Judge in Neil Entwistle trial has her head in the sand

Neil Entwistle is on trial for the murder of his wife and child. The details are quite sordid and appalling and not particularly relevant to this post.

This case has generated large-scale media attention, in Massachusetts, the rest of the US, and in England, Mr. Entwistle's home country. It is rather standard by now for the defendant in a case of this magnitude to use a trial consultant to help identify potential biased jurors. The primary concern is the saturation of the jury pool with pretrial publicity, especially that which is prejudicial to the defendant.

Massachusetts has one of the most liberal statutes with respect to the availability of public funds with which indigent defendants can hire experts. The language of the statute reflects the basic premise that if a paying defendant would reasonably hire such an expert, the indigent defendant should be able to, as well. Unfortunately, the statute is rarely interpreted as liberally as it appears on its face. So far as I know, no defendant has ever been awarded public funds to hire a jury consultant.

Judge Diane Kottmyer flatly refused requests by Entwistle's attorneys for money to pay for a trial consultant in this case. Her rationale was that it had never been done before, so she didn't have to do it now. She never addressed the actual merits of affording Entwistle this procedural protection in a case so prominent in the public eye. Judge Kottmyer assured counsel that she could handle the issue of pretrial publicity by issuing the jury proper instructions to disregard anything they might have heard, read or seen about the case in advance. Alas, the judge's assertion here is simply ignorant. Every single study that has ever been published about the effects of pretrial publicity has concluded that such limiting instructions are completely useless.

Judge Kottmyer similarly refused motions for attorney conducted vior dire, sequestered voir dire, a change of venue and even an extensive supplemental juror questionnaire. After allowing the lawyers to submit some questions for a questionnaire, the judge decided that she would write her own, allowing no input from either counsel.

Judge Kottmyer's mindset is a relic of a time when we didn't actually know anything about jury behavior. She believes that the best way to learn if a potential juror might be biased is to ask her, "Will you be biased?" Research into the effects of pretrial publicity show that those would-be jurors who admit to having been exposed to pre-trial publicity, but assert that they can be fair nonetheless, are actually MORE LIKELY to be biased against the defendant than those who admitted that they might have trouble being completely objective. That is, the question sorts the potential jurors IN EXACTLY THE OPPOSITE MANNER AS DESIRED. By insisting on employing antiquated procedures for jury selection, Judge Kottmyer has pretty much guaranteed that Mr. Entwistle will not receive a fair trial.

Many people will be unsympathetic to these objections, on the grounds that Mr. Entwistle is almost certainly guilty of killing his wife and daughter. Remember, however, that the question of whether he killed them is only the first facing the jury. They mush then make difficult judgments about his state of mind at the time, his level of premeditation, and whether any mercy would be appropriate in his circumstances. These factors will translate into a particular verdict, be it first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter. The jury in this case actually wields an enormous amount of discretion and Judge Kottmyer does a great disservice to the Commonwealth by placing this responsibility in the hands of jurors predisposed to view Mr. Entwistle most harshly.

I don't know what the correct verdict is in this case. I only know that I don't have much confidence in a jury so selected to find it.