The Kickham Comment - Boston Criminal Attorney Blog
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.