Guilty of murder one
I meant to write something yesterday about the Neil Entwistle double-murder trial here in Massachusetts. The British citizen was accused of killing his daughter and wife and the substantial trail of evidence left little doubt that he was guilty. What was noteworthy about the defense was that it used the old "the state didn't meet the burden of proof" tactic. The Entwistle defense called no witnesses and fabricated an alternate scenario that nobody could possibly believe. The prosecution could have objected to this "hail mary" but it seemed they were content to give the defense all the rope they needed to hang their client.
Has this tactic of claiming the state failed to reach the burden of proof ever worked? I need a legal mind to give me some background here. In any case, it took the jury all of two days to review Entwistle's internet searches (e.g. "knife in neck kill") to find him guilty on two counts.
4 comments:
Eric,
That tactic works a lot in both civil and criminal trials. In civil trials, I have gotten summary judgment in numerous cases by showing that the Plaintiff could not create a disputed issue of material fact that would require trial on the merits. As for the criminal arena, you only noticed this because it is a high profile case. Often, keeping your guy off the stand or not putting up a defense is good strategy because your case could help the State.
Remember I said this. The "ineffective assistance of counsel" appeal will be forthcoming. His new counsle will argue that by not putting on a defense, he received ineffective assitance, and the court will rule that it was a trial tactic not subject to second guessing and deny the appeal.
Brian - thanks for that. I was also wondering about "ineffective counsel" and whether his lawyer could essentially lie about his client. Doesn't he have to know it isn't a lie to make such statements in closing?
Eric,
I obviously have not seen the transcript. I assume that the attorney just argued to the jury the flaws in the evidence and that what the State presented did not meet the burden of proof required. To me, this is what you do when your guy is guilty as sin. It saves you from having to lie. I think it is a good tactic when you are in that position, one I would not hesitate to use if I felt it necessary.
Here is an interesting Ohio case for you to read to see what I mean (PDF):
http://www.sconet.state.oh.us/rod/docs/pdf/3/2004/2004-ohio-3018.pdf
Eric - Bulldog Pundit from over at Ankle Biting Pundits here. As you know I was a prosecutor for 3 years and done some criminal defense work since then. Have dozens of jury trials under my belt.
The answer to your question is "Yes". The "state didn't meet it's burden" test has worked in the past. I've seen it from both sides after talking to juries. Lost some cases as a prosecutor because of it, and won some cases as a defense attorney using it.
I find that people in the jury box take that oath seriously and I'm glad they do. It's not a perfect system, but as a DA I felt that it was my job to meet that high burden of proof if I was going to take a person's liberty away.
There are ways to explain the "burden of proof" to a jury depending on what side you are on.
I've heard (and occasionally used) defense attorney's say "If your child had a 1 in 100 chance of dying in a plane crash would you put him on the plane? If not, then that's "reasonable doubt" and if you have reasonable doubt you can't find the defendant guilty".
I've also heard the "building" analogy. Says that if you went to look at a house and it looked good from the outside, but you have a question about what appears to be a crack in the wall, that might be a problem in the foundation, would you buy it? No, you'd have reasonable doubt, and if you do hte state has failed to meet it's burden".
As a prosecutor my response to that one was "Of course you would be concerned about hte crack, but you would look at all the evidence and investigate whether or not the crack really is in the foundation, or just something that appears to look like a crack, but when you examine further you see it's not. Then you buy the house. And I tell you ladies and gentleman, that when you look closely at what the defense calls a "crack in the foundation" you'll see it's nothing more than your eyes playing tricks on you and there is no crack".
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