As originally published in Massachusetts Lawyers Weekly.

 

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On its face, the recent Neil Entwistle murder case seemed like a slam dunk for the prosecution.

Entwistle had told investigators he saw the dead bodies of his wife and baby daughter in their Hopkinton home; then, instead of alerting authorities, he dropped off the gun found at the murder scene at his in-laws and flew to England.

Solid evidence of his use of the Internet before and after the murders to look at “companionship sites” added weight to the case and presumably allowed jurors to make inferences about motives.

The defendant’s legal team objected when the judge refused to move the trial from a venue where the media coverage was massive (and anti-defendant from the time the basic facts above were discovered).

And, when voir dire was limited, barring the defense from exploring jurors’ feelings about visiting Internet sex sites, the defendant’s legal team protested even more loudly.

Was there any hope for Entwistle? In fact, the O.J. Simpson murder trial argues there was and shows the roadmap.

Furthermore, it appears from the press coverage that there were jurors who did not vote for conviction initially. If true, that is evidence that there were members of the jury able to support the defense. And, certainly, there are people who still support Entwistle in various blog commentaries.

So, who are these individuals, and what might the defense have been able to do to identify them and make sure they not be struck or removed for cause?

Had a shadow observer of some kind been in court for the Entwistle trial, undoubtedly the defendant’s lawyers would have played their closing differently—and might have put on a defense.

‘Oddball’ Strategy

Criminal cases revolve around cognitive dissonance—the tendency to align information in a way that is consistent with pre-existing beliefs. For example, if you like a politician who then says something stupid, you forgive the comment or put it in context. If a politician you don’t like says the same thing, you seize upon it as a glaring example.

That’s the way it works in court, too. For many people, if the police and prosecution accuse someone of a crime, that person did it. Though far fewer, others have the opposite core belief.

In the O.J. murder case, a majority of the jurors distrusted the police, which colored how they viewed the evidence once it was obvious a policeman had fabricated at least some of the evidence.

In the Entwistle case, the defense needed more jurors who distrust police and/or more jurors with little faith in so-called scientific forensic evidence. Entwistle also could have used jurors whose minds demand that all the “i’s” be dotted and “t’s” crossed so that the circumstantial nature of the evidence would not meet the burden such minds demand.

The worst type of juror in a case such as this is one who identifies with the victim. And, in fact, there was a young mother on the panel. (She has since acknowledged that, while she herself had experienced post-partum depression and thus could relate to a new mother’s depression, she could not possibly accept that any recent mother could murder her child.)

Given the evidence here, the defense’s best shot was likely the “oddball” strategy, which is the default when inference is so strong against your side. In the typical case, in addition to whatever specific jury selection strategy a lawyer has, both sides strike people they feel are likely to be disruptive, if not destructive, to the jury process — a day-to-day irritant to other jurors and/or the kind of person who will disagree just for the sake of doing so.

In fact, our consulting experience is that trials in which there are blind strikes (i.e., each side must designate all their strikes at once as opposed to going back and forth between the parties) usually have at least one double strike.

In this case, the defense should have struck those who would identify with the victim, those who would easily leap from hating the defendant to convicting him, and, if there were strikes left, the consensus-type of juror.

They should not have struck or asked the judge to dismiss any oddballs or non-conformists, no matter what kind of weird answers they might have given. A contrarian personality might well have fought others.

This is obviously important in a case with a defendant whose behavior in not calling the authorities, and then not attending the funeral of his wife and child, would, in accord with cognitive dissonance, automatically prompt a vote to convict. (In fact, a change in venue would not change this prevalent type of thinking.)

Disagreeable People Wanted

The defense lawyers have said they believe the jury wrongly convicted their client because he didn’t testify. While it is true that most people associate not testifying with guilt, there is scant evidence that that was a factor here.

The jurors who have talked to the media seemed quite clear that he had a right not to testify and seemed to have drawn no inference from that fact. The problem was more that the jury had too few oddballs and seemed to do their job well than that they convicted because the defendant did not testify.

In fact, we believe many, if not most, cases are decided once the jury is empanelled, so tactics don’t matter all that much.

However, there obviously are levers a legal team can and should use.

First, the lawyers need to review their planned approach in light of the actual jury selected. This is likely to result more in tweaks (e.g., using football analogies with a male/fan dominated jury versus ones about children if most or all the jurors are parents), but sometimes includes decisions about which witnesses to call based on the actual pool and what was learned about jurors in voir dire.

To optimize these in-trial decisions, it is always worth having someone in court who is not on the legal team but is able to provide daily feedback.

A formalized shadow jury (i.e., a group of two to three “regular people”) is ideal with individual feedback each night. (In the best case, they would not know which side hired them.) If there are is no money available for this, it is worth trying to get a friend of the legal team who can be trusted to be objective to attend the trial daily.

Had a shadow observer of some kind been in court for the Entwistle trial, undoubtedly the defense team would have played its closing differently — and might have put on a defense.

The real jury’s feedback showed that the allegation of a murder-suicide actually hurt the defense side more than having no argument beyond the burden the prosecution did not meet and expressly asking jurors to accept cognitive dissonance and separate hatred for behavior from beyond a reasonable doubt.

Had defense counsel discussed their potential closing with non-lawyers who had heard the entire case, they would have undoubtedly scrapped this out-of-the-blue approach. As noted, one of the jurors was clearly offended by the idea that a young mother (such as the juror) would murder her own child. Another pointed out that if the defense had used the argument in the opening and consistently tried to bolster that possibility, it might have been convincing.

The point is that even the hardest cases are winnable if lawyers remember the diversity of thinking that we humans possess. Most jurors react emotionally to criminal cases. Therefore, in jury selection, lawyers have to look beyond the purely rational to how potential jurors will relate to others. Sometimes the most disagreeable people are just the ones you want on your jury.

Original article.

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