I thought that with all the negative news going on these days, I’d highlight some positive news in the field of criminal law in Massachusetts. Many of my readers are familiar with the story of how a federal judge in Boston ruled in 2007 that the FBI, over forty years ago, framed four men for a notorious 1965 gangland murder, which none of them committed. The case came to be known as the “Teddy Deegan Murder Case”, after the victim of that March 1965 slaying. That 2007 court ruling, by United States District Court judge Nancy Gertner, included a damages award that ordered the U.S. government to pay a total of $101.7 million to the four men wrongfully convicted, two of whom are still alive, and two who have passed away. The two surviving former prisoners are Peter J. Limone and Joseph Salvati. The two men who have passed away are Henry Tameleo and Louis Greco, who died while still in prison. Greco is survived by his wife, Roberta Werner of Boynton Beach, Florida, who is the executrix of his estate.

In 2004, Massachusetts passed a state statute that allows for a maximum payment of $500,000 to a person wrongfully convicted by the Commonwealth. While this law does not prevent such individuals from seeking or collecting state damages even if they have been awarded damages in federal court, the attorney for Mrs. Greco has entered into an agreement with Massachusetts Attorney General Martha Coakley that she will repay the state the full $500,000 if and when the federal government ever pays at least that much of the judgment ordered by judge Gertner. (The federal government has not yet paid the judgments, as the government has appealed judge Gertner’s ruling.)

Massachusetts is among approximately 24 states that have passed laws compensating the wrongfully convicted, and since the Massachusetts law was passed in 2004, approximately 25 people have filed for this type of compensation with the state attorney general’s office. But what makes this particular payment unusual, is that this is the first time the state of Massachusetts has ever made such a payment to the estate of someone wrongfully convicted (i.e., after that person has died,) rather than to the wrongfully convicted person himself. It is thought that given the severity of this case, the harm done to the families of these men, and the age of Louis Greco’s widow, Attorney General Coakley’s office did not object to the state making this payment even in the face of the federal award. So far, the family of Henry Tameleo has not filed a claim with the state Attorney General’ office.

This case was made famous, in large part due to the investigative journalism and hard work of Dan Rea, a longtime reporter for WBZ-TV – Boston (CBS), who brought to the public eye the deliberate framing of these four men, and the resulting cover-up by FBI agents in the 1960’s. The story was covered nationally, including CBS’ 60 Minutes, Ted Koppel’s Nightline, and national press. Rea, not coincidentally, is a (non-practicing) lawyer in Massachusetts.

While horribly and irreversibly delayed, in the end, perhaps, justice wasn’t denied. Let’s hope so.

The charges against Dr. Stryker surround what police say was an elaborate plot by Stryker to escape the $15 million civil judgment that Dr. Linda Goudey’s family previously obtained against him, in their wrongful death suit brought in Middlesex Superior Court. Police investigators say that Stryker hatched a twisted scheme to find and pay someone to come forward and claim that he (the new witness) saw Dr. Goudey with another man the evening of her murder, not with Timothy Stryker as has been reported. Investigators say that Stryker attempted to use this man’s sworn but false affidavit to re-open the civil case that Dr. Goudey’s family won against him, hoping to secure a new trial, and using the “new” witness’ testimony, void the resulting $15 million judgment the court had ordered him to pay to her family. To secure such a witness, Stryker allegedly solicited his handyman and longtime patient to help assemble the plan, allegedly promising him $100,000 in cash and a ready supply of Oxycontin, a powerful painkiller often used to treat cancer patients.

This handyman, Richard Chambers, allegedly reached out to a friend in Derry, New Hampshire, who then contacted a player from his (the friend’s) hockey league, named Craig Pizzano. Prosecutors have alleged that Pizzano was ultimately sought out to play the role of the “new witness” because he had recently lost his job and needed some “easy money”. Via Chambers, Stryker allegedly offered to pay Pizzano another $100,000 if he testified in court (at the new civil trial Stryker hoped for) that he Goudey with another man the night of her murder, and not with Stryker. Carefully coached in advance complete with maps and diagrams of the crime scene, Pizzano appeared in 2006 with a sworn statement that Stryker’s lawyer then used to try and re-open the civil case that Dr. Goudey’s family previously won against him. Soon after Stryker’s lawyer admitted that sworn statement to the court, Pizzano testified before a grand jury that he had seen Dr. Goudey in her car the night of the murder, with a man who resembled Boomer Esiason, a retired NFL quarterback who has blond hair, and not with Stryker, who has brown hair.

However, police investigators, suspicious of the ‘new witness’, uncovered various phone records, medical records and bank statements connecting Stryker, Chambers and Pizzano. When authorities approached Pizzano with this evidence, he broke down and revealed the elaborate plot. In exchange for his testimony against Stryker and Chambers, prosecutors agreed not to charge Pizzano. Not so lucky Stryker, however: He was charged with multiple counts of misleading a police officer, perjury, subornation of perjury, conspiracy to commit perjury, bribing a witness, and was held on $100.000 bail. Chambers was also charged with similar counts and was ordered held on $50,000 bail. Both pleaded not guilty.

Will these new developments and criminal charges against Stryker lead to what Linda Goudey’s family hopes are long past due murder charges against him? That’s not so easy a leap. If convicted of these charges, all such convictions would arguably demonstrate, is that Timothy Stryker is a dishonest person who concocted lies to avoid a $15 million civil judgment against him. Convictions on the charges he now faces, if such convictions occur, would not necessarily constitute admissible evidence that he committed this murder. However, there is no statute of limitation on murder in Massachusetts, so time is on the police and prosecutors’’ side in this case.

Stay tuned.

Suspicion immediately focused on her boyfriend, Dr. Timothy Stryker, and while police and prosecutors never obtained enough information to formally charge Stryker with Goudey’s murder, he has always remained a suspect. Frustrated, and perhaps inspired by the family of Ron Goldman, one of the murder victims in the O.J. Simpson trial, Goudey’s family, led by her mother, Marguerite Rafuse of Concord, Massachusetts, filed a “wrongful death” suit against Stryker, seeking to hold him civilly liable for the death of Linda Goudey. If you click on the wrongful death link immediately above, you’ll be taken to that page of my web site, where it will explain more about that type of suit. As you can see, a wrongful death suit seeks to hold a person civilly liable for someone’s death, and seeks damages for the lost companionship, society, and/or support of that person. In murder cases like Ron Goldman's and Linda Goudey's, it can afford the families "another way" to hold a suspect who has either been criminally charged and found not guilty, or never criminally charged, civilly responsible for the murder.

Why would a family like Ron Goldman’s or Linda Goudey’s family, file a civil suit, when there is either insufficient evidence to charge a suspect criminally, such as with Dr. Stryker, or when a suspect has been charged, but found not guilty, as with O.J. Simpson? Because of two reasons: 1) Most importantly, the standard of evidence required for a plaintiff to prevail (win) in a civil case is much lower than the standard required to convict in a criminal case. In a criminal case, the state must prove their case – i.e., that the defendant is guilty of all the elements of the crimes charged – “beyond a reasonable doubt”. That is the highest standard of proof that exists in our judicial system, and for good reason: If someone is to be found guilty of a crime, perhaps a serious one where a criminal record and/or imprisonment could result, the standard of proof should be very high.

However, in a civil case, the evidentiary standard is much lower: There, the plaintiff need only prove their case by “clear and convincing” evidence, or in some cases, by “a preponderance of the evidence”. Both of these evidentiary standards are much easier for a civil plaintiff to reach, than is required for a prosecutor to reach in a criminal case. 2) Also importantly, monetary (financial) damages can be awarded against a defendant who has been found liable (which is not the same as “guilty”) in a civil case. In the Ron Goldman case, that family was awarded a multi-million dollar civil verdict against O.J. Simpson, holding Simpson liable to pay Goldman’s family millions of dollars in damages for the death of Ron Goldman. (The downside to that particular story is that Goldman’s family has seen little to none of that money. Simpson has demonstrated to the court that issued the judgment that he doesn’t have the money to pay the judgment, and in legal terms a person like this is known as “judgment-proof”. (In non-legal terms, you can’t get money out of a stone.)

Linda Goudey’s family won their wrongful death suit against Timothy Stryker, to the tune of $15 million. I’ll detail what allegedly happened next, and what Stryker has been charged with, in my next post.

A major legislative effort has come to a head up on Beacon Hill, which would reform the current child rape statute by increasing the mandatory minimum sentence for some sex offenses against children, and it is heading to Gov. Deval Patrick's desk. Some people are happy about this development, and some not so happy. Most people would think that everyone would support tougher laws against child sex offenders, wouldn’t they? So why wouldn’t someone be in favor of this? Well, as with most answers, the devil is always in the details, and if you look closely, you might see some cause for concern on the issue of mandatory minimum sentences (which I’ve blogged about previously).

The current effort began to gain traction in June, when the Massachusetts House passed legislation modeled after Florida’s “Jessica’s Law.” That law in Florida provides for a mandatory minimum 25-year sentence for child rape in that state, and many advocates of tougher child rape laws here wanted just such mandatory minimum sentences. And predictably, it has been that issue of mandatory minimum sentences that has caused the most debate in this effort.

Child protection advocates and those pushing for stronger, tougher child rape laws argue strongly for the mandatory minimum sentences, in which a judge, following a guilty finding on certain charges, has no discretion in sentencing: He or she must impose the mandatory minimum sentence, in state prison. (It is the state prisons in Massachusetts, such as Walpole or Cedar Junction State Prison, which house some of the worst, most violent offenders in Massachusetts.) If at this point in your reading this post, you’re strongly in favor of this change and wondering why anyone in his right mind would oppose this measure, read on: Many members of the criminal defense bar in Massachusetts, point out that mandatory minimum sentences pose the potential for even greater injustices. As an example, many criminal defense attorneys cite the possibility of what could happen under this bill to a 17 year-old high school student who has sex with his 15 year-old girlfriend. Were that to happen to your child, would you want your son or daughter to face a mandatory state prison sentence, with no sentencing discretion on the part of the judge? The potential problems now become clearer, don’t they?

On Tuesday July 15, the state Senate approved the proposed law, and it’s now on its way to Governor Patrick’s desk. The final version would create a new mandatory-minimum sentence of 20 years in prison for repeat offenders who are convicted of raping a child with force. Sentences would also be increased for the rape of a child involving a weapon and for aggravated indecent assault and battery of a child. The proposed law would also expand the definition of aggravated rape to include providing drugs or alcohol or a person misusing a position of trust, such as a teacher, a coach or a member of the clergy.

The measure has the backing of Attorney General Martha Coakley and Cape and Islands District Attorney Michael O'Keefe, the president of the Massachusetts District Attorneys Association. Senate Republicans also supported the final version of the legislation, even though they ideally wanted mandatory-minimum sentences modeled on Jessica's Law, which imposes a 25-year sentence for child rape in the state of Florida. They had to drop their demands on that provision.

This is an emotional issue – and understandably so. Child sex abuse is an extremely serious social and legal problem. It’s hard to talk calmly and reasonably about differing positions on this difficult issue without charged feelings erupting. But deal with this we must, and in the most responsible, balanced way we can.

Everyone wants child rapists and sex offenders, especially repeat sex offenders, to be dealt with swiftly and severely. As a Massachusetts sex offense attorney, I believe the best way to achieve this goal, is to do it in a manner that doesn’t catch otherwise “innocent” people in its wake (think of the high school lovers example,) and that assures that less-serious offenders (non-violent, non-repeat offenders) are rehabilitated, rather than mandatorily incarcerated for minimum state prison sentences.

But to many advocates of the present reform effort, a not-so-funny thing happened on the way to a ‘better’ system: Either too many people convicted of relatively “minor” offenses ended up with a CORI record, damaging their chances for employment and many other essential needs, or in the view of the opposing factions, the law was not strong enough to begin with. For some time now, both sides in the debate have squared off, but the issue appears to be coming to a head in the legislature.

As a columnist in the Boston Globe wrote recently, one problem complicating reform efforts, is that different people – especially employers – have different needs for this kind of information. Some need very extensive, detailed information, such as, for example, public safety employers, financial institutions or child-care providers. Other types of employers don’t typically need such extensive, detailed records. So what should any new law require – how “far” should it go in providing information about a person’s criminal past? Law-and-order types want a bill that mandates that each person convicted of any crime at all, must carry a detailed record, accessible to as wide an audience as possible. Other people feel that someone who has been found guilty of a relatively minor offense, should not have to carry a “Scarlet Letter” for that offense, potentially foreclosing a number of opportunities for them in the future.

As a Massachusetts criminal defense attorney, my opinion is that what is needed, as always in important legal issues such as this, is balance. Let’s hope that whatever comes out as a final product in the legislature is as balanced an effort at reform, as possible.

Predictably, opinions run strong on both sides of the question. Many people, among them prominent medical and health authorities, believe that marijuana use is less harmful and less addictive than is alcohol use, or cigarette smoking. CSMP argues that each year in Massachusetts, over 7,500 people are arrested for a crime that they contend is harmless and victimless. In addition, supporters of the measure argue that under existing law, enormous police and prosecutorial resources are directed each year in Massachusetts to prosecute this crime – to the tune of $24 million in state and local money annually. Under Massachusetts law presently, the penalty for marijuana possession is a maximum of six months in jail and a fine of up to $500.00. While most persons charged with this crime receive a minimal sentence or probation, offenders do receive a criminal record, and that record becomes part of the Criminal Offender Records Information (CORI) system. CORI records are available to lenders, housing agencies, and employers, who can use this information to deny an applicant credit or housing. Following a conviction for this offense, college and graduate students can be denied student loans or have those loans.

It is important to note that the proposed measure would not ”legalize” possession of marijuana –it would decriminalize possession of one ounce or less (an amount which is presumed to be for personal use only, and not for distribution.) The proposed law would replace the current criminal penalties, and substitute in its place a civil system of fines, similar to vehicular speeding fines. Each offense would incur a fine of $100.00. In support of its position, CSMP argues that, in fact, its ballot measure is the more moderate of several marijuana reform efforts currently being debated. MassCann, which is the sate’s chapter of the National Organization for Reform of Marijuana Laws (NORML,) endorses CSMP’s goal, but believes even broader, more substantive changes in this area of drug law should be made. Specifically, MassCann believes that marijuana should not just be decriminalized, but be simply legalized and taxed appropriately, just as are alcohol and cigarettes.

As a Boston criminal defense attorney, I must say I see an enormous amount of police and prosecutorial resources currently directed toward arresting and prosecuting people for this crime. A credible argument can be made that these significant efforts divert police officers and prosecutors away from protecting people from “real” criminals. The Massachusetts District Attorneys Association has formally opposed the ballot initiative, arguing that decriminalization of marijuana will increase its use among young people, and citing federal drug control arguments that car accidents are much more likely when a driver has used pot. As a Massachusetts drug arrest defense lawyer, I can see both sides of the argument. However, this ballot measure doesn’t seek to decriminalize marijuana use while driving – that act can and would remain a criminal offense – just as driving under the influence of alcohol or other drugs is a crime. The measure seeks only to decriminalize possession of a very small amount of marijuana – an ounce or less – while not operating a motor vehicle - and impose in its place a $100.00 civil fine. When weighing the arguments to come in the months ahead, this fact should not be forgotten.

One thing you can count on for sure: A barrage of television and radio commercials, and large newsprint ads, are headed your way in the fall months. Barack Obama and John McCain aren’t the only ones we’ll be hearing from in late September and October.

My position, again, as a Boston Massachusetts drug offense attorney, is this: Let reason and rationale be your guide on this forthcoming issue, not emotion or fear. In any argument, it is the facts that are almost always the most important criteria, not hyperbole.

But let’s be clear: There are no “winners” here. Two lives were snuffed out cruelly, with the same frigid touch that enveloped the outside of their house that cold January 2006 day. The survivors’ lives have been torn apart forever, never to be the same again. And once again, we have been shown in garish detail how unknowable the human mind (or heart) is: What it is that enables human beings, who otherwise give off not the slightest hint of mental illness or evil, to commit such acts with seemingly no remorse. It is equally horrific – and shameful – to have witnessed Neil Entwistle’s mother, Yvonne Entwistle – stand before a bank of cameras and microphones, and publicly accuse Rachel Entwistle of “murdering” her granddaughter, despite more evidence convicting her son that any prosecutor could ever dream of. How grossly egotistical, and pathetic. But we witnessed the same in the Eddie O’Brien murder case here a few years back, when that defendant ’s father, following the guilty verdicts against his son, was literally dragged out of the courtroom by court officers, screaming that his son had been framed. “Framed”, with his own fingerprints left in blood all over the walls of the murder victim, and his DNA on the knife.

But the “next” heinous case will soon be here, too soon for most of us. And when that happens, whoever is accused of that crime should receive the strongest defense possible, as did Neil Entwistle here. That is our judicial system. It is the best we have. And for those who argue otherwise, they should ponder these questions first: Would you want anything less for yourself? Would you rather have a system where you are presumed guilty until proven innocent? If you couldn’t afford a high-priced lawyer, would you rather be told, “tough luck”?

Neil Entwistle had the benefit of that system, and he will now be punished for life, never again to walk a free man. No, there are no “winners” and “losers” here – only the lost and the dead. But one thing that must never be lost, is the system of justice that we saw work so well in this sad, memorable case.

Since the close of the trial, several people have commented to me about the fact that Entwistle didn’t take the witness stand, and what that may have said about him, his guilt or his innocence. In responding to such comments, I hasten to stress that under our system of criminal justice, no defendant who is charged with a crime, of any kind, is required to testify in a prosecution against him – and no negative inferences should be drawn from this. To such people who think he “should have” testified, I will caution: You yourself could be one day charged with a crime, perhaps a serious one. Would you want the right to refuse to potentially be a witness against yourself, denied you? I am speaking here more to the systemic protection afforded defendants in our system. In this particular case, personally and professionally, I feel confident that Neil Entwistle was guilty of the crimes charged here. But if I were a member of this jury, I would have reached this conclusion based upon the summation of all the evidence submitted at trial - -not on the fact that he refused to testify. Further, I trust this jury did the same, and in fact, at least one alternate juror has publicly confirmed this.

Emotions ran high in this case, inside and outside the trial. Throughout the trial, I have served as a legal analyst and commentator for not only Court TV/TruTV, but also for Boston-area newspapers and radio stations (in addition to this blog.) In the process, my opinions and my comments became, of course, public and quite visible. Some of my comments spoke to my opinion of the overwhelming nature of the evidence against Entwistle, and my opinion of how, on many occasions prior to his extradition to and arrest in Massachusetts, Entwistle acted in effect as his own worst enemy. One member of Entwistle’s defense team sought me out to privately complain of my recorded observations, and to protest those observations. While this individual had every right to do so, I stand by my broadcast and published comments. My purpose as an attorney and legal analyst is to provide the most objective commentary I can, regarding the facts and evidence made available. I’m not going to tailor my comments to suit any one person or party in particular.

As to what follows from here: In Massachusetts, an appeal is automatic following a conviction of murder in the first degree. This is so due to the severity of the mandatory sentence: Life in state prison without parole. So far, the defense team has indicated that it plans to base their appeal on issues related to the Hopkinton Police Department’s entry into the Entwistle residence in January 2006 without a search warrant, and their retrieval of items of evidence as part of that entry. Legally, these are known as Fourth Amendment “search and seizure” issues, as well as possible privacy issues. While admirable from the standpoint of its zealousness and appellate advocacy, my legal opinion of such an appeal is that will fail. Previously, (approximately a year ago,) the defense team raised these issues in what is called a “Motion To Suppress”. This is a motion the defense brings in a criminal case, to exclude from evidence in the trial, all or certain items of evidence that police may have seized or obtained as part of their arrest and/or investigation of the crime. The hearing that a judge presides over following such a motion is called a “suppression hearing.” At Entwistle’s suppression hearing, at least two to three police officers who entered the Entwistle home testified as to the circumstances surrounding their entry into the home, and all procedures related to that entry and the collection of evidence obtained therefrom. The matter was vigorously argued, and after careful consideration of all legal, procedural and constitutional issues, the judge denied the defense’s Motion(s) To Suppress. Legally speaking, the Police Department’s entry into the Entwistle home was justified by what are known as “exigent circumstances” and a related legal concept, “probable cause.” Due to the extensive legal arguments already made surrounding this issue and the legal rulings made following those arguments, it is not at all likely that an appellate court (or the Supreme Judicial Court,) would rule otherwise. Neil Entwistle is not at all likely to live a free and happy life on this earth, ever again. Then again, neither will Rachel and Lillian Entwistle.

My apologies for not publishing this post yesterday, as I intended to. Some final thoughts on the case, will follow later today.

The defense finally showed their cards on Monday, with Elliot Weinstein closing the defense’s case with a not-surprising defense theory that “Rachel Did It”: That a depressed woman killed her baby, then herself. While advancing this defense at the last minute, in their closing arguments before the jury, was technically objectionable by the prosecution, it wasn’t that surprising. They had no other “plausible” theory to advance – not that this theory qualifies as plausible.

What did surprise me was that the defense chose not to call any expert witnesses in the field of depression and suicide in women. I had thought there was a good chance that they might see some benefit in allowing the jury to hear from authoritative experts in this field speak about this subject, as the defense had already hinted that Rachel might have been responsible for these deaths last week, in cross examination by defense attorney Stephanie Page. Apparently, in the end, they perceived too much downside risk in exposing such a witness to cross examination by the prosecution.

Before I offer my opinion of this defense and the procedural way it was advanced, let me say that these two attorneys are duty-bound to not only represent their client, but to do so zealously. That means they must advance every possible theory of defense, and employ every strategy that is legally and ethically allowable to them, in the defense of their client. It is not just their job, it is their professional and ethical duty. Since the defense closed yesterday by advancing this theory, many people have expressed to me how "disgusted" they are that an attorney would offer such an unlikely defense, in the face of the overwhelming evidence in this case implicating the defendant. I understand their feelings, but only because I know that they don’t understand: They don’t understand that the defense must do all that they are legally and ethically allowed to do, to defend their client. This is not “sleazy lawyering.” It’s zealous advocacy, and it’s expected of a good criminal defense lawyer.

That having been said, it’s my opinion that this gambit by the defense will ultimately do more harm to their case, than good. This is so principally because I believe it will likely anger and insult many members of this jury. These are human beings. They have seen the gruesome evidence depicting the murder of a young mother and her infant. They know where the evidence points. In the courtroom, I personally saw more than one jury member observe one of Rachel’s family members slump sideward with grief into another family member, sitting beside her, when Weinstein advanced this claim. The grief and hurt from the rest of Rachel’s family members was palpable as the defense continued with this theory. I think this defense theory will “add insult to injury”, and I don’t believe it will help. The reality is that this defense team had nowhere else to go.

In my opinion, the best that Neil Entwistle can hope for from this jury, is a verdict of murder in the second degree, vs. first degree murder. The reason: In Massachusetts, a verdict of murder in the first degree carries a mandatory sentence of life in state prison, with no possibility of parole. If the jury here returned this verdict, the judge here has no discretion in sentencing: She is required to sentence Entwistle to a life term in state prison, with no possibility of parole. Alternatively, if the jury returned a verdict of second degree murder, that does provide the judge with wide discretion in sentencing, and whatever her sentence might be – from the minimum to the maximum – the sentence carries with it the possibility of parole. That is a major difference.

From the commencement of this trial to closing arguments, Entwistle’s defense team had precious little material to work with here, and they did they hard job of criminal defense lawyering in this situation. But I don’t believe it’s going to help.

And in a relatively short amount of time, we will know.

Aside from this type of expert(s), which would largely comprise the defense’s case-in-chief, I would expect it also possible -- assuming they feel confident that the answers they seek would support their case -- that the defense may call to the stand one or more of Rachel’s friends, associates or family members, to testify about any marital problems that Rachel may have confided in them, or about any stresses with raising a child that Rachel may have spoken of, or about their perceptions of her state of mental health and whether she seemed either not her normal self, or depressed. (Interestingly, one item of testimony I noted from the medical examiner, was Rachel’s weight: 159lbs. That is rather high for a woman of her size, and although it’s not a certainty, I wouldn’t be surprised if the defense suggests, aside from other possible reasons, that Rachel may have also been depressed due to weight gain from her pregnancy, that she was unable to lose. This all speaks to the issue of depression or post-partum depression - obvious or latent - and depression is what the defense is likely to suggest motivated Rachel to kill her baby and herself. Raising the issue of Rachel’s post-partum weight is no guarantee, but it wouldn’t surprise me.)

As to the issue of who conducted internet searches on “How To Kill With A Knife” and “How To Commit Suicide”, the defense will probably suggest that, between Neil and Rachel, it was Rachel who conducted those internet searches, because she was suicidally depressed. However, doing so will complicate that theory at the very same time, as the victims died by gunshot. Also, the computer on which those searches were conducted was password-protected, and there has been no evidence introduced yet that Rachel had or knew that password.

Notwithstanding this potential problem, if the defense does call the type of expert witness(es) I’ve suggested as possible on the subject of female depression and suicide, when direct examining such witnesses, I would expect the defense will raise at least several of the following types of questions and inferences with such an expert(s):

• “Is it possible, if Rachel had found out that her husband was seeking other women for sex on the internet, that she might have become so depressed or despondent as to take her own life?”
• “Is it possible that Rachel, if she was facing financial stresses, might have become depressed enough to consider suicide?”
• “Is it uncommon for recently-married women who are experiencing no sexual interest from their husbands to become depressed?”
• “What is the general incidence of suicidal depression among the female population in the United States? How common is it? How uncommon?”
• “What is the incidence of attempted suicide among women in the United States?”
• “What is the incidence of completed suicide of women in the United States?”
• “What, statistically, is the most common method of either attempted or completed suicide among women in the United States?”
• “If suicide by gun is the most common method of choice among women, how much more prevalent is it than other methods? Greatly prevalent? Slightly prevalent?”
• “What is the incidence of post-partum depression among the female population?”
• “Of the statistical incidence of post-partum depression in the United States, what percentage of patients is severe enough to consider suicide?”
• “What percentage of new mothers who attempt or commit suicide, also kill one or more of their children?”
• “Why would a depressed woman wish to kill her baby as well as kill herself?”

Of course, if this line of questioning is pursued, the defense will ask these questions knowing their witness’ answers will support their argument that Rachel committed murder-suicide. The defense need not prove this was the case, only that it is a reasonable possibility.

My prediction, if such a line of questioning is pursued by the defense: It will be ineffective. Such expert testimony, if it occurs, may make for good academic reading or interesting conversation, but it isn’t going to be persuasive to this jury, when the balance of all the other evidence and testimony in this trial is weighed in its totality. The balance of that other evidence and testimony, is simply too damning to Neil Entwistle. I could be wrong, but unless there are some major and unexpected defense surprises, I don’t see possible testimony on the statistics of suicide in women, or murder-suicide of mothers and their children, swaying this jury.

More on likely defense strategies later today or tomorrow.

Highlighting Manning’s testimony, were over two hours of recorded phone conversations he had with Entwistle, after Entwistle had returned to England. The conversations revealed a hesitating, stammering man who, despite claiming he had no involvement with the deaths of his wife and daughter, nonetheless offered no clear answers for his claimed behavior, following what he says was the discovery of the bodies of his wife and daughter at approximately 11:00 AM January 20 2006. The recordings of Entwistle’s voice convey no grief, no shock, no crying, and little to no explanation for why he fled the scene, and the United States, in the fashion he did following the murders. His overall demeanor is anything but what a reasonable person would expect from a man who has not only lost his wife and daughter, but also saw their murdered, lifeless bodies in front of him. In sum, it’s my opinion that this jury’s first exposure to the voice and cadence of this defendant has caused even more harm to the defense’s case. I’ve said before that throughout this whole affair, Neil Entwistle’s own mouth has been one of his worst enemies, and these conversations verify that.

Soon, the defense will open its case – perhaps late Monday. And at this point, it seems obvious what their defense will be: Not that some unidentified, unknown assailant walked in and killed Rachel and Lillian Entwistle without apparent motive, and not that the owner of the murder weapon, Joseph Matterazzo, had any involvement with the murder, either. Instead, it seems clear that the defense’s case-in-chief will be that a depressed Rachel Entwistle killed her baby, then took her own life.

Going forward, I expect the defense will raise the following theories:

• That Rachel was depressed due to her husband’s infidelity or internet sex searching.
• That she was depressed due to leaving her friends in England.
• That she was suffering from post-partum depression, following the birth of Lillian.
• That she was depressed due to financial difficulties, including her student loan debts.

I expect the defense will call relatively few witnesses, concentrating on each of them at considerable length. I would expect their witnesses to include at least one (if not more) experts in the field of female suicide and depression. Those experts could either be psychologists or psychiatrists, they could be researchers or clinicians, but to have maximum impact with the jury, they would need to be specialists in the field of depression and suicidal ideation in women (vs. in men or both genders.) Whether or not these medical experts carry a specialty or sub-specialty designation in female depression and suicide, for maximum credibility they should be either practicing clinicians in the field of treating women who suffer from depression and suicidal ideation; or who teach in this field at a respected university or mental health organization; or who have published peer-reviewed articles in respected medical, psychiatric or psychology journals.

I’ll have more on other possible defense witnesses and strategies tomorrow.

Instead, what killed Rachel was a bullet wound entering just behind her forehead hairline, penetrating almost straight down into her brain, being fired from a point above her head. The bullet shattered and fragments lodged in her brain, not exiting the skull. However, the entry wound was so inconspicuous, that it was not discovered until autopsy. (This was due to the small (.22) caliber of the bullet.) The angle of the bullet entry wound to Rachel’s head, made clear in Dr. Zane’s mind that her death was not the result of anything but a homicide. Notwithstanding, Entwistle’s defense team has to come up with something here to counter this devastating testimony. They know they have little to no hope of pinning this crime on Joseph Matterazzo, Rachel’s stepfather and the owner of the murder weapon, not only because of a lack of any motive, but a lack of any opportunity: Several independent witnesses have corroborated Matterazzo’s physical whereabouts for almost every minute of the day of the murders – and he was nowhere near 6 Cubs Path in Hopkinton. The defense has neither yet identified any other possible suspect, who would have had either the means, motive or opportunity to commit these murders

That leaves the defense with essentially only one other option if they wish to have even the slightest hope of raising reasonable doubt in the minds of this jury: Suggest that Rachel murdered her own baby, then committed suicide. That’s exactly what defense attorney Stephanie Page did today, littering Dr. Zane with questions designed to bring out that he “knew nothing” about Rachel Entwistle’s personal life, and suggesting that she may have been depressed after leaving her friends in England, and, quoting from suicide studies, coaxing agreement from him that, statistically, many women commit suicide by gun. Notwithstanding the litany of suggestions she advanced on cross-examination, this medical examiner would not yield in his medical opinion: These deaths were the result of a homicide, not suicide. Seemingly, it was the only road the defense could go down, but it was low. In the process of this line of cross-examination, it unavoidably demeaned the reputation of this deceased woman, and further deepened the tragedy surrounding this crime. Surely, several members of the jury felt this notion, and as a defense attorney, I cannot imagine that it helped their case.

I would most certainly not have wanted to be the one advancing this theory, and this line of questioning. I am not saying it was unprofessional, simply that it was unavoidably unseemly, and I cannot imagine anyone in that courtroom, other than Neil Entwistle, appreciating it. I can only imagine the conversation that must have taken place between Elliot Weinstein and Stephanie Page, over planning for who between the two of them was going to get up and advance this line of questioning. I doubt it was very pleasant, and I'm 99% sure that it was Ms. Page who was ultimately awarded the role, due to the fact that she is a woman, and might be perceived by the jury with a greater degree of receptiveness than Mr. Weinstein, in suggesting that many women suffer from depression and some commit suicide.

Again, these two attorneys have precious little to work with here in terms of evidence available to raise reasonable doubt, and they are doing the hard, often unpleasant work of a good defense attorney. But as I’ve said before, I don’t envy either of them in this case, at all.

I think the end result of today’s cross-examination of the medical examiner ultimately caused more harm than good to their case. Then again, as the line from a song reads, “When you’ve got nothing, you’ve got nothing to lose.”

Next, the prosecution has gone to great lengths in examining State Police forensic investigators, in establishing that not only was Neil Entwistle’s palm print found on the grip of the murder weapon, but that Rachel’s blood and DNA were found on and inside the muzzle of the gun. Also, you’ll notice that the prosecution spent a great deal of time examining State Police forensic investigators as to the exact POSITIONING of Rachel and Lillian’s bodies: Rachel lying on her left side, her right arm draped over Lillian. Fabbri’s direct examination made clear there were no signs whatsoever of a struggle, at all. Purpose: To instill in the minds of the jury that whoever killed Rachel and Lillian, must have been a person EXTREMELY FAMILIAR TO RACHEL, and in whom she perceived no threat to her safety. Otherwise, had the killer been someone Rachel would not have expected in her bedroom, Rachel would have doubtless attempted to either flee the room or defend herself. The point: Either the killer was someone EXTREMELY familiar to Rachel, and in whom she perceived no threat to her safety – or a total stranger tiptoed into that bedroom, with no apparent motive, and, before Rachel even had a chance to open her eyes, shot her in the head and Lillian in the chest – then quietly left. Making such an implausible scenario even less believable, forensic testimony on Friday made clear that the murder weapon was fired at a distance of at most 18 inches from Rachel’s head. Whoever killed her, was not firing from behind a wall or crouched hidden somewhere in the room. He was right next to Rachel – exactly the place you’d expect to find an otherwise “loving” husband.

From a defense attorney's perspective, it's going to take a miracle to surmount the prosecution's testimony offered so far. For balance, I should add that it may well be that Entwistle's defense team has some unexploded evidentiary bombshell in their files, which they plan to detonate at the "right" time. If not, I don't envy them.

Note to Neil Weinstein and Stephanie Page: Have you put in for hardship pay?

Well, in keeping with the pace of developments in the courtroom thus far, today’s events didn’t help Neil Entwistle much, either. Before I touch on those, however, I want to re-visit the closing of my June 10 2008 post, regarding the defense strategy employed by Entwistle’s attorneys. I stand by my comment that I would have strategized this defense differently, and advanced an insanity defense, rather than a straightforward claim of innocence and a strategy of raising reasonable doubt in the minds of the jury. For context, however, I should have added that an attorney can only advance a specific defense with the consent of the client: If a client instructs his attorney to advance a defense of straight innocence to a charge, and not another type of defense, then the attorney is obligated to advance that defense. Therefore, the defense advanced by Entwistle’s attorneys may well have been the last one they would have chosen, and are only doing so due to instructions from their client. As Mr. Weinstein and Ms. Page are experienced and very capable criminal defense attorneys, this has long been my suspicion.

Back to today, from continuing testimony it appears that Neil Entwistle may indeed harbor two different personalities: One of a loving and devoted husband, and a caring and doting father – and another of a twisted, narcissistic, murderous killer. Which one is the truth? A hint may have peered through today when the jury was shown videotape from state police investigators of the murder scene. The tape, visible only to the jury, the judge, the lawyers and the defendant, was said to exhibit Rachel’s dead body, lying on her left side, her right arm cradling her dead baby. Classical music still playing in the baby’s room was said to have also been heard on the tape. Watching from his perspective at the defense table, Entwistle brought his hand to his mouth, and appeared, in the opinion of several observers present, to be restraining a smile or a laughing-type expression. Upon learning that several media were reporting those perceived reactions of their client, Entwistle’s attorneys took the media to task, urging them to avoid resorting to “cheap shots” at their client. They insisted their client is a grief-stricken man, robbed of his wife and daughter, and that he was reacting from that grief. In responding to this reporting, his attorneys are doing their job, even if it is outside the courtroom.

It is true we all react differently to grief. But I’ve never seen someone react to seeing images of their murdered or dead loved ones, with anything other than unmistakable pain. Several jurors must have witnessed Entwistle’s questionable reaction to this video. Things just seem to keep getting worse for this defendant. And his attorneys.

Today’s proceedings will resume with continued testimony from the state forensic evidence specialist, to testify as to blood evidence gathered at the scene.

It’s also Friday the 13th. And I don’t think it’s going to be a lucky day for Neil Entwistle.

In just one day today, the jury heard testimony from several different witnesses, which in sum paints a portrait of a man exhibiting consciousness of guilt, and displaying behavior that is consistent with a person running from a criminal act. Among the witnesses today: From a Citizens Bank employee: Testimony of how Neil Entwistle successfully withdrew $400 from one ATM after the murders occurred, then made several other attempts to obtain more cash withdrawals, only to be denied. From British Airways representatives: Testimony of Entwistle’s purchase of one-way tickets to England, with no luggage in tow. From Rachel Entwistle’s friend Joanna Gately: Testimony that it was her opinion that it was Neil who wanted to purchase a BMW SUV, and not Rachel (Neil and Rachel had asked Rachel’s mother Priscilla and stepfather Joe Matterazzo to co-sign a loan for them to buy a BMW SUV; Priscilla and Joe had declined the request.). Joanna Gately also testified today of how Rachel failed to meet Gately and her sister at Rachel’s house in Hopkinton the day after the murder on Jan. 21 2006, and of how Gately had made the first call to the Hopkinton Police Department for a wellness check, and how she and her sister Maureen slept in their car overnight in the Entwistle’s driveway, waiting for Rachel to return, after the Hopkinton Police made that first check and found nothing unusual inside the home. Gately also testified to how, the next day, a neighbor opened the Entwistle’s garage door with the key code, and Joanna Gately walked through the house herself, actually walking by the bed that Rachel and Lillian’s bodies were later found in, underneath a comforter, unaware of what the prosecution claims lay under the covers of that bed.

Given that the whereabouts of Rachel’s stepfather, Joe Matterazzo, on the day of the murder, have been accounted for and corroborated by several witnesses, exactly who else does Weinstein plan to allege committed these murders? (The only other person who had access to this gun was Joe Matterazzo, who owned it and stored it at his Carver home under lock and key.) As I said, unless Weinstein had some kind of unexploded evidentiary bombshell in his files, I don’t relish his job here. If he advances some kind of theory that Rachel killed her baby and then committed suicide, I think he’d do his client (and possibly himself) far more harm than good. Such a strategy smacks of desperation, cowardice, and smearing the reputation of this victim and her dead infant. Given the evidence in this case, at this stage I’m thinking that Entwistle’s attorneys should have planned an insanity defense. I’m sure they didn’t because they’re relying on the circumstantial nature of the prosecutors’ evidence here. Note to defense team: “circumstantial” doesn’t mean “weak.”

I’ll be providing on-air analysis and commentary tomorrow (Wednesday, June 11) on Tru TV’s “Best Defense With Jami Floyd” (Tru TV was formerly Court TV); Tru TV now provides national trial coverage as part of its “In Session” trial coverage across the U.S.