Can Neil Entwistle Receive a Fair Trial?
Outside the Framingham District Court following his client’s arraignment for two counts of 1st degree murder, Elliot Weinstein intoned, “I don’t know that Mr. Entwistle will ever be able to get a fair trial on these charges. I am certain that anybody watching this telecast or reading the reporting of today’s arraignment has already formed an opinion with respect to Mr. Entwistle’s guilt. … And that opinion is based on absolutely no facts and absolutely no evidence, and that is quite unfortunate.”
In their rush to cover the next big case, the media have reported every available detail of the police investigation into the slayings of Rachel and Lillian Entwistle. The media coverage has been overwhelming. And while most reporters remember to include the word “allegedly” where necessary, the drumbeat of “guilty, guilty, guilty” is barely concealed. No Massachusetts citizen, the semi-conscious included, has escaped the onslaught of reporting.
Was Weinstein right? Is the system incapable of providing Entwistle with twelve impartial jurors? Is there any way to verify that these jurors are untainted by the media swirl, free of bias, and unmotivated by dreams of cashing in on a book deal? The answer is no. Massachusetts courts are notoriously hostile to efforts by either the defense or the prosecution to test the biases of potential jurors or their understanding of the fundamental constitutional underpinnings of a criminal trial, such as the presumption of innocence, the burden of proof, the accused’s Fifth Amendment Right not to incriminate himself, and standard by which to judge the government’s evidence, proof beyond a reasonable doubt.
In most states, defense counsel and the prosecutor are permitted to voir dire the jury pool – directly question potential jurors about their biases, their understanding of the trial mechanics and their willingness to apply the appropriate standard to the evidence. Through their voir dire, Defense counsel and prosecutor educate them on the roles of the attorneys, the jury’s role as fact finders and the judge’s role as the trial’s referee. Because it allows the lawyers a give-and-take session with the potential jurors, voir dire is a tremendous tool for ferreting out potential jurors who have already made up their minds, are eager for some vigilante justice, or motivated by mythical book deals.
In Massachusetts, voir dire is not a tool, but a hoax. Like an apparition, it only gives the appearance of substance. Our “voir dire” amounts to no more than the defense lawyer, and maybe the prosecutor, formally submitting maybe 10 or 20 questions for the judge to ask the jury pool. The judge skims the questions, and if he feels like it, asks the jury pool maybe three or four of them. A conscientious judge will put these questions to the potential juror at sidebar, somewhat out of the hearing of people crowding the courtroom. With the judge standing, and elevated, before the potential juror, a prosecutor over one shoulder and defense counsel over the other, a couple of court officers in nice pressed white shirts a few feet away, a grimacing clerk, and a court reporter taking down his every word, it’s not an environment that promotes a free easy exchange between the citizen and those who seek to know their minds.
In Entwistle’s case, potential jurors who admit that they’ve been marinating in cesspool of negative media coverage and harbor a suspicion that the accused is guilty are shown the door. Those who claim they’ve read or heard little about the case and harbor no such suspicion and say they will keep an open mind throughout the trial take a seat in the jury box. While defense counsel and the prosecutor can still exercise a peremptory challenge on the would-be jurors, they are acting on limited information. The prosecutor will strike those jurors who look like they held up a convenience store on the way to court and defense counsel will strike those who seem like they’d like to make a citizen’s arrest.
And these jurors, with their personal histories, undisclosed prejudices, intellectual habits, and pre-existing knowledge of the accusations will, at the end of the trial, be sent to the deliberating room to ruminate on Entwistle’s fate. Whether after a two month long trial these jurors can distinguish between what they read or heard, separate their long stoked feelings about the murders from their obligation to impartially evaluate the government’s case, or whether they even give a shit about the standard of proof, we’ll never know.
