Lawyers for Hans Reiser claim the Linux developer convicted of murdering his wife may be "mentally incompetent," an argument that, if successful, could send Reiser to a mental institution instead of prison.

In a court filing Tuesday, defense attorney William DuBois wrote Alameda County Superior Court Judge Larry Goodman "that in my carefully considered opinion, defendant Hans Reiser may be mentally incompetent as a result of a mental disorder or developmental disability."

"This is complete and total nonsense," says Reiser's prosecutor, Paul Hora. "All of a sudden he's incompetent a week before he gets sentenced."

The filing came about a week ahead of a scheduled July 9 sentencing date, in which Judge Goodman was expected to sentence the 44-year-old developer of the ReiserFS file system to a 25-to-life term for killing his wife in 2006. The filing is expected to scuttle that sentencing date.

The filing also means that Reiser does not immediately intend to lead authorities to the whereabouts of his wife's body in exchange for a reduced term – a potential deal both sides were discussing last month.

An Alameda County jury in April found Reiser guilty of first-degree murder in the disappearance of his wife, Nina Reiser. The 31-year-old woman was last seen dropping off the divorcing couple's two young children to stay with their father Hans Reiser at his Oakland hills house for the Labor Day weekend.

It is not immediately known whether the defendant, who is being housed at Santa Rita Jail in Dublin, California, is aware of the filing or whether he would challenge it. Two sources close to the case, speaking on condition of anonymity, said Reiser is seeking new counsel.

If Reiser's competency is contested, the issue could be decided by a jury. If found incompetent, Reiser would be sent to a mental institution until he regains his competency. After that, his sentencing and other post-conviction motions could resume.

During trial, Reiser claimed his wife abandoned their two kids and moved back to Russia, where the couple met in 1998 when he was overseas hiring Russian programmers for his Namesys software company. Their two children, a boy now 8 and a girl now 6, are living in Russia with Nina Reiser's mother and father.

The jury did not buy Reiser's defense.

With the latest court filing, (.pdf) the Reiser trial has come full circle.

As trial was set to begin in November, his attorneys told reporters their client was a mental genius who has rememberedthousands of pages of court records for his upcoming murder trial.

Later on, as part of what became known as the "geek defense," his lawyers decried the Linux developer in front of jurors as being so socially inept that any guilt-ridden behavior he displayed following his wife's 2006 disappearance wasn't because he committed murder. He threw away his car seat, tried to hide the car, hosed down the car's inside and engaged in counter-surveillance moves because he couldn't understand social cues, they said.

Jurors often rolled their eyes in disbelief, especially when the defendant took the stand for 11 days.

At one point during the sixth-month trial, DuBois suggested the defendant suffered from Asperger's, a mild form of autism. In closing arguments, they likened him to a duckbill platypus.

Dan Horowitz, a California criminal defense attorney who briefly was Reiser's defense attorney before trial, suggested DuBois is "unable to get his client to function in a way to allow Dubois to prepare for sentencing or other motions to get a lighter sentence."

Even though Reiser has already been convicted, the sentencing stage of a case is important, Horowitz said. Among other things, Horowitz suggested that Reiser, if he's mentally incompetent, might be incapable of assisting in negotiations to turn over the body in exchange for a lighter term, or of assisting DuBois in challenging the conviction.

"If he can get Hans Reiser to be found nuts, or if he can get Hans Reiser to be found almost nuts, he can be put in a psychological setting, instead of prison. That's better," Horowitz said.

*File illustration: Norman Quebedeau *

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