Boston Criminal Attorney Blog

This is a horrible story about a crime which, if true, is almost beyond comprehension.

One Eldrick D. Broom, 27, pleaded guilty this past week in Suffolk Superior Court to charges of the November 21 2011 aggravated rape and first-degree murder of Ms. Rosana Camilo, a mother of three who came to Boston so that her young son could receive medical care here. According to prosecutors, Camilo’s 16-year-old daughter found her mother’s lifeless and partially nude body in a rear bedroom of the apartment that Ms. Camilo lived in on Fairlawn Avenue, Boston. Broom was apprehended after an investigation produced DNA evidence linking him to the rape and murder, and he was ordered held without bail. But according to police investigators, that’s not how Broom was dealt with by the courts previously.

Broom was reportedly arrested in August on charges of assault and battery, after he was accused of beating up his pregnant girlfriend, who also lived in an apartment near where Camilo lived, according to police. He pleaded not guilty to that charge, and was free on personal recognizance when Ms. Camilo was murdered. Approximately a week after Ms. Camilo’s murder, Broom was also arrested in Brookline, this time on charges of open and gross lewdness and disorderly behavior after he allegedly urinated in public, according to court records. He was also released following that charge.

Now, this woman has been horrifically raped and murdered, the public is outraged, and understandably so. I can say this even as a Boston, Massachusetts sex crimes defense lawyer. The facts of this case are simply awful. Beyond Ms. Camilo being attacked, raped, and strangled with such force that her larynx was crushed, her17-month-old child was in his crib near his mother when she was raped and murdered. DNA evidence obtained from underneath Camilo’s fingernails link Broom to the crime, according to prosecutors. His attorney entered a plea of not guilty.

It’s this type of case that enrages the public, and fuels calls for stricter criminal sentencing laws This is seen currently with the Massachusetts Legislature’s current debate surrounding the so-called “Three Strikes Bill,” which would bar anyone convicted of three violent felonies from ever being eligible for parole. Though, in the interests of balance, it’s not presently clear to me that such a law would have prevented this defendant from being released on personal recognizance for the assault and battery offense he was charged with in August, as he was not yet convicted of that offense at the time he was released pending trial.

Regardless, the public is understandably angry and upset at the facts behind this case. As a Westwood, Massachusetts criminal defense attorney, it can be very hard to explain to people, why the presumption of innocence is so important, and how and why many defendants accused of crimes such as assault and battery are released on personal recognizance. A judge’s decision always involves consideration of a number of factors, including the offense before the court, prior offenses, and the evidence presented. Mistakes are always going to happen – and when mistakes like this happen, it’s beyond description.

My heart goes out to Ms. Camilo’s surviving daughter and husband Richard Nunez, who has told reporters that said Rosana’s world was “Our family and the baby.”

Because I’m a criminal defense attorney, doesn’t mean I don’t understand the public outcry over sentencing laws that are often perceived as too lenient. It is my hope that stronger measures can be enacted to better protect the public from violent offenders, without trampling the constitutional protections we all value – for ourselves, no less.

The conviction of a Massachusetts murder defendant was recently overturned by the Massachusetts Supreme Judicial Court, for a rather interesting reason. That reason centered on a suspect’s constitutional right to counsel while in police custody.

The defendant, Jerome McNulty, was arrested by Salem police on the morning of March 29 2001, for the murder of his girlfriend. The time line of what followed was key to the SJC’s decision to overturn the conviction: Upon McNulty’s arrest, he was read his Miranda Rights. A custodial interrogation was then conducted at approximately 9:12 AM, by a Salem detective and a state police sergeant. The interrogation took a break at approximately 10:00 AM. The defendant had told police when he was arrested that he did not have funds for an attorney, and at approximately 10:27 AM, an attorney was appointed to represent him. That attorney repeatedly called the Salem police station, asking to speak with McNulty, but he was told that the defendant was unavailable. On one occasion when the attorney called the police station back, he was told by a booking officer – the very same booking officer that had booked McNulty – that she could "neither confirm nor deny" the defendant’s presence at the police station. In other phone calls the attorney made to the station in attempting to speak with the defendant, the attorney was told that he’d have to speak with the department’s public information officer, and was transferred only into that officer’s unattended voice mail. In each and all of the attorney’s phone calls to the police station, he repeatedly asked police staff to pass along a specific message to the defendant: Do not say anything to police investigators.

Clearly, the police officers involved were engaged in an orchestrated effort to prevent any messages from the attorney, ultimately getting to the defendant. The defendant ultimately did not receive the attorney’s phone messages until 10:45 AM, and by that time had already signed a statement essentially admitting to the murder. The attorney arrived shortly thereafter, and was prevented from seeing the defendant for an additional 20 minutes while police investigators wrapped up getting the defendant’s signed statements.

The defendant’s attorney filed a motion to suppress the defendant’s post-arrest statements to police as violating his constitutional right to counsel, but Superior Court judge David Lowy denied the motion. The statements were admitted into evidence, and the defendant was convicted at a Superior Court jury trial. The question before the SJC: Were those post-arrest statements properly admitted at trial, given the fact that police investigators failed to pass along repeated messages from the defendant’s attorney, to not speak with police investigators until the attorney’s arrival?

According to Justice Margaret Botsford, who wrote for the majority of the five justices hearing the case, the answer is "No". (It should be noted that two of the seven justices on the court were not present at this argument, hence only five voted.) Botsford wrote that under a prior decision the SJC rendered in 2000, Commonwealth v. Mavredakis, the police were required to apprise a defendant of communications from his attorney, if those communications directly affected his right to counsel. The court’s majority found that the messages that McNulty’s attorney had asked be given to McNulty, related directly to McNulty’s right to counsel. Because the attorney’s specific instructions on this point were not relayed by police to the defendant, the defendant’s subsequent agreement to continue to speak with police, and to sign a statement without his lawyer present, did not constitute a knowing or intelligent waiver of his right to counsel.

Justice Ralph Gants wrote a strong dissent to the majority opinion. Gants wrote that while the police do have a duty to inform a suspect in custody of an attorney’s efforts to render assistance, they are not obligated to do anything more than that. “The [majority] appears to believe that this (ruling) is not a new addition to the ‘duty to inform’, but it is.” “We have never before declared that the ‘duty to inform’ includes a duty to communicate an attorney’s specific legal advice to a suspect.”

A spokesman for the Essex County District Attorney’s office said, “Given the significant change in the law as a result of this decision, we believe the case should be heard by a full panel of all seven judges. In this case, two judges were not present, and there was a strong dissent.”

As a Boston Massachusetts criminal defense lawyer, I can certainly see why both sides to this argument feel very strongly. To those who feel this decision weighs too heavily in favor of defendants' rights, I'd ask that you consider this question: Does the constitutional right to counsel represented in the Miranda Rights effectively mean anything, if an attorney's advice to a suspect is deliberately (or even accidentally) blocked by police before an attorney arrives to meet his client? Think about it.

The suicide early Monday morning of accused “Craigslist Killer” Phillip Markoff forever ends any possibility of hearing from this man’s own mouth, the story of what brought death to a troubled young woman making her money as a prostitute, Julissa Brisman, and what brought down the life of a promising young future doctor. Two lives, from very different worlds, are both now ended. Many people would (and in fact, presently do) argue that Markoff’s death is a further loss to young Brisman’s family, who will now be denied seeing justice done in a court of law, but that his death is no great loss to the world. Perhaps both of those observations are true.

I do not write this post to argue that Phillip Markoff’s death is a great loss to anyone other than his family. On a legal level, a strong argument can perhaps be made that his suicide evidences the ultimate demonstration of what we lawyers call “consciousness of guilt,” concerning the murder charge against him. From the evidence made public to date, it doesn’t appear - however horrific the end result was for Julissa Brisman (and it certainly was,) - that Markoff was a savage, cold-blooded killer who set out in advance to kill this woman (or anyone.) As a Boston criminal defense lawyer, trust me, I’ve seen those kinds of cases, whether involving murder, rape or other violent crimes.

Rather, in meeting with prostitutes from Craig’s List, often in upscale hotels, Markoff was carrying out an interesting con game, to feed a bad gambling habit that he played out, so to speak, at well-known gambling venues like Foxwoods Resort and Casino, as well as possibly Las Vegas. It appeared that Markoff constructed a rather creative ploy to obtain cash to feed this gambling habit. The idea was to meet prostitutes in private hotel rooms, then spring a gun on them to rob them of the considerable cash that prostitutes are known to carry. The “benefits” to this plan, from Markoff’s view? 1) No witnesses (since the robberies took place behind closed doors); 2) Since the victims were engaging in illegal activities (usually prostitution, offered under the cover of “massage services,”), the victims would never call the police or hotel security; 3) He walked away with lots of cash to feed his gambling lifestyle.

This behavior is beyond excuse. It was intentional, it was illegal, and it was immoral. And had he lived and been found guilty at his trial of the murder charge that he faced, Markoff should have been punished severely. But even in view of Julissa Brisman’s tragic murder, I don’t think this killing evidenced a vicious, heartless, cold-blooded killer. Though Markoff carried a gun to frighten and intimidate his victims, I don’t think he ever intended to kill anyone. Markoff had pulled this con game, successfully, several times with other prostitutes – and all of them surrendered their cash and he walked out of these hotels with no police being called, no report being filed. But with Julissa Brisman, Markoff’s luck ran out. She didn’t give up her cash willingly. She resisted. A struggle ensued; a death resulted. With Markoff’s death and the opportunity for Brisman’s family to confront him in a court of law forever removed, now no one will “win” here. No one ever does in these cases.

Legally, what happens to the case now? It will be dismissed. (Yes, dismissed.) The office of Suffolk County District Attorney Daniel Conley will ask a Massachusetts Superior Court judge to dismiss the charges, based on the death of the defendant. There will be no record of a conviction against Markoff, only a record of his arrest, his arraignment on the charges he faced, and the fact that the charges were later dropped.

These are awful cases, for everyone involved. No one ever “wins” in these cases, and no one won here: Not Julissa Brisman’s family, not Phillip Markoff’s family; and not Megan McAllister, the young woman who fell in love with Phillip Markoff, and who would have been married to him one year to the date that he ended his life in a bloodied and gory scene within the sterile confines of the Suffolk County Massachusetts Jail.

“Justice Delayed is Justice Denied” is generally speaking an accurate truism. But in some cases, not so. Legal events this past week in Falmouth District Court make clear that exception.

Thirty years ago, in January of 1980, a woman by the name of Frances Carriere was found murdered in the bathroom of her Bourne, Massachusetts home. She had been stabbed three times in the lungs and heart. From the beginning, her then-estranged husband Edmond T. Carriere, whom Frances had been separated from, had been identified by authorities as a suspect. However, Edmond Carriere had been in Florida at the time of the Massachusetts murder, and police were not able to establish sufficient evidence to charge him with involvement in his wife’s murder. In 1982, a friend of Edmond Carriere’s by the name of Richard Grebauski was indicted by a Barnstable County Grand Jury in connection with Carriere’s murder, but the charges were dropped in 1983 when Philip A. Rollins, the then-Barnstable County District Attorney, determined there was insufficient evidence to go forward with the trial. From that point until 1999, while the case remained technically open, no progress was made, and most of the previous investigators on the case had either retired or died.

Then, in 1999, a state police sergeant by the name of Paul White who was then assigned to the Massachusetts State Police cold-case squad, and a trooper by the name of Chris Mason, took up the investigation anew. In April 2000, a special Grand Jury was appointed to examine evidence in the case. In 2001, Carriere’s four adult children also hired a private investigator by the name of Terrence O’Connell to investigate their mother’s murder. All these efforts yielded new results: In 2003, two men were indicted by a Barnstable County Grand Jury for the murder of Frances Carriere: Richard Grebauski, of Wareham (the same individual who had narrowly avoided being tried for Carriere’s murder in 1982,) and a Steven Stewart of Brockton. In 2004, curiously, Richard Grebauski died in a motorcycle accident while visiting none other than Edmond Carriere in Florida.

In 2005, a Barnstable County jury convicted Steven Stewart for the murder of Frances Carriere, and he was sentenced to life in prison without the possibility of parole. During Stewart's 2005 trial, witnesses testified that during a card game, Carriere offered them money to kill his wife. At that trial, there was additional testimony that Carriere allegedly paid Richard Grebauski $10,000 for the killing. Grebauski was alleged to have then paid Stewart $5000 of that money to join him in the murder. With Stewart’s conviction, justice seemed to have been done.

However, in 2009, on appeal the Massachusetts Supreme Judicial Court overturned Stewart’s conviction and ordered a new trial, ruling that a witness at Stewart’s earlier trial was improperly questioned by the prosecution. Stewart’s new trial was scheduled to begin in a few weeks, when the Barnstable County District Attorney’s Office was faced with a Hobson’s Choice: Take the risk that without the prior witness (at Stewart’s 2005 trial) being available for testimony, Stewart might receive an acquittal at the new trial - or “do a deal with the devil”: Strike some acceptable plea bargain with Stewart (one of the two men who actually committed the murder,) in exchange for his testimony implicating Edmond Carriere.

That’s one tough choice, legally and morally: What to do? Risk that both men remain free, or find some small satisfaction that Stewart had already served seven years for Frances Carriere’s death, and secure a way to convict the man that almost all investigators believed was the master planner of this murder – Edmond Carriere? District Attorney Michael O’Keefe made the deal: Instead of re-trying Stewart on a charge of murder one, he would allowed Stewart to plea guilty to a reduced charge of voluntary manslaughter, with a joint recommendation (i.e., agreed to by both the prosecution and Stewart’s defense attorney,) that Stewart’s sentence be reduced to time already served (seven years.) Again, not an easy choice. But life isn’t about easy choices – especially life as a prosecutor or criminal defense attorney.

Yet all four of Carriere’s four adult children celebrated this decision and the indictment of Edmond Carriere. "This has been a long time in coming," said Linda McCraney, one of the Carriere's four children, who now lives in Florida. "I can't tell you how happy this makes me. None of us — my sisters, my brother, my aunt or me, would be in this position now if not for what my father did to my mother 30 years ago. Our lives were changed in ways that no one could have expected.” Over the years, the Carriere children have maintained that their father believed that his wife would be awarded their house if their divorce proceedings that were underway at the time, continued forward. They’ve stated that their father was convinced that their parents’ home would substantially increase in value because of state highway plans in 1980 to extend Route 25 directly to the Bourne Bridge and to develop a new rotary near the exit ramp in Buzzards Bay, and he didn’t want to lose the house to his wife in divorce proceedings.. (Prior to these highway changes, traffic to the Bourne Bridge had to pass through Wareham and the center of Buzzards Bay.)

As a Boston criminal defense lawyer, it’s my professional obligation to presume a defendant innocent. But I can say that when four adult children literally celebrate the arrest and indictment of their own father for their mother’s murder, (coupled with all the other evidence in this case,) little more need be said.

From the day this murder occurred, Edmond Carriere has long been a suspect in this case, by seemingly everyone involved in it over thirty years’ time. It seems now that, in this case at least, justice delayed may not be justice denied. This trial will be interesting to follow.

Today, John Odgren’s defense lawyer rested his case in the murder trial of the now 19-year-old young man who is accused of fatally stabbing 15-year-old James Alenson in a bathroom at Lincoln-Sudbury High School three years ago. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you: Odgren's lawyer has his hands full with this case.

During the past week, Odgren’s lawyer has called three mental health experts to the stand, (as well as the defendant’s own father,) to bolster Odgren's insanity defense, claiming he was psychotic and delusional when he killed the Alenson boy. As I said, Odgren’s lawyer has his hands full – as does any defense lawyer advancing an insanity defense. The public - and the members of the public who constitute juries such as the one to decide Odgren's fate - are very hostile to the insanty defense. The reason for this is largely owing to a misunderstanding of what "not guilty by reason of insanity" legally means, and what the legal consequences are to a defendant so adjudicated. "Not guilty by reason of insanity" does not mean that the jury found that the defendant did not commit the act he was charged with. Nor does this verdict mean the defendant is "innocent." It means only that the defendant, when committing the crime he was charged with, was so mentally ill at the time he committed the crime, that he could not appreciate the criminality of his conduct or control his actions to conform to the law. More on that later in this post, but for now trust me - the defendant is not set free.

Last week, the prosecution produced its own psychiatric experts when it presented its case, but today the prosecution produced a particular rebuttal witness, and I was rather surprised at the relatively weak professional credentialing and minimal professional experience associated with this expert. In testifying for the Commonwealth, psychiatrist Dr. Alison Fife agreed with the defense's psychiatric experts that Odgren suffered from mental diseases and defects, but disagreed with their assessment of his competency.

Dr. Fife testified, "I think that Mr. Odgren was very aware that he was trying to mortally wound Mr. Alenson." This assessment as to his awareness is key, as whether or not Odgren was able to “Appreciate the criminality or wrongfulness of his actions” is key for the jury, in making a determination as to whether he was legally insane at the time of the murder. What made this expert for the prosecution appear rather weak to me, was her relatively scarce professional experience in making professional psychiatric assessments of juveniles, as well as her extremely limited interaction or familiarity with this defendant. On cross examination, Odgren’s defense attorney pointed out that Dr. Fife interviewed Odgren for the first time, only two months ago, and that his mental state could have changed a great deal from almost three years ago, when the killing occurred. Wisely, the defense also questioned this psychiatrist’s professional qualifications to even examine Odgren, at all. In the process of cross-examination by the defense, this psychiatrist was forced to acknowledge that she’s never even conducted a criminal responsibility evaluation, on someone who was a juvenile at the time of the crime. Not necessarily fatal to the prosecution’s case, but not helpful, either.

Yet it may be that the most pivotal day in this trial occurred last week, when Odgren’s lawyers asked the judge in this case to charge the jury specifically that, if they found Odgren “not guilty by reason of insanity”, he would be "automatically" committed to a hospital for the insane. The reason why Odgren’s lawyers wanted this instruction is due to the widespread misperception – doubtless held by several if not all members of this jury - of what does, in fact, happen to a defendant who is found “not guilty by reason of insanity.” Most people incorrectly think that such a verdict would result in the defendant walking out of the court house, free. Not so, at all. In Massachusetts, such a person would almost certainly (nearly a 100% chance) be immediately committed by the judge to Bridgewater State Hospital for a 40-day evaluation, during which prosecutors or a doctor could petition the court to order him held a minimum of six more months. After that, another commitment hearing takes place, and unless extremely probative, convincing evidence is presented that the individual no longer suffers from the mental disease or defect that caused him to commit the underlying offense, he or she is held at the state mental hospital under what is known as an "involuntary civil commitment." This is what was done with more well-known defendants who have been found not guilty by reason of insanity in other states: John Hinckley (who shot President Reagan,) for example. While the defendant who is so committed has the right to periodically petition for release, it is not at all likely that request would be granted for many, many years to come – if at all.

Some of my readers may recall the John Salvi abortion shootings case in Massachusetts, in 1996. The evidence in that case cried out for a “not guilty by reason of insanity” verdict. The evidence was overwhelming – truly beyond any reasonable doubt – that Salvi was critically, mentally ill. To depart from medical or legal terminology, he was stark raving mad, unquestionably insane. Salvi’s lawyer produced several psychiatry experts who testified that Salvi suffered from pronounced and severe paranoid schizophrenia - that it was beyond question that he did not unerstand the criminality or wrongfulness of his conduct at the time of the shootings. The evidence of his insanity was so powerful and so overwhelming, that the prosecution couldn’t even find a single credible psychiatry expert to testify that Salvi wasn’t insane - the best “expert” the Commonwealth could come up with, was someone with a PhD in Education, who testified he thought Salvi was sane at the time of the killings. The prosecution’s testimony was a joke. Yet the jury found Salvi guilty, as though he were sane. A clearly insane man, he was sentenced to a maximum security state prison, and hung himself not long afterward. Not a great loss to society, but the jury’s verdict only compounded an already-terrible tragedy.

The practical reality is that such “involuntary civil commitments” last for decades, if not for life, in a prison that doubles as a mental hospital. Notwithstanding the defense’s request that the judge inform the jury specifically that the defendant would be “automatically” committed to the state mental hospital for the insane, the judge denied the request. This followed, naturally, the vigorous objections by the prosecution, who countered that they weren’t prepared to discuss what they would request of the judge if the jury found Odgren insane. (This is posturing, of course: In such an event, the prosecution would move immediately for an involuntary civil commitment to the state mental health hospital, and all the parties know that.) However, the judge agreed to consider an alternate request - that she explain to jurors the “likely scenarios” after a not-guilty verdict, to assuage any juror concerns about releasing the defendant back into society, if they returned such a verdict. I think it would be preferable to assure the jury that the defendant would be "automatically" held indefinitely in the event they chose "not guilty by reason of insanity," since this is the practical reality. However, as a Boston murder defense lawyer, it's my opinion that as long as the judge assures the jury that it is "extremely likely" that such commitment would result and the defendant would not be released to society, that would represent a major step forward in these types of cases.

We'll know soon enough.

Not too much time will pass from this point, before we find out what this judge will instruct this jury on, and how this is all going to play out. A verdict of “Not guilty by reason of insanity” is going to be made more likely if the judge reassures the jury on the “most likely” destination of the defendant if they find him “not guilty”, but it’s no guarantee. Juries have always been reluctant to return these verdicts. That’s unfortunate, for two reasons: 1) Many times, the evidence clearly calls for it; and 2) If such a verdict is returned, it doesn’t mean the defendant didn’t commit the act, and it doesn’t mean the defendant walks away free. If anything, a defendant receiving such a verdict ends up in a place even worse than just prison: It’s a state prison filled with mentally insane criminals. How anyone can think that’s “Letting someone off the hook”, is beyond me. Hopefully, more public information and education will correct this widely-held misperception.

It’s stories like today’s, which would make anyone outside of the profession of criminal law or law enforcement, pause to wonder what it is inside people that causes them to sometimes act the way they do. Not me. As a Massachusetts criminal defense lawyer, I’ve seen it all. Yet today’s post is no less unfortunate than those that have preceded it.

The Worcester County District Attorney’s office reported yesterday (Labor Day,) that two Fitchburg area teenagers were killed in a fight that began over a parking space in a driveway outside a party. The Worcester district attorney reports that Nelson Geraldino, 18, was stabbed multiple times and that Pedro Genoa, 17, was shot in the abdomen and suffered other injuries in the early Sunday morning fracas in Fitchburg. Genoa's 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds. Three suspects have been arrested: Two brothers who were injured in the fatal confrontation, Orville Carrion, 22 and Jose Carrion, 27, have been charged with murder and are being held without bail. Genoa's 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds, and has been charged with assault with intent to murder and mayhem. Mayhem, as my website explains, is an aggravated form of assault and battery. This charge essentially alleges that the defendant either did or had the intent to dismember the victim or otherwise inflict grevious bodily injury, such as slashing someone’s face or amputating an appendage (ear, finger, foot, etc.) A knife or blade is commonly involved with such a charge.

Based upon my experience as a Massachusetts murder defense lawyer, I smell either alcohol or some other drugs involved here – in the sense that they caused this fight to escalate to murder, not in the sense that this was necessarily a drug deal gone bad (as can often be the case.) This case may have been a variant of road rage, a crime increasing in frequency. My advice to anyone involved in such a situation: Keep your head calm and your wits about you. Getting cut off in traffic, or losing a parking space to an inconsiderate boor, is nowhere near worth risking your life and freedom for.

As a Boston, Massachusetts criminal defense attorney, I’ve seen a lot of horrific crimes. Truly, shocking acts. But what was discovered in Worcester this past few days, would leave anyone stunned beyond words: Not only was a 23 year-old woman found murdered in her apartment, but the 8 month-old fetus she was carrying had been cut out of her womb.

The murder victim and the baby's mother was Darlene Haynes. Apparently a rather troubled young woman, Haynes was, at age 23, the un-wed mother of three other children, age 5 years to 18 months, with the 18 month-old in the care of the state Department of Children and Families. The other two children, ages 3 and 5, were being cared for by Haynes’ mother. Police said the 23-year-old had apparently been dead for several days, and that she hadn't contacted family or friends since Thursday. The gruesome discovery of Haynes’ body was made by her landlord, William Thompson, who said a "horrifying smell" led him to her apartment, where he found her body wrapped in bedding in a closet. While her death was ruled a Massachusetts homicide, the exact cause of Haynes' death has yet to be determined pending toxicology tests, At this point, the autopsy indicated Haynes suffered head injuries.

Major developments in this murder case occurred yesterday, when the baby that had been cut from the victim’s uterus was located, and a suspect in this murder was arrested. Surprisingly, (some would say shockingly,) the baby appeared to be in good health. Julie Corey, 35, of Worcester, Massachusetts, and a male companion were arrested in the town of Plymouth, New Hampshire, where police found them with the baby. Corey was charged as a fugitive from justice and is to be arraigned in District Court in Concord, New Hampshire today. As of the time of my posting, Corey was in custody and could not be reached for comment; it is unclear at this point whether or not Corey has a lawyer. Police in New Hampshire said the man found with Corey was released, and is not a suspect at this time. (So much for the oft-stated claim by feminist groups, that women don't commit violent crime, but only men.)

Suspicions around Corey began to swirl when she reportedly told acquaintances that she delivered the baby sometime late Thursday or early Friday at an undisclosed hospital, but friends and observers were confused about how Corey could be home so soon after giving birth. By later Friday (allegedly less than a day after she gave birth to the baby,) Corey was actively showing the newborn off to acquaintances, police said, and she hardly appeared to be someone who just gave birth. Police investigators said that Corey had reportedly gone to New Hampshire to relocate. Reportedly, she arrived at a Plymouth homeless shelter Tuesday night. She allegedly told workers there that the girl was 6 days old and identified herself as the mother - yet had no information on the child, according to the Union Leader in New Hampshire. Corey was arrested Wednesday as she tried to leave the shelter with the infant after workers alerted police and a nurse began photographing the baby with her cell phone, according the Union Leader.

While admittedly revolting in its details, as a Boston, Massachusetts criminal defense attorney, I can tell you that this case illustrates a great deal about the law of several crimes: murder, assault, battery, mayhem and attempted murder. I’ll talk in greater detail about these in my next post.

In the meantime, try not to lose faith in humanity and the human condition. Cases like these strain that belief to the limit.

Readers of my blog know that I’ve posted previously on the horrific story of the beating death of young Nathaniel Turner, a 7 year-old boy from Alabama that came to live with his biological father, Leslie G. Schuler, near Worcester, for the summer. On June 21 2009 – Father’s Day – Schuler allegedly beat the boy so badly that he was left brain-dead. A truly horrific story. The alleged facts of this story call to mind the story of Haleigh Poutre, an 11 year-old girl who was also beaten so badly she was almost disconnected from life support at the request of the Massachusetts Department of Children and Families (formerly the Department of Social Services.)

Police said Schuler took Nathaniel to the emergency room on June 21, Father’s Day. The boy was unconscious, suffering from traumatic brain injuries, and was placed on a ventilator. Following a medical determination that the boy had been beaten, Schuler was arraigned last week on assault and battery charges. The boy was declared clinically dead last Tuesday, June 30 2009, after evaluation by doctors from the University of Massachusetts Memorial Medical Center’s University Campus in Worcester and Children’s Hospital in Boston. Nathaniel was removed from the ventilator over the following weekend. His organs were harvested for transplantation.

Schuler was then arraigned last week on a murder charge, according to District Attorney Joseph D. Early’s office. Schuler was originally represented at his assault and battery arraignment by a public defender who reportedly is not on a special list of lawyers appointed by the state to represent defendants accused of murder. (That list is known as the “Murder List” at the state agency who appoints lawyers to represent indigent criminal defendants, the Committee for Public Counsel Services.) However, Schuler has since been appointed another lawyer who is on the “Murder List”, and that person is the same lawyer who represented the stepfather in the Haleigh Poutre case. Springfield lawyer Alan J. Black was named to take over Schuler’s defense. Black represented the neglectful stepfather in the high-profile Poutre case in 2005.

Though comparisons have been made between the Turner and Poutre cases, Marylou Sudders, president of the Massachusetts Society for the Prevention of Cruelty (MSPCC) to Children, noted that the tragedies are profoundly different. “Haleigh was in a vegetative state and had suffered severe brain injuries,’’ Sudders said last week. “She was never declared clinically dead by a physician. Being clinically dead means there’s no brain function, and organs are shutting down.’’ (Nathaniel Turner was declared clinically brain dead.)

People often wonder how any lawyer can represent a defendant charged with murder, or worse, such a horrific crime as this murder. As a Massachusetts criminal defense attorney, I can tell you that the answer lies in the Constitution: Each person accused of a crime in our system of criminal justice is assumed to be innocent until proven guilty, and each person is entitled to a vigorous legal defense. That, and an emotional ability to completely separate your personal feelings about the defendant, from your representation of him or her. It’s hardly easy, and it takes a tough stomach. But if you think the system should change, then ask yourself if you'd be willing to be the first one as a criminal defendant to "test" that new system.

How I wish I could write more of positive news in this blog. Unfortunately, as my law school professors used to tell me, “It’s bad cases that make good law.”

Along those lines, this next case illustrates the definition of murder in Massachusetts, and when someone is “dead.” Nathaniel Turner was a 7-year-old boy who by all accounts was a pleasure to be around. According to those who knew him well in his hometown of Eufaula, Alabama, the 7-year-old liked to stay home and play in the yard. In school, He was an excellent student at Eufaula Primary School, whose school principal Suzann Tibbs, now thinks of his smile: “The smile in the picture - he has it all the time,” she said of a recently-taken photo. He was raised by his grandmother Chrissy Taylor, from the time he was born. Now, it seems, that promising life is ended. Far too young, and far too cruelly. Nathaniel was declared “clinically dead” Tuesday June 23, 2009 by doctors at UMass Memorial Medical Center after he was allegedly beaten by his father, Leslie G. Schuler, on Father’s Day.

The 36-year-old Schuler now faces multiple charges, including several counts of assault and battery and assault with intent to murder. News sources, including The Worcester Telegram & Gazette, are reporting that Schuler allegedly slammed Nathaniel’s head into a wall on Father’s Day. It was reportedly the latest in a series of abusive acts that have occurred since Nathaniel was ordered by a court to spend the summer with his father. A Massachusetts Juvenile Court judge is expected to rule soon whether Nathaniel will be taken off of life support at UMass Memorial Medical Center University Campus.

How a 7-year-old could be placed in such an abusive situation is disturbing. According to the Worcester Gazette-Herald, Schuler was also charged with a 2006 assault stemming from an alleged attack of a man with a pipe. Schuler has reportedly paid child support for three years according to the Boston Herald, but this summer was apparently the first time that Nathaniel has spent this much time with his father in Massachusetts. Family members stated that Nathaniel did not want to leave his hometown of Eufaula, Alabama for the summer. The boy had allegedly been abused both physically and mentally by his father for several weeks, according to media reports. Schuler’s girlfriend, Tiffany Hyman, 28, allegedly watched the abuse take place. She was charged with two counts of assault and battery on a child causing serious bodily injuries. Schuler has been held on $250,000 cash bail and Hyman on $50,000.

Is this a horrid case of child abuse, or murder? As the murder section of my web site makes clear, at present, in Massachusetts it has been ruled by the Supreme Judicial Court that death essentially occurs when a patient exhibits no spontaneous respiration, when no positive electroencephalogram (EEG, or brain waves) exists for a period of 24 hours, and when the patient does not respond to painful stimuli. Together, these factors constitute brain death. Hence, were someone to walk into a hospital room and unplug the respirator from such a patient, there would be no "murder." Tragically, that seems to be the case for Nathaniel Turner. If so, Leslie G. Schuler, his father, will stand trial for murder or manslaughter. If convicted, one can only hope that his mental torture that haunts him from this act will last each day he is in prison, and for the rest of his life. I say this as a Massachusetts murder defense lawyer, who believes that each defendant should receive a strong, vigorous legal defense in court. Schuler deserves no less under our system of justice, like anyone else accused of a serious crime. But if the evidence convicts him, I hope he suffers long and hard. And I say that, as a man of conscience.

In my previous post on this subject, I discussed how circumstantial evidence obtained by police can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. But why is the charge “murder” here, and not something lesser? Technically, Markoff is being charged with a violation of Massachusetts General Laws Chapter 265, Section1, which defines the crime as follows: "Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree."

Do police investigators and the Suffolk County District Attorney’s office believe that this was a pre-meditated murder (such as with the recent Massachusetts case convicting Neil Entwistle? Not likely.

Instead, Markoff is being charged with murder almost certainly because of what is known as the “Felony Murder Rule”. This legal maxim provides that a charge of murder will apply if a death occurs during the commission of a felony (think of a bank robbery.) When this happens, the homicide can be considered first degree murder, without establishing intent to kill. This rule "injects" the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged underlying felony, and the death must have resulted from the "natural and probable consequence of the felony." Again, the prosecution doesn't have to prove intent to kill; only that a death resulted during the felony, or during the attempt to commit the felony. Here, Markoff was allegedly in the act of kidnapping and robbery of the victim when the death occurred, hence the charge of murder. I’m told by persons close to the investigation that so far, prosecutors do not believe that Markoff intended to kill the victim, but that the shooting and death resulted when the victim resisted the robbery.

That doesn’t change the legal reality for Markoff. If a jury finds him guilty of first degree murder, the mandatory sentence for this conviction in Massachusetts is life imprisonment without the possibility of parole. Looking ahead, it’s possible that a jury could find Markoff guilty second degree murder. The difference between a first and second degree murder verdict is that, for a second degree felony murder conviction, the underlying felony must carry a penalty of less than death or a life sentence. In Massachusetts, a second degree murder conviction carries a maximum sentence of life imprisonment with the possibility of parole after 15 years. Another major difference from first degree murder felony murder, is that a defendant charged with second degree can waive the right to a jury trial, and argue the case before a judge. This is otherwise known as a "bench trial."

Another possibility is that Markoff could be found not guilty of the murder charge, but found guilty of a lesser-included offense. As hard as it may be, remember: Our system provides that until convicted, the law presumes an accused to be innocent.

In the past ten days or so, I’ve been asked by more than one person why accused “Craigslist Killer” Phillip Markoff has been charged with murder, and not a lesser crime, since there are not currently any witnesses who say they actually saw what happened. The formal charges against Markoff are murder of Julissa Brisman of New York City (on April 14 2009) and armed robbery and kidnapping of an additional victim on April 10, 2009 at the Westin Hotel in Boston's high-end Copley Place. Is it not possible, some ask, that even if Markoff was the person who struggled with the murder victim, Julissa Brisman, and fired the gun that killed her, he may have been acting in some kind of self-defense? How can the police know enough to charge him with the most serious of homicide crimes, when they don’t have a witness?

The answer is that circumstantial evidence can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. A suspect like Markoff is not at all prevented from advancing any particular defense he wishes (including self defense,) but that doesn’t mean a jury or judge would ever accept it as plausible. (Parenthetically, a defense invoking self-defense isn’t likely here, and would almost certainly fail, as the victim wasn’t armed, was shot three times and bludgeoned in the head. She weighed about 100 pounds; Markoff is over six feet tall and easily weighs 160-170 pounds.)

The earlier victim of kidnapping and armed robbery on April 10 2009 at the Westin hotel, later identified Markoff from hotel surveillance tapes. Police said they discovered forensic computer evidence showing that emails were sent from Markoff’s computer in his Quincy apartment to the victims, as well as forensic evidence of text messages sent from Markoff’s cell phone to the victims. Investigators also found plastic ties in the search of Markoff's apartment, and several pair of women’s underwear that Markoff allegedly took from his victims. Notably, despite the discovery of this underwear, none of Markoff’s alleged victims were sexually assaulted. Police have alleged that Markoff booked appointments with prostitutes and “masseuses” who advertised on Craiglist, not to sexually assault them, but to rob them at gunpoint for cash to feed a gambling habit that he had. Investigators theorize that Markoff (logically) assumed that a) High-end, “private” prostitutes who book luxury hotel rooms for services likely carry large amounts of cash; b) In a locked hotel room, there would be no witnesses to the robberies; and c) No prostitute was going to fight a man with a gun, nor, more importantly to the plan, report the robbery to police. Logical enough thinking, if you’re a criminal. But police and prosecutors theorize that everything went wrong and ended in murder when Brisman tried to resist Markoff from robbing her and tying her up.

I’ll have more on why the legal charges are what they are here, in my next post.

In two previous posts on this subject, I wrote of how Middlesex County District Attorney Gerry Leone’s office has doggedly pursued a suspect in the unsolved murder of Dr. Linda Goudey, a Stoneham obstetrician who was found strangled to death in the trunk of her car in September of 1993. That suspect is one Richard Stryker, M.D., the former boyfriend of Dr. Goudey. While Stryker was always a prime suspect in Dr. Goudey’s death, authorities were never able to assemble enough evidence to formally charge Stryker with her murder. However, Dr. Goudey’s family, led by her mother Marguerite Rafuse, brought a civil case against Stryker, seeking to hold him civilly and financially responsible for the death of Dr. Goudey. (For a refresher on how that legal mechanism works, see my last post on this subject.) Goudey’s family won that civil case, and secured a $15 million judgment against Stryker.

In response, Stryker hatched a plot to escape that $15 million jury award. His plan centered on securing a new trial on that civil judgment by producing a “new” witness who would testify that Dr. Goudey was last seen alive on the night of her death with another man, not with Stryker. Stryker devised the alibi scheme with a patient and friend of his, Woburn handyman Richard Chambers and with another man, Craig Pizzano. If the plan worked, Stryker was to pay both men over $100,000.00. But Pizzano eventually cracked, and admitted his role in the plan to authorities. That led the whole plot to unravel, and Stryker was arrested and charged last July with multiple counts of conspiracy to commit perjury. After spending several weeks being held in jail, Chambers then also broke down and admitted his involvement in the scheme. In exchange for his cooperation in this case, Chambers will likely avoid prison time.

Based on the summation of these developments, Stryker today pleaded guilty to multiple counts of perjury, subornation of perjury, and conspiracy charges in connection with his attempt to escape the $15 million judgment the Rafuse family secured against him. He was sentenced by Middlesex Superior Court Judge Diane Kottmyer to four years and one day in State Prison followed by fours years’ probation. Conditions of his probation include that Stryker pay restitution to the family of Goudey for their costs associated with the motion for new trial, and refrain from contacting the victims or any of the witnesses in the case. Commenting on the sentencing, Middlesex County District Attorney Gerry Leone said, “We were presented with a very interesting and large ball of yarn. The result of our unraveling that ball of yarn, were Timothy Stryker’s pleas of guilty today.” “Tim Stryker orchestrated the most serious of frauds upon the court … and attempted to frustrate our criminal investigation into the murder of Dr. Goudey. Her family has had to live with the anguish of Linda’s death for more than 15 years.” Goudey’s mother Marguerite Rafuse, 80 years old now, issued a statement read aloud to the court. In the statement she said the perjury scheme was a “diabolical” plan, and called Stryker, “unfeeling, calculating, manipulative and abusive.” “I am sure part of the reason for the plan of lies was retaliation in anger against me for the civil judgment,” wrote Rafuse.

As part of the plea deal, Stryker is unable to benefit financially from the case in any way. Prior to his guilty plea today, Stryker also entered into an agreement with the Massachusetts Board of Medicine not to practice medicine in the Commonwealth in the future, according to Leone. But the Massachusetts Board of Registration in Medicine could now revoke Stryker’s medical license altogether. Leone is continuing to investigate the murder of Goudey, and Stryker remains the prime suspect, he said. In the meantime, for the next four years at least, Stryker will remain a guest of the Massachusetts Department of Correction, in state prison.

While I’m a Massachusetts criminal defense attorney, my everyday practice goals revolve around securing a just outcome to any situation. As long as Stryker was provided due process and the opportunity for a fair trial, I have no problem at all seeing this man escorted off to a cell. My best wishes to the Rafuse family, and hopefully, this will bring some measure of justice for them.

A Norfolk County Superior Court jury convicted Ryan Bois, 22 on Thursday March 12 of raping and killing his 6-year-old cousin, Joanna Mullin. The jury rejected his attorney's claim that Bois was insane and "tortured by demons" when he committed the crime. Bois was found guilty on 10 of 13 counts, including two counts of rape and one count each of kidnapping and home invasion as part of the murder. Judge Janet Sanders commented this case has been “the worst” she has seen in her 14 years on the bench. As she is required to under Massachusetts law, Sanders sentenced Bois to two life terms in prison without the possibility of parole.

The jury convicted Bois after eight hours of deliberation, and followed a dramatic display by Bois earlier in the week, when he claimed he could not enter the courtroom due to emotional distress.

Prosecutors from the Norfolk County District Attorney’s Office argued that Bois broke into his grandmother's house in Weymouth and raped and strangled Joanna Mullin, who was having a sleepover there in August 2007. The prosecution argued Bois broke into the house to steal money, and when Joanna Mullin caught him, he killed the girl to cover it up. Bois then wrapped the girl's body in a quilt and stole his grandmother's SUV. Police found the girl's body inside the SUV after Bois led them on a high-speed chase, and then crashed the vehicle into a taxi in Quincy.

Bois' defense attorney, Beverly Cannone, argued her client was not legally responsible for killing his cousin because he was mentally ill. It was the only “viable” defense available, but as a Massachusetts criminal defense lawyer, it was pretty clear to me it wasn’t going to work Under state law, a conviction of first degree murder is automatically appealed to the state Supreme Judicial Court, but I highly doubt this appeal will go anywhere, in terms of being overturned. Like in last summer’s highly publicized case of Commonwealth vs. Entwistle, the prosecution was meticulous in its case here. I don’t see any procedural or substantive flaws of the type or nature that would mandate the SJC reversing this verdict, or ordering a new trial.

The Middlesex County District Attorney’s office scored a big prosecutorial hit earlier this week, with the conviction - on the second try - of a defendant who had been charged with a double homicide in 2006 in Wakefield, Massachusetts.

Sean Fitzpatrick, 46, of (ironically) Freedom, New Hampshire, will never know freedom again. He was convicted February 19 2009 by a Middlesex Superior Court jury of two counts of first degree murder in the deaths of Michael Zammitti, Jr., 39, and Chester Roberts, 54. Fitzpatrick was also convicted of a lesser charge of illegal possession of a shotgun. The first degree murder convictions carry a mandatory life sentence in Massachusetts. While an appeal to the state Supreme Judicial Court is by law automatic, as a Massachusetts criminal defense attorney, I doubt there is much room for reversible error in these convictions. Sentencing is scheduled for tomorrow, February 23, before the judge presiding over the trial, Judge Kathe Tuttman.

Just after 8 a.m., on Monday, March 13, 2006, Wakefield Police responded to a 911 call from an individual at Allstate Concrete Pumping, located at 17 New Salem Street in that town, reporting an unconscious male. Upon arrival at the scene, police discovered the body of Chester Roberts on the first floor of the building, and the body of Michael Zammitti in a second floor office. Both victims were both pronounced dead at the scene. Zammitti was the owner of Allstate Concrete Pumping, and Roberts was a longtime employee at the company. Autopsies by the Medical Examiner determined that Zammitti died from a gunshot wound to the head, and the cause of death for Roberts to be a gunshot wound to the back. Prosecutors produced evidence that Fitzpatrick drove to Wakefield from New Hampshire on March 13 and shot the two victims. Fitzpatrick was a friend and neighbor of the Zammitti family, who owned a summer home in New Hampshire. Prosecutors alleged that Fitzpatrick was interested in pursuing a relationship with Zammitti’s wife, Michelle, and killed Zammitti to accomplish that objective. Chester Roberts, prosecutors established, was killed by Fitzpatrick as Roberts was a witness to Zammitti’s murder.

Interestingly, Fitzpatrick had reason for hope in this trial: The prosecution’s first attempt at a conviction in this case, in a July 2008 trial, ended in a mistrial being declared on August 28 2008, after that jury was unable to reach a verdict. That mistrial very likely occurred, because Zammitti’s wife, Michele, had testified in the first trial that she, in fact, had an affair with Fitzpatrick, deceiving and being unfaithful to her husband, Michael. Doubtless in the minds of that first jury, that admission put her veracity and truthfulness in question. While Michele Zammitti had testified in the first trial that said she had told Fitzpatrick that she was ending the affair and was returning to her husband for good, that jury likely saw reasonable doubt as to whether or not she may also have been culpable in the murders. Fitzpatrick admitted in the first trial that he had an affair with Zammitti's wife, but he denied shooting the victims. The week after the shooting, Michele began cooperating with police and made a two-hour phone call to Fitzpatrick that was secretly recorded. This time, this jury didn’t see any reasonable doubt.

Commenting on the convictions, Middlesex County District Attorney Gerald Leone said, “We are thankful to the jury for returning a just verdict on behalf of Michael Zammitti, Jr. and Chester Roberts,” District Attorney Leone said. “Sean Fitzpatrick — in a cold-blooded and reprehensible act — took the life of the man who stood in the way of what he wanted. He then cowardly eliminated the only eyewitness, Chester Roberts, by shooting him in the back. “I want to thank the members of our trial team, as well as the Massachusetts State Police and Wakefield Police, for their outstanding work over the course of nearly three years and two trials,” Leone added. Fitzpatrick’s defense attorney declined comment. The prosecution's case was tried by Assistant District Attorney Daniel Bennett, and Deputy District Attorney Denise Casper.

By the way, for readers wondering how someone can be tried twice on the same charges: The constitutional prohibition against "double jeopardy" applies only to acquittals, not mistrials.

Continuing my discussion of Elliot Weinstein and Stephanie Page’s complaints of legal media analysts’ commentaries of the Entwistle trial, from my previous post:

Fact: On the day the verdict was delivered, talk radio was abuzz with news of the verdict, especially WRKO-680AM/Boston. Almost all callers to the Howie Carr Show (the flagship program on that station,) that day were in strong support of Entwistle’s conviction, and overwhelmingly critical and disparaging (to say the least) of the defense team. I called in on the air to defend the criminal justice system, and the performance of these two lawyers in particular, stressing that criminal defense lawyers are ethically bound to zealously defend their clients. This, too, apparently escaped notice by Weinstein or Page in their Massachusetts Lawyers Weekly, (“MLW”) interview of 7/14/08. On the evening that the verdict was delivered, while a guest on WBZ-AM 1030’s “Nightside With Dan Rea”, (a syndicated program broadcast in multiple states) I again defended these attorneys, advising listeners that constitutionally, the defense is never required to put on a case. This too seemed to escape notice or comment by Weinstein or Page.

Fact: On June 24 2008, I was asked by a Boston Herald reporter if I thought the fact that the jury had not yet returned a verdict, bode well for either the prosecution or defense. In that Boston Herald story published June 25, I indicated the jury could go either way, and stated: “They have a man’s life at stake. They hopefully will be methodical.” This, too, apparently escaped notice by both these attorneys. What didn’t escape their notice, however, was a piece in the Boston Herald the previous day, on June 24 - and that’s where things got interesting. In responding to a reporter’s question on whether I thought the defense’s strategy to not call Entwistle as a witness was a wise decision or not, I said that it was wise, and opined, ”One of Neil Entwistle’s worst enemies in this trial has been has own mouth. He’s not insane, he’s just narcissistic.”

I made that comment based upon a number of patently conflicting statements Entwistle made to state police investigators both before and after his arrest, regarding his activities surrounding the murder. These conflicting statements are a matter of fact, they speak for themselves as to how much they would have harmed Entwistle as a witness, and I stand by my comments. Notwithstanding, Stephanie Page didn’t like this comment, and approached me outside the courtroom the next day to question me and complain about the comment. Not one word from either of these lawyers was offered before this comment, but protest aplenty came forth immediately afterward. Selective review of my media coverage and commentary? It certainly seems so to me. I find it hardly fair, and not at all a balanced response.

Weinstein/Page assertions in MLW: MLW’s story discusses at length the subject of Ms. Page’s cross-examination of Medical Examiner William Zane, and the “wave of criticism from legal analysts” that she received following her suggestion that Rachel Entwistle may have killed herself. Weinstein observes that “There was a lawyer who offered an opinion with 99 per cent certainty about why it was that Stephanie conducted the examination of the medical examiner. He was 99 per cent certain, but he was 100 per cent wrong.” In my interview with MLW, I acknowledged that I indeed wrote this opinion in one of my blog postings (June 20 2008.). Page is quoted as saying that the theory I offered, i.e., that it was she who was chosen to cross-examine the medical examiner and suggest a murder-suicide theory (instead of Weinstein,) “included a preposterous premise that Weinstein refused to participate due to his objection to the strategy” (of suggesting murder-suicide; bold emphasis added.) That is an entirely false and incorrect characterization of what I wrote.

Fact: In my June 20 2008 blog post I wrote: “I would most certainly not have wanted to be the one advancing this (suicide) theory... 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 whom between the two of them was going to… 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.” (Bold emphasis added.)

I never wrote, or even suggested, that Weinstein “refused to participate due to his objection to the strategy” (of suggesting a murder-suicide.) I simply opined that such a harsh strategy might have been judged to be less offensive if offered by a woman, on the central subject of women and suicide. Further, I based my opinion largely on the fact that, up to that point, it was Weinstein who had conducted at least 90 per cent of witness cross examinations, and not Page.

These two lawyers zealously defended their client, who received a fair trial. They had their 15 minutes of fame, with a case almost no one could win, and they lost. I wish them the best of luck with their appeal. Now would they please do the rest of us a favor? Stop complaining and fade to black.

Let us all now put this matter to rest, and put it behind us. Case closed. (Pending appeal.)

In my previous post, I discussed how Neil Entwistle’s attorneys, Elliot Weinstein and Stephanie Page, had conducted an extensive sit-down post-trial interview with Massachusetts Lawyers’ Weekly, which appeared in the July 14 2008 edition of Massachusetts Lawyers Weekly. Weinstein and Page said several things in that interview, and I’d like to respond here with a few facts. By way of full disclosure, I also submitted a Letter to The Editor to Lawyers Weekly, which was published in the August 4 2008 edition of Massachusetts Lawyers Weekly, citing some of the same points I will mention below. (However, due to editorial restrictions at Lawyers Weekly, that letter was capped at 1500 words, preventing a broader and more detailed discussion of the facts.)

Herewith follow excerpts of some of the more interesting points in the July 14 2008 Lawyers Weekly interview, and my responses to each of those points (Note: “MLW” refers to Massachusetts Lawyers Weekly):

Weinstein/Page Assertions in MLW: Referring to media analysts, Mr. Weinstein states: “Their comments build upon a cynical view of the law, the courts and lawyers …Their views and opinions showed a total disregard and disrespect for the basic principles of what our criminal courts are all about.”

My Response: This type of hyperbole strains credulity. First, I will remind both these lawyers: The commentators they made reference to, like myself, are or have been either prosecutors or criminal defense attorneys. Defending “the basic principles of what our criminal courts are all about,” is what we have devoted our professions to. Despite what they might think, Mr. Weinstein and Ms. Page are not the ‘white knights’ defending our criminal justice system, while the rest of us are its enemies.

Second, that Mr. Weinstein would accuse lawyer commentators of stating opinions publicly “because it would give them their 15 minutes of fame” would be laughable if it weren’t so hypocritical. Mr. Weinstein has on several occasions in the past done the very same thing, on cases where he has not been involved as counsel. Indeed, his own practice web site, under “Professional Activities,” identifies him as a “Media Analyst and Commentator.” Are people to assume that if the Boston Globe or a national media outlet called Mr. Weinstein and asked him to comment on a case in the media, criminal or civil, he would decline? Or that his commentary is noble while other lawyers are shameless ego-maniacs? Please.

Fact: Weinstein and Page went to quite some lengths in their MLW interview, to disparage what they perceived as excessive criticism of them and their trial strategy, by media legal analysts, myself included. The fact is, I defended these two lawyers in my media analysis of this case, on more than one occasion. In response to much public criticism aimed at the defense team for advancing the “Rachel Did It” murder-suicide theory in their closing argument, I defended these two attorneys in my blog posting dated June 25 2008, as follows: “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 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.” (Bold emphasis original.)

I’ll discuss more in a third, and thankfully final, post on this subject later this week.

Will the detritus from the Entwistle case never cease? An interesting thing happened on the way to summer last month. I haven’t yet talked about it here, but for some time I’ve wanted to. Here’s the background: The July 14 2008 edition of Massachusetts Lawyers Weekly, the paper of record for the legal profession in Massachusetts, featured a front page, above-the-fold story headlined “Post-Trial, Entwistle Team Fires Back At Lawyers Who Offered Commentary.” In that feature story, which was written from a sit-down interview with both Elliot Weinstein and Stephanie Page (Entwistle’s lawyers,) Weinstein and Page railed on about how fellow lawyers who served as media commentators (like me) essentially had no business doing so, and were seemingly aligned against them and their client in that sad and tragic case. In the Lawyers Weekly story, I was specifically mentioned among other legal media analysts, as being “shameful” and “uninformed” in my media analysis of this case.

Actually, the precise language used by Weinstein and Page in that story was even more histrionic than just those two words offered above. Excerpts of some of their comments will follow in a later post, but for the immediate, let me ask: Will these two lawyers ever cease complaining? It really is rather pathetic, in and of itself. Here are two talented criminal defense attorneys, who apparently felt (and may possibly still feel) the need to carry on like two professional victims. When I first developed this blog, I wanted it to be about more than reporting news and developments in Massachusetts criminal law and criminal practice, important as those functions are. I also wanted this blog to be an honest approach to both the theory and practice of criminal law, to peel back the complicated layers and show what really goes on in day-to-day practice. As much as possible, I don’t want to varnish things in this blog.

In that vein, that means admitting when things have gone wrong in a given situation – whether by me, my colleagues, or anyone else. It also means doing the best I can, in the best way I know how, and not looking for excuses or scapegoats if things don't go my way. If I can do that, why can’t my colleagues Weinstein and Page? Why must they persist in whining and complaining when things here didn’t go their way? Why must they have pointed the finger of blame at others, effectively laying the cause for their defeat on other parties, instead of taking their licks, standing tall, and resolving to do the best they can with their appeal? Acting in the manner these two lawyers acted post-trial, not only diminishes their own reputations, it does not help the image of the average criminal defense attorney, either. I’m fully aware of how criminal defense attorneys can be perceived by many members of the general public, and very unfortunately, a lot of it isn’t flattering. Behavior like Weinstein's and Page' post trial behavior doesn’t help.

When many members of the public follow a high-profile trial like this, where the evidence against the defendant was overwhelming, they observe more than just televised proceedings and the verdict. When, after the defendant is convicted based on this overwhelming evidence, they watch the defendant’s attorneys stand in front of the press and state that the judge was unfair in some of her rulings (on the venue selection, at least,); that the jurors were unfair, that the media was unfair and biased; and that even some of their colleagues at the bar who served as media analysts were unfair to them in their commentary and analysis, this damages the images and reputations of all criminal defense attorneys. These two attorneys would have stood much taller had they simply, after the verdict, stated something along the general lines of “We disagree with the jury’s verdict, but we will proceed immediately with our appeal, with the same zeal with which we tried this case before this jury. We will argue our legal issues before the Supreme Judicial Court, and have no further comment.”

Unfortunately, that’s not what happened. More on what did happen, in my next post.

The trial of a New Hampshire man accused of murdering two men as part of an alleged love triangle is moving forward in a courtroom in Middlesex Superior Court in Woburn, with a few interesting twists.

Sean Fitzpatrick is accused of murdering Michael Zammitti, the husband of a woman named Michele Zammitti, as part of what prosecutors say was his plan to ‘eliminate’ Mr. Zammitti so that Fitzpatrick and Michele could be together. According to prosecutors, Michele Zammmitti, who was having an affair with Fitzpatrick, had reportedly told Fitzpatrick that she planned to return to her husband, and Fitzpatrick was allegedly desperate to stop that from happening. Not only is Fitzpatrick accused of murdering Michael Zammitti, he is also accused of murdering an alleged witness to that murder, a co-worker of Michael Zammitti’s by the name of Chester Roberts. Both men were shot to death on March 16 2006, outside their workplace.

A couple of interesting developments, so far in the trial: The prosecution contends that Fitzpatrick acted alone, without the knowledge of Michele Zammitti. The prosecution also contends that Michele Zammitti broke off the affair with Fitzpatrick “several weeks” before the murders – and Michele Zammitti has testified on the witness stand to this direct effect. However, Fitzpatrick’s defense attorney, Randy Gioia, successfully brought out, under cross examination of Michele, that in fact she continued to have contact with Fitzgerald right up until the weekend prior to the killings. In fact, according to her testimony under cross examination, Michele had engaged in more than thirty phone calls with Fitzpatrick between the time she claimed to have severed the affair with him, and the time of the killings. That will be an interesting point for the jury to consider when weighing this key witness’ credibility. Is she telling the truth, or is she cooperating with the prosecution to avoid charges against her, in the hope the prosecution can catch the ‘bigger fish’ here? It’s uncertain. Neither I nor any other observers can say at this point.

Yet, it’s certainly cause for question as to how the prosecution’s key witness, an admitted adulterer (which goes to that person’s propensity for honesty or veracity,) can claim to have ‘broken off’ an illicit affair with someone at a given point in time, then later admit under oath to having had over thirty separate phone calls with that person, afterward. That reason for question is especially critical when the witness is one of the two people involved in that illicit affair, who is not charged with the murder of the husband she was cheating on. Does this mean Michele Zammitti is lying? Not necessarily, and there has been no direct evidence of that, yet. But it does mean that this jury better be listening carefully. As I often say, “There’s always a story behind the story.”

More on this trial later.

Summer went and interrupted again my writing again. Like everyone, I need to recharge my batteries, and as I don’t ski in winter or go hiking in spring, summer is my time of year. When it hits, I usually head south to Cape Cod whenever my schedule allows, and (so far, anyway,) my computer doesn’t come with me (though I’m sure that will change in time.) My apologies to any of my readers who’ve missed my writing.

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.

In my previous post, I discussed the events surrounding the unsolved murder of Dr. Linda Goudey and the successful wrongful death lawsuit brought by her family, against Dr. Timothy Stryker, whom they believe murdered Dr. Goudey in 1993. Earlier this week, Dr. Stryker was arrested by police and charged – but not with murder. Instead, he was charged with multiple counts of perjury, conspiracy to commit perjury, bribing a witness as well as multiple counts of subornation of perjury (“subornation of perjury” means orchestrating a plan of perjury with another person.) Why these charges? Read on.

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.

It’s not unheard of for murder cases to go unsolved. This only makes the pain even worse for the victim’s loved ones and family. Such was and has been the case for the family of the late Dr. Linda Goudey, who was found strangled to death in the trunk of her car in the parking lot of the New England Memorial Hospital in Stoneham, Massachusetts, in October of 1993. Dr. Goudey had worked as an obstetrician at the hospital. She had also dated another doctor for the previous four years, an endocrinologist by the name of Timothy Stryker. Prior to her death, Goudey had confided to friends and family that she feared Dr. Stryker would “kill her if (she) didn’t accompany him on an upcoming trip to the Caribbean.” Shortly after making those statements, Dr. Goudey was found murdered.

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.

I wanted to post some final comments on this trial. I’ve been hearing a lot of talk in the past few days, about the “winners” and the “losers” in this case. I think that’s highly misplaced language, and mis-prioritized thinking. Yes, it can be said, in a colloquial sense, that the prosecution “won” their case; and that the defense “lost” theirs. Also true, in a not-so-behind the scenes fashion, careers have been enhanced here. Of necessity, many people became prominent in the public eye during this case, due in part to their hard work on this case. I would not think it unlikely that the increased visibility and stature that such a public profile brings, may advance the careers of more than one person involved in this case, even police investigators and members of the media. And I don’t think there is anything wrong with that, at all. Such players didn’t ask for this tragedy; they were injected into this for various reasons, and most did an admirable job.

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.

And now it is over. The jury has spoken, and Neil Entwistle will spend the rest of his life behind bars in a Massachusetts state prison. In just over 11 hours of deliberations, the jury returned guilty verdicts on all four counts- most notably the two counts of murder in the first degree, one each for Rachel Entwistle and Lillian Entwistle. I was not surprised by the short period of time taken by this jury to reach its decision. The evidence against Entwistle was, in probably the most descriptive and apt word available here, overwhelming. The theory advanced by the defense, that Rachel killed her baby and herself in a murder-suicide, was a desperate measure by a legal team that did not lack talent, but lacked any valuable exculpatory evidence to work with. That was this legal team’s “luck of the draw”, as it always is with any criminal defense attorney representing a client: As an attorney, you cannot hand-pick your “dream client”: You do the best you can with what is placed before you.

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.

And now we wait.

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.

In my previous post I discussed how I expect that when the defense opens its case this week, it will offer as one (or more) of its chief witnesses, an expert in the field of depression and suicide in women. I wrote that I expect such a witness(es) will testify that it is “possible” that Rachel Entwistle murdered her baby, then committed suicide, because she was depressed due to a variety of factors, including the fact that her husband was seeking sex with strangers on the internet.

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.

For a time yesterday (Friday June 20 2008) it appeared the prosecution may have finished with its last witness, State Police Sgt. Robert Manning, but a technical difficulty preventing the jury from adequately hearing the recording. Because of this, Judge Diane Kottmeyer decided to end testimony for the day. Sgt. Manning was the state police investigator who first called Entwistle at his parents’ home in Worksop, England, to inform him of Rachel and Lillian’s deaths. Manning also spoke to Entwistle by phone on subsequent occasions, prior to his extradition back to Massachusetts.

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.

Today’s testimony from Medical Examiner William Zane was graphic and disturbing. His testimony laid out in pathological, medical detail how both Rachel Entwistle and her baby, Lillian, died. What made the testimony difficult to absorb, apart from the fact that two innocent lives were stolen, was how calculated the murders were, and how physically close the murderer must have been to Rachel and the baby when the shots were fired. Lillian was shot through the abdomen, the bullet piercing her liver and kidney, fracturing a dorsal rib before it exited her back. Once exiting, it penetrated Rachel’s left breast, where it lodged. While the bullet wound was fatal to Lillian, the wound to Rachel’s breast tissue was not at all fatal.

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.”

As I expected, Friday the 13th didn’t hold any pleasant surprises for Neil Entwistle. Before going into Friday’s developments, I want to comment on the style of the prosecutor in this case, Michael Fabbri. It’s obvious he is not a grandiose person, given to theatrics. Instead, he is taking a great deal of time to be methodical and exacting. And just as importantly, I noticed he is taking considerable time to preemptively address points that Entwistle’s defense team will doubtless hope to raise when they eventually put on their case. That's an example of intelligent lawyering. If you noticed, Fabbri undertook a considerable amount of time examining Joseph Matterazzo, Rachel Entwistle’s stepfather, regarding his activities and whereabouts the day of the murder. He went to great lengths to make sure that there were multiple witnesses who have corroborated Mr. Matterazzo’s whereabouts and activities that day, and he examined in painstaking detail Mr. Matterazzo’s complete lack of either opportunity or motive to harm Rachel Entwistle, right down to Rachel’s finances. This is so because the murder weapon belonged to Matterazzo, and Entwistle’s defense team is doubtless going to try and raise doubts in the minds of jurors about Mr. Matterazzo. The defense team won’t find many opportunities there.

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?

My apologies for not posting an entry last night, as promised in my last post. I appeared on Court TV (now called TruTV) on Wednesday, providing live commentary and analysis of the trial, and my time during the balance of the afternoon and evening became very limited.

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.

Things aren’t getting much better for Neil Entwistle as the trial moves into its seventh day now. Of course, bear in mind that at this procedural point in the trial, it wouldn’t be expected that Entwistle’s world would look too bright, but as I said in my last post on this trial, Entwistle’s lawyers have their work cut out for them.

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.

Elliot Weinstein has his work cut out for him. So far, judge Dianne Kottmeyer has denied the attorney for Neil Entwistle’s motions for both a change of venue and dismissal of charges based on excessive pre-trial publicity. No reasonable legal observers expected the judge to grant either motion, especially the motion to move the venue to Duke’s County in Martha’s Vineyard, where, we all know, no one reads a newspaper, watches television, and the only thing they ‘surf” is the waves in Vineyard Sound. Which is hardly to criticize Mr. Weinstein: He is doing exactly what he should do as a defense lawyer: Use every legal vehicle, motion and tactic possible to defend his client. However, so far, 21st century reality has stepped in to limit those options.

As of Friday (June 6) prosecution testimony from both Rachel Entwistle’s mother, Priscilla Matterazzo, has served the prosecution’s objectives: Matterazzo, testified that Neil Entwistle did, in fact, know how to get into the Matterazzo’s home in Carver, Massachusetts. This directly contradicted Neil Entwistle’s statement to police, that he didn’t know how to get into the Matterazzo’s home, where the gun that killed the victims was located. More so, Matterazzo testified that the defendant had acted strange and distant at the time the couple moved into the Hopkinton, Massachusetts home they had rented two days before the murders. Rachel’s uncle, Lloyd Cook, is expected to take the stand and be cross-examined tomorrow by the defense (Monday June 9), when he will likely have some very interesting things to say.

While certainly anything can happen between now and the moment the jury gets this case for deliberations, Entwistle’s two attorneys’ have their jobs cut our for them in this case. I say this as a criminal defense attorney, knowing that a defense attorney’s job is to install reasonable doubt in the minds of the jury. So far, I don’t think this jury is doubting too much, but as I said, anything can happen in a trial like this. So stay tuned to this blog, and I’ll keep you posted on developments, and my analysis.

In my last entry, I spoke about how the evidence in the 1996 John Salvi murder case was overflowing with expert testimony that Salvi was insane at the time of the abortion clinic murders that he committed. Despite this, many observers wished there existed a death penalty in Massachusetts. To those who said this, (including non-attorney friends of mine) I argued that it was patently clear from both expert and non-expert testimony in that trial, that John Salvi was mentally ill, and hence that he should not be found "Guilty," but instead "Not Guilty By Reason Of Insanity." Yet, when people hear those first two words in an emotionally charged case such as the Salvi case, and now in the Odgren case, too many just can't seem to handle it. Some just 'blow up.' The truth is, they can't grasp this verdict. They don't understand it. They think it means the defendant is freed from his handcuffs, to walk out of the courthouse. While the truth is far from this, at least the average person wasn't instructed on this fact, as was the John Salvi jury. They knew the difference, which is:

A verdict of "Not Guilty By Reason Of Insanity" doesn't mean the defendant didn't commit the act. It doesn't mean that he or she won't be incarcerated for either a very, very long time or possibly life. The truth: The defendant will be locked away in a state correctional facility - it will just have a different sign on the front of it: A state hospital for the criminally insane. All this verdict means is that - legally - the defendant cannot be held to the same standard of judgment that a sane person would be held to (say, a gang member or mobster who killed for money).

But if anyone needs an example of just how resistant people are to the first two words in a verdict of "Not Guilty By Reason Of Insanity", consider this: The jury in the John Salvi case knew the difference between this verdict, and a straight "Guilty" verdict. The knew the consequences of both. They knew that Salvi would not be released if they returned a verdict of Not Guilty By Reason Of Insanity - they knew he would be locked away. And yet they still judged this man as though he were entirely sane. Verdict: Guilty. Result: Life in prison in Cedar Junction state prison (formerly, and still, called "Walpole State Prison") --housing the most violent, sadistic criminals the state has ever seen.

A few months later, after being thrown into this general prison population of the most violent thugs in the state, John Salvi hung himself in his prison cell.

A terrible loss? I'm not saying that. Neither am I trying to create a kind of post-mortem sympathy for John Salvi (though his life was pitiable). But I am saying his conviction on this charge was a terrible tragedy. And this tragedy - compounded by the deaths of two innocent people - is that a clearly insane man, obviously incapable of conforming his actions to the law as you and I can - was judged to be perfectly sane, and given a sentence that any sane, hired gun would get: Life in Walpole State Prison.

The Salvi jury didn't deliver justice. It delivered vengeance. And that is anything but what should have happened.

Have we learned anything since then?

I hope we have, because another trial is about to take place in Massachusetts, equally horrific, equally tragic and equally baffling. No one yet knows for certain what the evidence will reveal in this case. It could be that young Odgren does not in any way suffer from a defect in reasoning that his lawyer will almost surely claim. It could be he was perfectly aware of what he was doing when he killed his young classmate. If that is the case, then let the verdict, and the punishment, fit the crime.

But if the medical evidence in this case speaks to the conclusion that this boy was mentally incapable of understanding what he did, then I for one hope this jury will listen, unlike the jury in the Salvi case.

I asked previously: Will the jury in this case ignore the medical evidence as the jury did in the 1996 John Salvi murder trial in Norfolk County, Massachusetts and act out of emotion and vengeance? We will compound this tragedy even further, and throw this 17-year-old into Walpole State Prison, if the truth is he belongs locked in a psychiatric facility?

Let us wait for the evidence, and hope that, this time, true justice is done.

A later blog will follow on a possible solution to these types of emotionally charged cases: The "Professional Jury."

In my previous entry on this case, I made the point that when a jury returns a verdict that a defendant is found to be "Not Guilty By Reason Of Insanity", that defendant is not released to the public, but is incarcerated in a state correctional facility for the criminally insane. When trying a case like this, the end purpose of justice should not be revenge. It should be two-fold: 1) Protecting the public from such a dangerous person, and 2) Treating that person. When sane defendants kill, and they are not legally determined to be "mentally ill," they should be punished. That means locked up, and the rest of us made safe from them. Aside from "punishment", many would say that is "vengeance.". I think that is true.

But if this young boy in fact was prevented from controlling his thoughts or actions due to a medical condition, then justice is not served through vengeance. It would not be served by throwing him into the general population of a state prison - a hell few who have not seen such can understand.

I made this argument to friends of mine in the John Salvi case here in Massachusetts,12 years ago. (That case involved a man who went on a shooting spree at two abortion clinics in the Boston area, killing two women, while claiming that "Saint Paul and other saints" told him to "punish the wicked"). Prosecutors charged Salvi with First Degree Murder. Evidence in the case made clear that Salvi had suffered from schizophrenia since he was approximately 17 (he was in his mid-20's at the time of the crime). He lived secluded alone in a trash-strewn, filth-ridden apartment - the equivalent of a garbage dump - the walls filled with his own written rantings on religion, and quotes from scripture about "sinners." Witness after witness in his trial testified on the stand to observing years of his mental instability, his deranged behavior, and his non-sensical religious rantings. These witness included parishioners at a church who, recently before these murders, witnessed Salvi charge the altar, take over the lectern from a priest giving a sermon, and rant non-sensically about abortion and "sinners." At that incident, Salvi was carried out of the church forcibly, legs and hands flailing. At his murder trial for the abortion killings, his defense lawyer produced expert psychiatrists in the field of schizophrenia, who testified unequivocally that Salvi was mentally ill, and that he lacked the necessary mental capacity to understand the criminal nature of his acts, and that he lacked the mental capacity to conform his actions to the rule of law.

By contrast, the prosecution produced just one "expert" witness - shockingly, not even a psychiatrist, but a PhD in Education, who disputed the assertion that Salvi was mentally ill.

Legally, this was about as easy a call as a jury could get on the evidence. Notwithstanding, you'd be surprised at the number of people who argued "He should hang from the rafters."

But faced with a crime this incomprehensible, all of us - singularly the jury selected for this case - must ask: What makes people act this way? What could drive a 17-year old boy to murder another student, in cold blood, - and this is the key - for no apparent reason whatsoever? There seem to be very few answers, but, legally, one must be chosen.

Among them:

1) Odgren is (ongoingly) mentally ill. This is as opposed to the claim that didn't understand the nature of his act, at the moment he committed it.

2) He is not mentally ill, but instead suffers from a condition that impaired his ability at the time he committed the crime, to understand that what he was doing was wrong and a criminal act. (The apparently planned defense of Asperger's Syndrome).

3) He is neither of the above. He is fully competent now, and was so at the time of the crime. He is simply evil.

For every person who feels that this boy deserves no defense, or should not be allowed to raise this particular defense, they should consider what they would want if he were their son. What if he truly does suffer from some defect that prevented him from either controlling his actions, or understanding the horrid nature of those actions? If true, what if that defense were prohibited, and he were convicted as a "normal," sane person, and thrown in prison with the worst of hardened criminals, who are otherwise sane and responsible for their crimes? Most people could surmise what would happen to a 17-year-old boy who is thrown into the General Population of a state prison filled with the worst and most violent criminals imaginable.

Would that serve justice? Most honest people would say "no." These are not the questions of a defense attorney seeking to play a legal trick. Nor are they the 'soft on crime' position of a liberal (I am a registered, and dedicated, Independent). Instead, they are questions that are required by our criminal justice system. They lay at the core of our system of justice.

If it were true that this boy did suffer from some kind of mental defect that prevented him from either controlling his actions or understanding their criminality, then the defense that his attorney reportedly plans (based on Asperger's Syndrome) is appropriate, and it should be raised. However, so too should the sentence be appropriate. If this defendant were found "Not Guilty" by reason of mental defect such as allegedly caused by Asperger's Syndrome, he should not -- and the public needs to understand that he would not - be freed to walk the streets again. He would be -- and should be -- committed to and incarcerated in a state hospital for the mentally ill, safely away from the rest of us. And that is where he would be held, until such time - if any - as psychiatrists determined that he is no longer a threat to society.

In my last entry that discussed the Lincoln, Massachusetts high school student accused of First Degree Murder in the killing of another student at Lincoln-Sudbury High School, I discussed John Odgren's attorney's reported plans to raise a defense of "Diminished Mental Capacity". However, that's a pretty general defense, and if it is ever going to succeed in any kind of trial like this one, the particulars of how and why the defendant could not understand that his acts were criminal, all have to be produced. If a defense attorney wants to win, he or she can't just 'claim' a general defense like this. The specifics have to be 'filled in.' Odgren's defense attorney reportedly plans to accomplish that here, by specifically claiming that his client suffers from "Asperger's Syndrome" - a mild form of autism that some observers in the medical community assert is associated with thoughts of weapons and violence. Odgren's defense intends to show that because he suffers from this disorder, he lacked the necessary mental capacity to premeditate the act or understand the criminality of his act - and hence, he cannot be guilty of the crime for which he is formally charged, Murder in the First Degree.

"What's the big deal?" some might say. If the jury doesn't find him guilty of First Degree Murder, they can find him guilty of Second Degree, or perhaps Third Degree Murder. Possibly, but the problem is, young John Odgren hasn't been charged with those crimes - he's only been indicted (so far) for First Degree Murder. His lawyer is trying to get that indictment thrown out, but so far, it hasn't been. Were Odgren to remain indicted and charged only for First Degree Murder, and if his attorney could, through this defense theory, establish reasonable doubt in the minds of sufficient jurors that Odgren lacked the necessary ability to understand the criminality of his act, then he might be acquitted of the charge of Murder in the First Degree.

That seems to enrage a lot of people. Frankly, many people are tired of seeing high-profile defendants accused of horrific crimes, acquitted on the basis of "theoretical" or specious defenses. I understand how such people might feel. Their attitude: "Lock 'em up, and throw away the key."

Welcome to my first blog post on this site. It's my hope that readers will find my thoughts, opinions, musings and postings to be educational, informative, and, sometimes hopefully, provocative toward a better criminal justice system in Massachusetts, and in other states.

For this first entry, I'd like to comment about a case soon to be tried in Cambridge, Middlesex County, involving charges of First Degree Murder against John Odgren, a 17-year-old boy at Lincoln-Sudbury Regional High School here in Massachusetts. My first blog on this case will discuss what his anticipated defense is, and why he is entitled to it. A second blog, later, will discuss arguments, pro and con, for what are called "Professional Juries."

Unlike many cases involving violent crimes in high schools, the high school in this case is nothing like so many of the underfunded, crowded, urban high schools in cities across the United States, where violence is sadly no stranger. It's a highly-rated public high school, in an upscale town, surrounded by well-to-do, wealthy communities. And unlike many such youthful defendants accused of violent crime in schools, this defendant is anything but a gang member or local 'tough'. He is a bespeckled, slight, and dimunitive student: To look at him, he resembles either Harry Potter or the proverbial "98-Pound Weakling."

Except this '98-Pound Weakling' lured a fellow student into a boys bathroom in the high school - a student he didn't even know and had apparently no history with at all - and plunged a carving knife into his heart five times, killing him on the spot. When he was done, Odgren openly admitted to bystanders that he killed the boy. He reportedly even helped to try and stop the bleeding in his victim's wounds. No one - neither his attorney nor his family - disputes that he committed this murder. His attorney has indicated that his legal defense - obvious to all attorneys watching - will be based on a legal principle known as "Lack of Criminal Responsibility." This defense essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. This defense doesn't claim "insanity" - permanent or temporary. Rather, it advances the argument that an impediment in the defendant's mental state at the time of the crime, prevented him from either forming the necessary intent, or from understanding or appreciating the criminal nature of his act.