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.

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.

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.

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.

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.

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.

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.”

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.