A judge today denied a defense motion to dismiss charges that Oakland computer science engineer Hans Reiser murdered his wife, rejecting a defense attorney's argument that Reiser didn't have the opportunity to commit the crime.

William DuBois, Hans Reiser's lawyer, said testimony by the couple's 7-year-old son, Rory, that Nina had promptly left Hans' home at 6979 Exeter Drive in Oakland after dropping off Rory and his 5-year-old sister Nio early in the afternoon of Sept. 3 "precludes Hans Reiser from committing the offense charged."

DuBois said Rory's testimony on Dec. 11, which was the first day of the preliminary hearing, refutes the prosecution's theory that blood evidence at Hans Reiser's home proves that he killed his wife on Sept. 3. DuBois also noted that Judge Conger "was not persuaded that he (Hans Reiser) killer her (Nina Reiser) in front of the children, which is what the prosecution wants the court to believe."

He said the prosecution's theory "is not supported by any evidence in the case."

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