew was the contents of the interview transcripts
         and written statements, that] were "pretty lacking in any
         description of emotion at all."
Hora:    "If somebody asks a leading question, does that mean they will
         give an incorrect answer?"
Fraga:   [It depends on who's asking the questions, who's answering and
         the structure of the questions.]

Hora:    [Had Fraga ever diagnosed a case of Asperger's?]
Fraga:   [Once, with a 35-year-old.]
Hora:    [But you didn't go to medical school.]
Fraga:   [When diagnoses like these are needed, it's more often clinical 
         psychologists, not doctors, who typically do them.  But there
         are doctors who are involved with such matters.]



Mo 2008-03-03:  Defence has called Hans Reiser as a witness, a move
considered highly perilous by defence lawyers:  It opens avenues of
inquiry for prosecution that are otherwise unavailable, and, in cases
like Hans's, where impressions on juries count for a great deal, a long
cross-examination can cause an anger-prone or arrogant or evasive or
merely unlikeable defendant to sink his/her own case.

DuBois:  "Directing your attention to the third of September, 2006. Did
         you have the occasion to see Nina Reiser on that day?" 
Hans:    "Yes I did.  She arrived at the house with my kids, the both 
         of them, and they came into my house.  She arrived at about 2:20."
DuBois:  "After they all got into the house, what happened then?"
Hans:    [They put together a lunch of spaghetti and macaroni-and-cheese
         for the kids, who then went downstairs to play video games,
         while he] "stayed upstairs and talked with Nina." 
DuBois:  "What did you and Nina talk about?"
Hans:    "We talked about the kids and the divorce."
DuBois:  "What did you talk about most?"
Hans:    "The divorce."  

Nina and Hans's conversation lasted about an hour, and included
discussion of some pending dental work for Rory.  Hans said he told her
he wasn't intending to go on paying the $1,000/month child support.

Hans:    "Oh, I asked her for legal custody."
DuBois:  "What did she say to that?" 
Hans:    "She said 'no'."  [Hans commented that the divorce had been
         going "disastrously".]

The conversation ended, "Nina said 'Hans, I have to go.'"  Nina called 
the kids back upstairs, said goodbye to them, went out the front door,
got in her minivan, and drove off.

DuBois:  "Did you ever see her again?"
Hans:    "No."

Hans was led through photos of his messy house, pointing out where
things are, including his two computers, one running MS-Windows and the
other Linux.  He said he'd removed the hard drive from one computer
because he expected police to seize it.  After all, "They had seized my
kids."

He said he'd gone to UC Berkeley at age 15 because high school wouldn't
let him study what he wanted.  Asked about his membership in the
computer club at Evans Hall, Hans gave a meandering answer.

DuBois:  "Do you remember what the question was?"
Hans:    "I remember what I was talking about...no, I don't."

Hans talked about other activities, including writing a Dungeons and
Dragons competitor, plus an unpublished novel, before, in 1984,
embarking on 20 years of work on what became ReiserFS.  Asked about
filesystems and Linux, Hans became distracted at points:  "Would you
repeat the question?"

Asked about the scuffle with the student who's mailbombed him with 5,000
e-mails, Hans called him a "cracker", who often interfered with other
people's work "without having any motivation to do so."  In the incident
discussed, Hans said discussion became heated, but there was no fight.

DuBois:  [Was an intellectual argument involved?]
Hans:    "It wasn't really intellectual.  We were unintellectual in our
         interaction.  We interacted like two schoolchildren, and probably 
         my interaction was inappropriate for my age at the time.  I behaved 
         more like a grade-school kid."
DuBois   [Did he play sports, growing up?]
Hans:    "Um, I, uh, around 14 I started to take wrestling."
DuBois:  "Did you ever play baseball, basketball, football, anything
         like that?"
Hans:    "I just took the usual P.E. classes that every student takes
         and played those sports, the same that every schoolkid plays."
DuBois:  [Ever hang out with friends and drink beer?]
Hans:    "I usually don't drink, so no."
DuBois:  [Movies with friends?  Double dates?]
Hans:    "Not double dates.  But I did have friends I go to movies with." 
DuBois:  [Who, for example?]
Hans:    [Cites example of former friend and Nina's lover Sean Sturgeon.]

After lunch, Hans testified that he and Nina had had sexual intercourse 
repeatedly on their two sleeping bags, which tended to be used both for
camping trips and also as comforters at home.  (This is relevant to the
DNA testimony.)

Although focussed on filesystem work, Hans said he always put the
children first, with his work suffering as he was first ejected from the
home he had with Nina and then having to fight for and lose custody of
his children.  Asked the definition of lines of code, Hans went off on a
digression about Ted Nelson of the Xanadu Project.

DuBois:  "Do you remember the question?"
Hans:    "I just remember I was answering."  [grin]
DuBois:  [Can you please limit your answers, and just stop if 
         you've forgotten the question?]

(Other digressions about coding followed, with DuBois frequently having
to rein in his client.)

Hans talked about his many trips to Russia to manage Namesys -- it
being, he said, easier to manage programmers face-to-face -- and his
dating of about 50 Russian women (potential brides) found through dating
services in St. Petersburg and Moscow, between 1993 and 1996.  One such
woman, Yelena, was with him for six months and accompanied him back to
the USA, but he eventually decided not to marry her.  

Nina he met through "a marriage agency", the last of ten women he met
there, over a "period of two or three days.  You'd go in and you pick
which women interested you and they'd have you come back another day
when they can make an appointment."  She had "a beautiful voice.  She
has the most beautiful voice of anyone I have ever met.  To this day."

They met at a cafe, where he presented a poem he'd written "about love
and having children."

DuBois:  "She still wanted to see you after that?"
Hans:    "Yes."  [They met a second time at her parents' apartment.]
DuBois:  "Did the two of you fall in love?"
Hans:    [hesitating]  "Yes.  But in retrospect, I should have waited
         until I found somebody I loved more deeply.  She said that
         she loved me."

He described Nina as having "more people skills than any lawyer in this
county", and that "Nina was a step above of all the other ladies I
dated."  [looking upset]  "Usually, women like her aren't interested in
me... now I'm wondering whether I should have understand, well uh...  I
wonder whether she was interested in me."  

Court stands adjourned until Wednesday.  There will be more direct
testimony, and then probably considerably longer cross-examination, 
and defence has more witnesses planned after that.