Thoughts on the Art of Persuasion and the Defense in the Entwistle Case

by Lee Gesmer on June 30, 2008

Some thoughts on the recently concluded Entwistle murder trial in Massachusetts.

A trial is the art of persuasion.

Civil or criminal, jury or jury-waived, the same principles of persuasion apply. Generations of lawyers have spent their careers thinking about these principles, trying to understand, refine and apply them. The huge number of uncontrollable variables in a courtroom make trial persuasion an art rather than a science, but as in all competitive activities, even small advantages can increase your odds, so lawyers keep studying and trying.

Some of the most basic principles of trial advocacy are well accepted by now. One of these is captured by the expression: “tell them what you’re going to tell them, tell it to them, and them tell them what you told them.” In a trial, this rule of advocacy applies most importantly to what lawyers call the “theory of the case.”

Every experienced lawyer knows the persuasive importance of “primacy” (the first things the jury hears) and “recency” (the last things they hear). Simply put, people tend to remember the first and last things they hear better than the stuff in the middle. The principle of “primacy” is so important that many studies have found that jurors are inordinately influenced by the opening statement in a trial, and therefore most lawyers put particular effort into crafting their openings. Some jurors pay little attention to anything except the openings and closings. As the jury experts at DecisionQuest write:

Jurors listen deductively, developing a story that explains the conflict early in the trial process and then filtering the evidence selectively to maintain a consistent picture. The trial lawyer must tell a complete story – which includes compelling themes, a specific narrative structure, and narrative elements – in the opening statement if he or she is to get jurors to form a favorable story of the case.

Lawyers also are taught early on that every party in a case needs a “theory of the case.” The evidence presented by each side is designed to explain the evidence in a way that is consistent with that theory. Common examples are: “my client wasn’t negligent, the injured plaintiff was reckless.” Or, “my client didn’t commit the crime, the evidence the State is using to attempt to convict him is defective because the crime lab mishandled it.”

Or, less commonly, “my client didn’t murder his wife and child. His wife killed their daughter and then committed suicide. My client removed the murder weapon from the murder site in order avoid shaming his wife’s memory. ”

Typically, the theory of the case is introduced in the opening statement (tell them what you’re going to tell them), and each side attempts to introduce evidence to support its theory and discredit the competing theory (tell it to them). In final argument, the lawyers for each party attempt to persuade the jury that the facts and the opinions of experts support their theory (tell them what you told them). By then, the jury has heard each party’s theory repeatedly. And most importantly, the opening statement has given the jury a mental framework within which to organize and make sense of the (often chaotic) evidence presented during the trial.

It appears that these basic rules of persuasion were not followed in the Entwistle case. Defense counsel for Neil Enwistle did not introduce his defense theory during his opening, but rather introduced it in closing argument. As one Boston paper summarized:

“Neil found Rachel and Lillian dead,” defense attorney Elliot Weinstein said in his closing argument in Middlesex Superior Court, where he said Entwistle had returned the gun to his in-laws’ home and did not report finding the bodies because he did not want to shame his wife.

“Neil saw the .22 and knew instantly what had happened, and in those moments, he knew what he had to do and what he couldn’t do,” Weinstein said. “He had to get the .22 back to Carver, and he couldn’t call the police because he couldn’t tell them what Rachel did. He wouldn’t tell them because he wouldn’t tarnish Rachel’s memory.”Was he thinking rationally, clearly or correctly? Of course not. How could he? Neil drove to Carver and returned the .22.”

If this is accurate, this defense violated every rule in the book.

First, the jury was unprepared for this “suprise” defense theory. The jury didn’t hear it fully expressed until closing, although I understand it may have been hinted at or implied during the trial (but not in the defense’s opening statement). For the jury to hear this theory for the first time in closing was the worst possible way for Entwistle to present it. It required the jury to test the theory against the evidence after the evidence had been introduced, rather than as it was being introduced. A worse approach to the psychology of persuasion is hard to imagine.

Second, from what I’ve read about the trial, the defense gave the jury no evidence to support this theory of the case. No only did Entwistle not testify to what he did and his motivation for doing it (he didn’t testify at all), but no one else provided any evidence to support this theory.

Along the same lines, the defense presented no expert testimony on the phenomenom of postpartum depression. There was no evidence showing that Entwistle’s wife was depressed, much less that she was so depressed that she would kill her baby daughter and then herself. If such evidence had been available, and expert opinion explaining postpartum depression and its possible consequences would have been essential to the defense.

Judges always instruct jurors that the evidence comes from the testimony of witnesses, as well as documents or objects (guns, clothing) that are allowed into evidence. What the lawyers say is not evidence. The Entwistle defense may have presented a theory of the case in closing argument — depression, murder, suicide, husband found wife and daughter, husband returned the gun to the wife’s father’s house to avoid shaming his wife — but there was no evidence to support this theory.

Rarely has a defense to a murder charge been so weak. It’s possible that Entwistle played the only hand he had and prayed for a miracle. It’s also possible that the district attorney’s office was unwilling to negotiate a plea that was acceptable to Entwistle, and Entwistle felt he had nothing to lose by going to trial.

However, to me the defense recalled the old Lenny Bruce line, “if your old lady walks in on you [when you’re in bed with another woman] deny it. Yeah. Just flat out and she’ll believe it.”

(Disclaimer: I am not a criminal lawyer, and I did not attend this trial. The trial was covered heavily by the Boston press, and my observations are based on media reporting. This is the first time, and very likely the last time, that I will comment on a criminal case in this blog, but the rules of persuasion are much the same in a capital case and a case involving the infringement of intellectual property rights, and hence my interest in the defense in this case.)

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